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Medical Malpractice

behalf of Medicaid beneficiaries going forward? How can we protect ourselves and our clients against liability to the Department? How can we assure that we are only paying over to the Department that which is legitimately owed? Here are several suggestions:

1. When drafting confidentiality provisions in a settlement agreement, carve out an exception for disclosures necessary to negotiate and/or litigate disputes with Medicaid over subrogation interests.

2. Put Medicaid on notice of its potential interest early and keep Medicaid posted as to the status of the underlying litigation - this enhances the likelihood of success on a Tristani argument. It also puts the recipient in a favorable light and the Department in an unfavorable light in connection with any later litigation.

3. Invite the Department to appear and participate in any mediation. Again, the Department probably will not post, but it provides yet additional evidence of the Department's failure to protect its own interests.

4. When negotiating a settlement of the underlying case, consider specifying in the settlement agreement how much of the recovery is intended to compensate for the claim for past medical expenses paid by the Department. Such an agreement is probably not binding upon the Department, but it is likely to be helpful in future negotiations.

5. If you decide to specify the amount of the recovery allocated to the claim for past medical expenses paid by the Department, make certain that your allocation is a fair and reasonable one. You want to avoid an argument that you "played with the numbers" and allocated an unreasonably small percentage of the recovery to the “assigned claim” for past medical expenses paid by the Program.

6. Consider a request to the trial court in the underlying case that it hold ahearing and that it approve not only the settlement amount, but also the allocation of settlement proceeds to the claim for past medical expenses paid by the Department. Te Department should be invited to appear and participate in the proceedings so as to make the finding of the court binding upon it.

7. Do not voluntarily pay over to the Department – particularly in any sizeable settlement – the full amount of the Department’s claim for past medical expenses paid by the Program. At a minimum, the Department should be accepting an Ahlborn reduction.

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8. If you cannot persuade the Department to accept a significant reduction of its subrogation interest, notify the Department that you will be establishing a separate interest bearing escrow account in which to hold the full amount of the claimed interest, and either sue the Department, or alternatively await the outcome of suits that have been, and inevitably will be, pursued by others.

While adherence to these suggestions cannot necessarily

guarantee successful negotiation of Medicaid liens with the Department, they can guarantee that you and your clients do not “overpay” the Department. And perhaps as time passes, the Department will return to its old more enlightened approach to handling Medicaid subrogation interests, an approach that recognized that there is far greater value in working together with Recipients and their counsel as friends, than in working against them as foes. One can hope! 

Biography Kathleen Howard Meredith graduated summa cum laude

(first in her class) from the University of Baltimore School of Law in 1978. She has tried cases across the state of Maryland and in the District of Columbia. Te bulk of her practice involves professional liability issues. She prosecutes medical negligence claims and defends legal malpractice claims. A member of both the Maryland and District of Columbia Bars, Meredith is a principal in the law firm of Iliff, Meredith, Wildberger & Brennan, P.C. She previously was a partner at Semmes, Bowen & Semmes and also served for two years as an Assistant Attorney General for the State of Maryland. Meredith has written and lectured extensively on trial issues and tactics and on the need for and value of risk management for lawyers. She is a member of the Maryland State Bar Association, and a Fellow of the American College of Trial Lawyers. Meredith has been named one of Maryland’s Top Ten “Super Lawyers” by Maryland Super Lawyers Magazine for each of the past three years.

Trial Reporter / Summer 2010 41

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