Medicare Lien Issue

Question: Matt- Just saw your very helpful posting on Medicare lien issues that seem to abound. Can you give me your opinion on whether Medicare will voluntarily reduce its lien if the parties agree that a portion of the medical bills are not related to the actual malpractice?

We have a case involving a perforated esophagus that would have required hospitalization and potentially one month worth of medical bills if the perforation was diagnosed timely.

The patient was diagnosed late and therefore became septic, suffered complications, an extended hospital stay of 4 four months and finally deceased. There's about $1 million in hospital bills.

How is it possible to get Medicare to recognize that a portion of the bills is not related to the negligence or that some portion of its lien should not be part of the case?

Thanks for your help.

New Hampshire Attorney

Answer: As a starting, Medicare may claim a right of recovery based upon what was pled and what was released. Once you get the conditional payment, you would pull dates and diagnosis that fall outside of those "moving papers". I would make it easy on them - give them specific dates and ICD-9 codes that are related to the underlying/preexisting injury and should be removed as well as specific dates and ICD's related to complications and extended stay. If the Medicare contractor fails to get their head around the logic, you might have more success kicking it off the front-line case workers desk and on the desk of a waiver/compromise specialist. Then, pursue waiver based upon fair and equitable or out of pocket expenses (certainly you have a compelling story for either/both arguments).

Also, since the client died, keep in mind that Medicare's pot to target is limited by any allocation between the wrongful death and survivorship components... Medicare Secondary Payor rules (42 USC § 1395y(b)(2), 42 CFR §§ 411.24, 28) limit recovery to medical expenses incurred by the decedent. Medicare recovery does not extend to state-created rights for the decedent's family to recover for his or her wrongful death, unless your state statutes provide that medical expenses are recoverable by the beneficiaries as part of their claims under the state's wrongful death statute.

Hope this info helps.