cmonfils | July 15, 2011
“Not good for subrogation. Most plaintiff’s attorneys will seek, as damages, the “charged” amount, but reimburse the plan only the “paid” amount… with the difference going to the plaintiff and their attorney. Now, if 100% of medical damages the plaintiff claims are included on our lien, they are going to fight more now than ever to pay a percentage of the lien instead of 100%.” – Ron E. Peck, Esq.
www.lexology.com Karin B. Torgerson, Locke Lord Bissell & Lidell LLP July 6, 2011
In a significant win for defendants in cases involving insured medical expenses, the Texas Supreme Court has decided that medical expenses not required to be paid by or on behalf of the claimant are neither recoverable nor admissible at trial. Haygood v. Escobedo, ____ S.W.3d _____, Cause No. 09-0377 (Tex. June 30, 2011). (more…)
Category: Subrogation, Texas |
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cmonfils | July 11, 2011
The Subrogator Spring/Summer 2011
Amidst the deluge of healthcare reform, anti-subrogation legislation was passed in the State of New York on November 12, 2009, which purported to eliminate the right of fully insured carriers and self-funded benefit plans, coming within the purview of state law, to pursue subrogation and reimbursement. Accordingly, benefit plans in New York which are not private, self-funded plans, no longer have an enforceable right to subrogation and/or reimbursement. The Phia Group has never accepted anti-subrogation legislation without a fight. When the Phia Group received word of the statutory shift, its attorneys immediately began to seek out ways to enforce plan rights. (more…)
Category: Collateral Source Rule, New York, Subrogation |
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cmonfils | July 4, 2011
www.healthsubrogationblog.com Posted on June 29, 2011 by Tom Lawrence
In the third post in this series, I explained why the most effective healthcare subrogation companies are those with experience and a proven track record. In this post, I will explain why it is so important for a healthcare subrogation vendor to understand healthcare subrogation from a legal perspective. (more…)
Category: Legal, Subrogation |
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cmonfils | July 4, 2011
www.healthsubrogationblog.com Posted on June 18, 2011 by Tom Lawrence
Today’s post is a break from the series I started a few weeks ago. I heard a story about a pending lawsuit and couldn’t let it pass without posting some comments. I’m not going to reveal the names of the lawyers or the parties in order to protect the innocent and the non-so-innocent! (more…)
Category: Subrogation |
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cmonfils | May 3, 2011
Coordination of Benefits April 2011 | Vol. 19, No. 2
If a person suffering from a chronic medical condition gets in an auto accident that exacerbates the condition, the evidence may not clearly indicate that the medical expenses paid for by the plan were caused by the accident. Between 1999 and 2004, a participant had back problems and had spinal fusion performed at the plan’s expense. In 2004, she was involved in a car accident, which was the other driver’s fault. Two years after the accident, her pain steadily increased and she had a spinal cord stimulator implanted, costing the plan $62,000. Very soon thereafter, she sued the driver who hit her in 2004 and settlement discussions ensued. The plan and its insurer sought recovery of benefits paid for the spinal cord stimulator. The court ruled against the plan, holding that a preponderance of evidence showed no relation between the 2004 accident and the need for the implant. (more…)
Category: Subrogation |
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cmonfils | May 3, 2011
Coordination of Benefits April 2011 | Vol. 19, No. 2
It would be very difficult to prevail in a lawsuit against an ERISA health plan or its claim administrator that would undermine a plan’s efforts to enforce its subrogation rights. Most self-insured ERISA plans have well-drafted provisions that make it almost impossible for such a lawsuit to prevail. But if the plan participant’s attorney could put together a class action against the plan, it could provide an opportunity for a favorable settlement. That’s because the prospect of defending a class action could put considerable pressure on a plan or its claim administrator to settle the plan participant’s claim. Such litigation would be very costly for the plan to defend. And if there is any possibility that the plan language has a weak spot, there could be rather significant liability to a large number of claimants. (more…)
Category: ERISA, Subrogation |
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cmonfils | May 3, 2011
Coordination of Benefits April 2011 | Vol. 19, No. 2
