An article on Medicare Reimbursement Problems was recently published in For the Defense. One of the authors has a copy of the article posted on his firm website. The article details the issues, but unfortunately no easy solution is offered. The authors say that for now, the "only workable solution" is to put money in reserve for the estimated Medicare reimbursement.
In Chance v. WMATA, No. 240 (In the Court of Special Appeals of Maryland, April 4, 2007), the Court held that the 30 day period to file a petition for judicial review under LE Section 9-737 starts running from the date of the mailing of the Commission's order, and that the 30 day period is NOT extended by Md. Rule 1-203(c)(which provides for a three-day extension to a presribed period within which a party has a right to act when the period commences after service upon the party). Further, the opinion states that the 30 day period is in the nature of a statute of limitations and thus subject to waiver by failure of a party to raise it in the proper manner. Id., at n. 6. In short, in a Md WCC matter, the losing party gets 30 days to file the petition for judicial review, and no extra 3 days for mailing. And if the other side makes that mistake and you don't raise it properly, the defense is waived.
In this very confusing area, the best overview I have read so far is Dampf, Mediations & Settlements: Applicability of the Medicare Secondary Payer Act, Louisiana Bar J., Vol. 54, No. 3 (Nov. 2006). It is available online.
Click here for the current CMS guidelines on Workers Comp Medicare Set Aside Arrangements.
In Beyond Systems, Inc. v. Secure Medical, Inc., No. 2793, September Term, 2004, the Maryland Court of Special Appeals held that when the defense of personal jurisdiction has been waived due to failure to raise the defense by motion pursuant to Maryland Rule 2-322(a), the defense cannot be raised thereafter. Here, although the defendant railed to raise the defense by a preliminary motion, the defendant prevailed on the defense on motion for summary judgment. The Court held that the defense of lack of personal jurisdiction was waived, and no action by plaintiff was required to preserve the argument of waiver.
This lawsuit appears to have arisen because of spam which the defendant sent to the plaintiff. The defendant, while raising the lack of personal jurisdiction in its answer, did not raise the lack of personal jurisdiction in a preliminary motion. The trial court ultimately granted the defendant's motion for summary judgment on lack of personal jurisdiction.
The waiver argument was not raised for the first time until the case was on appeal. The Court ruled that the plaintiff/appellant did not forfeit its right to rely on that waiver by not raising the issue before the trial court.
Once the defense of lack of personal jurisdiction is waived by failure to file a motion to dismiss based on lack of personal jurisdiction, the defense cannot be resurrected.
In General Motors Corp. v. Seay, No. 66, Sept. Term 2004, the Court of Appeals of Maryland held that the terms of Maryland Rule 2-532(a) are mandatory and unambiguous. Under that rule, a party may move for judgment notwithstanding the verdict ONLY if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. Thus, verdicts totaling $500,000.00 were reinstated.
Failure to renew the motion for judgment at the close of all of the evidence nullifies a party's right to file a motion for JNOV following an adverse jury verdict.
The problem was that although during the trial, GM made a motion for judgment at the close of the plaintiff's case-in-chief, and again at the close of its own case, it did not renew the motion following the presentation of rebuttal testimony by the plaintiff.
The Court of Appeals noted that the federal circuits are split regarding whether a motion or renewal of a motion for judgment at the close of all the evidence is a mere technicality or a prerequisite to a post-trial motion for judgment.
The Court remanded the case to the trial court, for resolution of plaintiff's undecided claim for punitive damages. (However, one must wonder what chance the plaintiff has for punitive damages, where the trial court already granted a motion for JNOV.)
Once in awhile an insurance adjuster may ask counsel to file an answer for an insured who has supposedly been served (or who was served by substituted service on a State official), but it turns out that the insured cannot be located or contacted. When informed of this, the adjuster may ask counsel to file the answer anyway, to avoid a default -- and the case is one that should be and likely will be settled quickly anyway, the adjuster may add. What to do?
Although there are probably exceptions, the better approach is not to accept such an assignment.
Under Va. Code § 38.2-2226, in order to disclaim coverage based on an insured’s breach of a policy condition, an insurer has to give notice to the claimant or claimant’s counsel within 45 days after discovery by the insurer of the breach of the condition. Failure to give such notice within 45 days will result in a waiver of the defense. Virginia courts have been strict in applying such waiver. See, e.g., Aetna Casualty & Surety Co. v. Compass & Anchor Club, Inc., 33 Va. Cir. 235 (Feb. 24, 1994). In other words, under Va. Code § 38.2-2226, an insurer's policy defense based on breach of the cooperation clause can be waived by operation of law if there is failure to give notice to the insured within the statutory time frame. See Morrell v. Nationwide Mut. Fire Inc. Co., 188 F.3d 218 (4th Cir. 1999)
I just received a copy of "Traps for the Unwary", 5th Ed., published by the Massachusetts Bar Association (to which I belong), and edited by Kevin G. Kenneally and James E. Harvey, Jr. I've gotten several of the previous editions and have long admired this work.
The Introduction explains that it is a compilation of some laws that will help attorneys recognize and avoid traps that may be lying in wait for them, and focuses mainly on general civil practice.
This is an excellent idea, and should be emulated by every Bar association, because there are such pitfalls in every jurisdiction. I am starting a category for this blog called "Pitfalls for the Unwary" to collect such laws that I come across. I am going to call them pitfalls, as the term "traps" to me implies an intent to catch prey. Maybe if I can gather a sufficient number of local pitfalls, it will be a catalyst for a similar Bar publication in this area.
Some of the Traps identified in the Mass. Bar Assoc. book are not limited to Massachusetts. Here is an example:
B. Medicare liens. Under federal law, the Medicare program is subrogated to claimant's cause of action or rights to recover under workers' compensation, automobile or liability insurance or against self-insurers. 42 U.S.C. 1395y(b), et seq.
See Traps, at p. 51. This is also noted in a section on settlements:
There may be liens on the recover a plaintiff receives in a personal injury case, for example, workers' compensation . . ., Blue Cross, welfare department, hospitals . . . , and prior attorneys . . . . Medicare liens on personal injury settlement proceeds are created automatically by regulation and do not require notice to the recipient or to counsel. 42 U.S.C. sec. 1395y(b), et seq. It is advisable to inform clients of the amount of the liens before settlement, so the clients can calculate their net recovery in order to make an informed decision on accepting the settlement offer. An attorney who charges a fee for negotiating liens, over the agreed upon contingent fee, may be committing a violation of the Consumer Protection Act against the client. Doucette v. Kwiat, 392 Mass. 915, 917, 467 N.E.2d 1374 (1984).
Traps, at p. 68.
That's food enough for thought for now.
For more on medicare liens, click here.
