CT Court Steps Around Medicare Secondary Payer Guidelines

My reading of this case and the comments is that the Connecticut court has averted compliance with the spirit AND the letter of the Medicare Secondary Payer guidelines...and has placed the attorneys (both sides), the payer and (most importantly) the injured party at a direct risk of a) an action by Medicare for recovery of any/all funds paid for medical care of the injured party and b) a Medicare action against the injured person denying benefits for treatment in some way related to the paralysis resulting from the fall.  Uncharted territory to be sure.

The Official Medicare Set Aside Blog And Information Resource published a new post entitled "Connecticut Courts Willing to Make MSA Determinations Too" on 3/7/2013 3:19:21 PM, written by Medicare Set Aside Services.

Connecticut Courts Willing to Make MSA Determinations Too

As the court opinions involving MSA issues continue to roll in throughout the nation, we add the State of Connecticut's opinion to the mix. In recent weeks we have had a Florida court say that it would not add terms to a settlement agreement nor issue an advisory opinion as to whether an MSA was appropriate or not, and a Mississippi court not only feel that it had a duty to resolve the MSA issue but the judge went so far as to disagree with the MSA expert's testimony and increase her MSA, that she swore under penalty of perjury would have been approved by CMS had it been reviewable, by over $100,000. This week we have a Connecticut court telling us that it agrees with the parties in that an MSA is not needed in a $550,000 settlement because none of the $550,000 represents compensation for future medical costs. Let's see what you think.

So Plaintiff, a "social invitee" at defendant's home, fell backwards while ascending some stairs and is now a paraplegic. Plaintiff alleges Defendant was negligent because the stairway did not have a handrail. Defendant argued contributory negligence since plaintiff was drunk. The parties settled for $550,000 at mediation, agreeing that the payment to plaintiff does not address any future medical expenses that may be covered by Medicare and that the defendants lack liability for any such expenses. Given the special defenses and the substantial verdict possibilities, this court agreed that this settlement was severely compromised and does not reflect compensation for future medical costs. There is however sufficient compensation for lots of other damages, specifically $183,333.33 for loss of consortium compensation for Mrs. Sterrett as well as costs associated with future home health services not covered by Medicare (and likely also provided by Mrs. Sterrett). It even includes $14,448.30 in Medicare conditional payment reimbursement. Just nothing for future Medicare covere! d medical expenses. 

Rather than mount my soapbox and express my disgust as a tax payer, I instead am going to contemplate what's going on over at CMS in reaction to this decision. We have a federal court completely complicit in allowing Medicare to absorb the entire burden of this paraplegic's future medical care because rather than prorate the settlement equally over all claims for damages, it permitted the parties to prioritize some claims to completely deplete the payment before Medicare's interests were even a factor (they did in fact consider them, but just not before they considered their own). Note that $183,333.33 is exactly a third of $550,000 so I suspect I know where an identical amount went. I sincerely hope that Medicare appropriately denies related care so that these parties are forced to bring a 10th Amendment argument back to court to finally determine if it is just this easy to force the taxpayers to absorb the entire burden of litigation expenses. Will a state court issued order trump a federal statute expressly prohibiting Medicare from making payment? While this settlement would never completely cover plaintiff's future care and forever exclude Medicare benefits, it should have at least deferred some of the cost of the future care, particularly since it provided compensation specifically for the future non-Medicare covered care. I'm going to have to set a Lexis search specifically on plaintiff's name because I suspect this isn't the last we are going to see of him.

Clifford Sterrett et al. v. Thomas T. Klebart et al.



2013 Conn. Super. LEXIS 245

February 5, 2013, Filed


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