This page contains a Flash digital edition of a book.
Medical Malpractice Legal matters can be complex. So can managing a law firm.

We have a long and successful record as advisors to the law firm community, serving clients from start-ups, to large, regional firms. Find out how we can bring greater profitability to your firm.

attributable to past medical expenses incurred and paid by sources other than Medicaid was not actually presented or decided. As set forth in the opinion of the 8th Circuit, “ADHS provided Medicaid benefits to or on behalf of Ahlborn…which fully relieved her debt to health care providers.” 397 F.2d at 622 (8th Circuit 2005). In other words, Medicaid paid all of Ahlborn’s past medical expenses, and to the extent past medical expenses were recovered, that recovery was fully attributable to Medicaid’s payment of some. Whether that portion of a recovery intended to compensate for medical expenses incurred and paid by a source other than Medicaid, for example, by private health insurance, or by family members subject to a promise to repay, or by the recipient either prior to or after qualifying for Medicaid, was simply not dealt with in Ahlborn.



party, Medicaid be reimbursed fully from “any amount collected by the State under an assignment” before the remainder of such amount collected” is remitted to the recipient.§1396k(b). In ADHS’ view, this shows that the State must be paid in full from any settlement. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS’ conclusion rests on a false premise: Te “amount recovered . . . under an assignment” is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State’s assigned rights extend only to recovery of payments for medical care. Accordingly, what §1396k(b) requires is 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.

Id. at 281-282 (emphasis added.) Clearly, the U.S. Supreme Court only assumed for argument’s sake – but did not decide – that the provisions of §1396k(b) would apply in situations like that before the court in Ahlborn and Matey, i.e. where the State had not actively pursued recovery from the third party. Tird, the facts of Ahlborn were such that the question of the State’s ability to reach that part of a recipient’s recovery

38 Trial Reporter / Summer 2010

In dealing with Idaho’s claim against that portion of settlement funds representing the recipient’s recovery for future medical expenses, the Matey court held that although Idaho was barred from recovery of “future medical expenses it might pay on behalf of [Matey] under the Medicaid program,” it could nevertheless recover its past medical expense payments out of that portion of the award intended to compensate for future medical expenses. Te court stated: [T]he Department is not seeking to be paid for its future outlays but is asserting its past outlays should be reimbursed out of a Medicaid recipient’s award for future medical expenses, where the amount allocated to past medical expenses is not sufficient to satisfy the Department’s claim. Here,

again, the Department

appears to be correct. Under Ahlborn, a number of damage categories were put off limits to state Medicaid reimbursement claims on the grounds that they were the “property” of the Medicaid recipient and


shielded by 42 U.S.C. §1396p, the anti-lien provision of the federal Medicaid law. See Ahlborn, 547 U.S. at 283. Tus, a state may not seek reimbursement from damages awarded for lost earnings, lost household services, non- economic injury and the like because, according to the Supreme Court, those damage categories are property of the Medicaid recipient.However, the Supreme Court specifically

stated that damages received for medical

care did not constitute property subject to the anti-lien provisions. Id. at 284. Te court made no distinction between damages for past medical care and those for future medical care.Nothing in 42 U.S.C. §1396p indicates that the State may not seek recovery of its payments from a Medicaid recipient’s total award of damages for medical care whether for past, present, or future care. Tus, the Department is entitled to reimbursement for its past

Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68