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Medical Malpractice somewhat muddled

Te issue of set asides and liability claims remains because Medicare representatives

continue to speak out of both sides of their mouth. Tey have stated in town hall teleconferences that, on the one hand, they cannot guarantee that there will be no repercussions for Plaintiffs or Plaintiffs’ attorneys who fail to properly address a situation where a set-aside would “make sense” in a liability claim. On the other hand, they acknowledge that there is no formal system in place to detect such a situation. (03/16/2010, 12:00 p.m., Town Hall Teleconference,, NGHP Transcripts.) Tere is the distinct feeling of “proceed at your own risk.” Te odds of being caught in a situation where a set aside should have been created and was not in a liability settlement are slim, and perhaps even unlikely, given all of the above. But no one from Medicare will say it is impossible that a Plaintiff will find himself in such a scenario. It seems the safest thing for Plaintiff attorneys to do

is to proceed as we have in the past when it comes to set asides and liability claims. Medicare representatives continue to communicate

through town hall teleconferences and

alerts ( that nothing has changed other than the new reporting requirements. Our own evaluation of the statute shows us that there is nothing new that has been instituted that would indicate a change in Medicare’s policy for set asides in liability claims. Our past practices regarding set-asides and liability claims in the face of the existing, unchanged, statutory language, should provide us with some comfort in proceeding as we have in the past. An attorney who in the past has made the decision to be

cautious and have a settlement provide for a set aside where future damages are substantial in cost, definitive in nature, and easily identifiable, should continue to do so. Tis would be the course of action to be taken if one decided to heed the recommendation (but still not a requirement) as set forth by Wright during the March 16, 2010 CMS town hall teleconference. However, barring the scenario of substantial, definitive, easily identifiable, future damages, there is no statutory reason to even engage in a debate regarding set asides and liability claims. Surely if such a drastic change was made, it would be found in the statute, or mentioned by CMS in a formal oral or written format. Terefore, while the set- aside requirements for worker’s compensation claims remain, there is still no set-aside requirement for liability claims and the new notice requirement for defendants does nothing to change this.

Conclusion Tese new reporting rules change little insofar as they

reiterate the good practices in which plaintiff ’s counsel have

engaged. We have always represented Medicare beneficiaries, and we have been reporting claims and negotiating liens for years. Te fact that defendants are upset that they have to fill out paperwork and now share the same liability we have held for years, will in no way deter us from advocating on behalf of victims in need of representation. One attorney asserted in a recent article that these rules

may have a chilling effect on the willingness of the plaintiffs’ bar to represent Medicare recipients. Tat we will no longer take cases with high Medicare liens because the lien could wipe out the recovery. First, we know that Medicare would prefer to recover something, rather than nothing. In cases where the lien is high, we do our best to negotiate a reasonable settlement with Medicare to ensure that it receives compensation, without the denial of recovery for our clients. Second, if defendants and their attorneys are so concerned about our clients and their right to representation, then perhaps they should start considering making good faith offers of settlement that can accommodate large Medicare liens, as well as compensation for our clients. Cooperation and communication are keys in any

settlement process. We should provide the defendant with the information it needs to satisfy this new reporting requirement and we should do so early in the settlement negotiation process. However, we should not allow this new legislation to be twisted into a mechanism by which defendants can make unreasonable demands for the issuing, structuring, or rendering of settlement payments. After all, it is just a notice requirement. 

Biography Annie B. Hirsch, Te Law Offices of Annie B. Hirsch,

LLC, received her JD from Te University of Maryland School of Law. While there, she focused her studies and graduated with a certificate in healthcare law. Ms. Hirsch has spent her career on the Hill, and in the courtroom, acting as an advocate on behalf of injured victims and their families. She has had the honor of working for Senator Edward M. Kennedy on the Healthcare Equality and Accountability Act, as well as representing families on behalf of Te Coalition to End Childhood Lead Poisoning. Ms. Hirsch has extensive experience in the field of medical malpractice, product liability, nursing home, and personal injury litigation. In February, 2009, Ms. Hirsch opened Te Law Offices of Annie B. Hirsch, LLC, where she currently represents the severely injured and their families throughout the State of Maryland. Ms. Hirsch is a member of the American Healthcare Lawyers Association (AHLA), MAJ, and AAJ. She can be reached at Website:

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