Tuesday, January 27, 2009

Malpractice Case, Medicare & Medicaid Liens

Posted by Matthew Garretson

Matt, I think you would be the one with an answer to a unique situation about which we have questions.

We are handling a legal malpractice case against a plaintiff’s lawyer for the handling of a nursing home neglect case. The deceased nursing home patient had Medicare and then Medicaid. We have realized that neither of those entities was properly notified during the course of the underlying nursing home abuse case. Now that we are handling a legal malpractice case, we are wondering if Medicare and Medicaid have rights to assert a lien in the present action.
Do you have any guidance to offer? I would greatly appreciate it.

-North Carolina Attorney

Based upon our research and handling of these cases in the past, our internal consensus is that if the malpractice is related to an underlying personal injury case, then Medicare would have the right to reimbursement. This is based upon the assumption that the complaint in the malpractice case articulates the personal injury damages (and assuming a release would as well). In our experience, the only time that Medicare would likely accept that it has no reimbursement claim in a malpractice case related to personal injury is if there is a court order on the merits of the case stating that the damages being paid are for elements other than medical expense. The same would hold true to Medicaid (i.e. a court order on the merits or perhaps even the parties’ mutual understanding based upon what has been pled and released). I hope this helps.