Update on MSAs & Prescription in Louisiana

Commentary, Liability, Medicare Set-Aside Blog, MSP Litigation on April 17, 2013 | Posted by Jennifer Jordan, JD, MSCC

For those of you in states that allow prescription, the 2008 decision in Reed v. Mid-States Wood Preservers, Inc. was a wake up call to understand that MSAs may have other unanticipated and unintentional affects on claims and settlement negotiations. In that case, the act of having multiple MSAs prepared and disclosed to the claimant was sufficient acknowledgement by the carrier that claimant had ongoing medical issues that prevented his claim from prescribing. Last week, the Court of Appeal of Louisiana finally published a decision from January that essentially narrows that allowance and made the disclosure to the claimant the key. Carriers may obtain MSA evaluations in anticipation of litigation, mediation, whatever, but so long as it is not disclosed to claimant and the defendant consistently denies liability throughout negotiations, mediation, etc., then an MSA does not constitute an acknowledgement sufficient to interrupt prescription.

The moral to this story is be careful what you ask for and from whom. Many times I see MSAs that were prepared with a lifetime of medical care that was not warranted by the claim. Either insufficient information about the denial were presented to the MSA evaluator or the person doing the evaluation is unexperienced or only really knows how to prepare a WCMSA certain to pass CMS inspection. Being a Medicare beneficiary does not suddenly confer coverage where none existed; therefore, if you get an MSA in a denied claim, it may be contradictory to your legal position. This does not mean that you won’t negotiate to provide for future medicals as a term of settlement, but obtaining an MSA as they did in Reed infers that even you don’t believe in your denial. The timing of when to get an MSA will become more of an issue as LMSAs evolve because as soon as that MSA evaluation hits your file, you can’t un-ring that bell. More thought during the claims and litigation process is needed regarding the part MSAs play in the big picture or parties will be doomed to work around unanticipated MSA problems for years to come.

 

ESTATE OF BRANCH EHRHARDT VERSUS JEFFERSON PARISH FIRE DEPARTMENT, CITY OF NEW ORLEANS FIRE DEPARTMENT, WILLIAM HAWKINS
NO. 12-CA-319 C/W 12-CA-452
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
12-319 (La.App. 5 Cir. 01/30/13); 2013 La. App. LEXIS 143
January 30, 2013, Decided