Three major rules limit group health plans’ right to seek reimbursement of health benefits they paid from tort settlement proceeds. They are: (1) the make-whole rule, which precludes the plan’s right to reimbursement if the plan participant is not “made whole” by the tort settlement; (2) the common fund rule, which requires the plan to bear a pro rata share of attorney’s fees and court costs while partaking of the “common fund” created by the settlement; and (3) the collateral source rule, which allocates the tortfeasor’s liability for damages to either the plan participant or the plan, but not to both of them. Contributing Editor Jack Helitzer reports on cases dealing with each of these rules. Ill-conceived plan documents in one case and a court that failed to observe Supreme Court precedent in another hurt plans. Only one of the three (enabling a plan to intervene and introduce health care data in a tort case) had a favorable result for the plan. (more…)
Category: Collateral Source Rule, Common Fund, Made Whole Rule, Subrogation |
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cmonfils | April 26, 2011
www.subrogation.org
NORTH CAROLINA TORT REFORM
Several bills have been introduced in North Carolina with the hope of reforming the tort system. We will only highlight briefly some of the finer points relating to subrogation: (more…)
Category: North Carolina, Subrogation |
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cmonfils | April 26, 2011
www.subrogation.org
New York Senate Bill 4576
The New York anti-subrogation law is back! The latest bill seeks to clarify and expand limits on subrogation. As you may remember, in 2009 the State of New York passed a law that eliminated subrogation and reimbursements rights for health and disability plans in personal injury and wrongful death actions based upon settlement of a claim. (more…)
Category: New York, Subrogation |
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cmonfils | April 19, 2011
In Quintana v. Lightner, the Plan participant is suing State Farm and Ingenix for violations of his right to privacy, conspiracy to invade privacy, HIPAA violations, and intentional infliction of emotional distress. Ingenix provided State Farm with an itemization of Quintana’s medical bills, which included the dates of service, provider, diagnosis code, etc. Quintana asserts, among other things, that in providing State Farm with the itemization, Ingenix might adversely affect the outcome of his suit against state Farm’s insured. (more…)
Category: HIPAA, Subrogation, Texas |
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cmonfils | April 12, 2011
www.subrogation.org
Texas recently introduced a bill allowing recovery of attorney’s fees by a prevailing party when a trier of fact determines there has been an “abusive civil action”. An attorney may be held jointly and severally liable for litigation costs awarded, if they have a financial interest in the action. Financial Interest is defined as an attorney’s compensation for services being contingent in whole or in part on the outcome of the action. This bill would only apply when the amount in controversy is or exceeds $100,000.00. Worker’s compensation claims are excluded from the bill.
Thanks to William T. Sebesta, an attorney with Doyen Sebesta in Houston, Texas, for identifying this bill.
Category: Attorneys' Fees, Common Fund, Subrogation, Texas |
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cmonfils | April 12, 2011
www.subrogation.org
California Senate Bill 863, which was introduced February 18, 2011, would change the way health plans, disability plans and health care providers pursue recoveries in workers’ compensation cases appealed to the California Workers’ Compensation Appeals Board (WCAB). The proposed modifications which would affect NASP membership are: (more…)
Category: California, Subrogation, Workers' Compensation |
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cmonfils | April 12, 2011
www.subrogation.org
The Arkansas Worker’s Compensation Law was enacted in 1948 and Arkansas Senate Bill 778 seeks to return the worker’s compensation system to the legislature’s original intent and design. The statutory intent of the law has been eroded by the commission and the courts. (more…)
Category: Arkansas, Made Whole Rule, Subrogation |
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cmonfils | February 2, 2011
www.healthplanlaw.com
January 20, 2011 •
Johnson Controls v. Flaherty, 2011 U.S. App. LEXIS 969 (11th Cir.) (January 18, 2011) (unpublished) presents a typical subrogation scenario. The plan brought suit under 29 U.S.C. § 1132(a)(3), for medical benefits that the employee benefits plan, Johnson Controls, Inc. Welfare Plan (”the Plan”), had paid resulting from a bicycle injury. The Defendant had successfully settled a personal injury case and recovered proceeds for the injury from a third party. (more…)
Category: Attorneys' Fees, Common Fund, ERISA, Subrogation |
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cmonfils | January 12, 2011
www.healthsubrogationblog.com
Posted on January 6, 2011 by Tom Lawrence
After Sereboff, many of us who practice regularly in this area believed that the “races to the courthouse” to obtain TROs and injunctions post-Knudson were over and that life would return to the “good ole days” of arguing with personal injury attorneys about whether our plan language was sufficient to override the federal common law make-whole rule and/or common fund doctrine in that particular circuit. On December 29, 2010, the Ninth Circuit brought us back to reality. (more…)
Category: 9th, Subrogation |
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