Good versus Evil – The Eternal Struggle

Medicare Set-Aside Blog on March 22, 2010
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I spent my weekend speaking to a group of claimant lawyers who are forming a local association to battle the “dark side” or “the great conspiracy” as I heard the insurance industry referred to on more than one occasion. Despite the hyperbole, these men and woman are passionate advocates for their clients and are just the type of professionals I would want representing me if I were legitimately hurt in an accident. Anyone that shows up on a Saturday morning to learn more about MSAs is a cut above the normal crowd in my opinion.


I was invited to speak because these attorneys were concerned with how MSAs are affecting claims settlements and their client’s lives post settlement. Apparently, in this specific jurisdiction, the market is dominated by a few insurance companies that have vendors using some unscrupulous tactics when presenting and negotiating MSAs.


First a disclaimer….MEDVAL has no particular bias between the defense and claimant side of the business. The simple fact is that were MSP compliance is concerned, it is no longer plaintiff AGAINST defense. It is plaintiff AND defense working together to comply with the law.


Regardless of who hires our firm, the MSA should be the SAME number. We have no interest in short changing legitimately injured workers by employing arbitrary reductions in future medical treatment (via the now discredited donut hole and soon to be discredited Drug Utilization Review (DUR)). The treatment history and physician recommendations speak more about a claimant’s needs than some piece of fiction we develop to present “the lowest defensible allocation”. Our defense clients have the same philosophy.


From the claimant’s perspective, we will not arbitrarily inflate an MSA so the attorney can attempt to increase their demand. If a claimant’s attorney believes more money is needed to settle a case, then it is incumbent on them to make that demand to the defense and negotiate in the best interests of their clients. Extra money for non-Medicare covered items, attendant care, professional administration etc are all points of negotiation and do not belong in the MSA. Understanding this issue is central to effectively representing a client where a Medicare Set-Aside is involved.


MSP compliance is about following the law and making sound risk management decisions. It is not a weapon in either side’s arsenal to affect the overall VALUE of the case.


Protecting Medicare’s interests in a settlement is what it is and varies from case to case. So if you are a defendant looking to send a couple of test cases and choose a vendor by who has the lowest number or price per MSA, expect that the claimant attorneys in your jurisdiction will simply react by presenting life care plans and inflated reports of their own. And when that happens, the costs of settlements go up, the net benefit to the claimant goes down and Medicare is the only one that wins.