Medical Malpractice
under Ahlborn, it was entitled to assert its claim “against all medical expense categories in the damage allocation” including (1) those sums allocated to cover “past medical expenses paid by sources other than Medicaid” and (2) those sums allocated to cover “future medical expenses.” Id. at 393. In holding that Idaho could seek reimbursement out of
that portion of the settlement intended to compensate for past medical expenses paid by sources other than Medicaid, the Matey court relied upon an Idaho statutory provision which gives the State a “priority” right to “an amount received from a third party…which can reasonably be construed to compensate the recipient for the occurrence giving rise to the need for medical assistance…whether or not the recipient is made whole by the amount recovered.” I.C. §56-209(b)(5). Noting that federal law “requires” a state medical plan to contain such provisions, the court held:
Te Ahlborn decision did not affect a state’s ability to assert its priority to recovery of damages attributable to medical expenses. Indeed, the Supreme Court stated that 42 U.S.C. §1396k(b) requires “that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.” Ahlborn, 547 U.S. at 282. Tus, the
Department was clearly entitled, as it argued both below and before this Court, to assert its claim against the amount allocated to other past medical expenses paid.
Id. at 393. Tis aspect of the Matey decision is wrong for many
reasons. First, federal law simply does not “require” that a State medical assistance plan have a provision “like I.C. §56- 209(b)(5)” which purports to create a “priority right” in States to recover damages attributable to medical expenses “whether or not the recipient is made whole by the amount recovered.” In fact, it was just this kind of statutorily created “priority right” that the Supreme Court struck down in Ahlborn as inconsistent with federal law.7 Second, the Supreme Court did not state “that 42
U.S.C. §1396k(b) requires ‘that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.’” Ahlborn’s actual discussion of 42 U.S.C. §1396k(b) is as follows:
Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third
7 Arkansas, through its statute, claimed a “priority lien” on a recipient’s recovery entitling the State to full reimbursement of its entire claim out of the proceeds of any recovery, regardless of how much of the recovery was attributable to past medical expenses paid by the State. 547 U.S. at 278-9.
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Arthur E. Kurlanzik, M.D. ♦ Neurological Services Trial Reporter / Summer 2010 37
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