Hadden Cert Petition to be Decided on September 24, 2012

Medicare Set-Aside Blog on August 8, 2012
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Today the Hadden case was distributed to the Supreme Court Justices and scheduled for conference on September 24, 2012. For the next month, clerks will be writing briefs outlining the issues and making recommendations as to whether cert should be granted. During the conference, the Justices will discuss the petitions and a vote of 4 will determine whether the case will be heard or not. Less than 5% of cases filed are ultimately selected.

As we’ve previously discussed, this case has a good chance of being selected. There are 3 primary types of cases that warrant certiorari and this one has all the right elements. The MSP is a federal question, we have conflict among the circuits and there is an enormous public policy issue at stake. The MSP issue, inclusive of both past and future benefits, is deterring settlements. These issues will drive more cases to trial as evidenced in published court opinions during the past two years. Some cases are going to trial on “Medicare damages” alone. In some recently posted public comments to the proposed rules for Medicare and Future Medicals, people have actually suggested that LMSA determinations should be sought through the federal court system. Our courts, both state and federal, cannot absorb the burden of making these determinations on behalf of Medicare any more than CMS can, therefore it is imperative that the Supreme Court provide the needed guidance regarding equitable apportionment so that all Medicare issues, both past and present, can be resolved with some clarity and certainty without the need for judicial or agency intervention.