Other Federal Courts Inspired by Zealous Judges in Louisiana?

Medicare Set-Aside Blog on September 6, 2012 | Posted by


If you’re tracking Medicare’s progress, it has now held off insolvency by another $4,500 thanks to a U.S. District Court in North Carolina. In opining upon plaintiff’s unopposed “Motion for Court Approval of Settlement and Determination of Need for and Amount of Medicare Set Aside,” the court based its conclusions that this MSA was in fact appropriate upon the following finds of fact: that Medicare doesn’t require, approve or provide policy for future medical issues in liability settlements, that plaintiff is a Medicare beneficiary with future anticipated Medicare covered treatment needs, that his $608.09 in conditional payments have been repaid, that plaintiff’s oncologist estimated the cost of his “medical surveillance” to precisely $4,330, that the $4,500 MSA is both reasonable and reliable and adequately protects Medicare’s interest, that the parties are not attempting to maximize other aspects of the settlement, and that CMS and the U.S. attorney were provided with notice of this motion.

Obviously the fear of possible (yet unlikely) future recovery actions by CMS is stronger than I give it credit for. I guess I just don’t understand why someone would fight the fight proactively rather than wait for the government to initiate an action after the money has in fact disappeared and related treatment was needed. Plaintiff’s related cancer (I’m guessing given the testimony of an oncologist as there was no mention of any of the case details in the opinion) can’t be that advanced or serious given his $608.09 debt and lifetime surveillance costs of only $4,330. Or perhaps it is and he will blow through that $4,500 in short order and the order capping Medicare’s exclusion will be imperative for access to much needed treatment? [but wouldn’t that be fraud and negate the order anyway?] Again, none of this necessarily means that this insurance policy had any obligation to provide for 100% of lifetime care, but this scenario screams of minimal liability or minimal medical damages and indicates that this MSA was a CYA maneuver to demonstrate that they did something rather than nothing since plaintiff is in fact a Medicare beneficiary. And that is fine and recommended, but why involve the courts? What was the cost of obtaining that order, both for the court and the parties?

Suggestion: Let’s reserve court actions for situations where the cost of obtaining the order exceeds the proposed MSA [even CMS has accepted and implemented similar limitations in its recovery efforts] and/or there is an actual issue in dispute that requires judicial intervention.

Cribb v. Settlement & Establishment of Medicare Set Aside Sulzer Metco US Inc.
United States District Court for the Eastern District of North Carolina, Eastern Division
2012 U.S. Dist. LEXIS 125729
September 5, 2012