Another Michigan Spine Case

Medicare Set-Aside Blog, MSP Litigation, MSP News on October 16, 2017
Posted by Jennifer Jordan, JD, MSCC

Opinion out of the U.S. District Court for the Eastern District of Michigan reported on October 13, 2017 shows that the Michigan Spine and Brain Institute is at it again. You may recall that in 2013, there were a series of opinions stemming from a situation in which Michigan Spine was denied payment, billed Medicare instead for the conditional payment, then pursued a private cause of action for double damages under the Medicare Secondary Payer Act to recover twice the same payments it was responsible for seeking from Medicare. The current case demonstrates an even more aggressive pattern of behavior by the health care provider in that it didn’t even wait to involve Medicare this time before alleging its rights to double damages.

Sandra Foor was injured in an automobile accident on March 16, 2010, which she subsequently settled with her insurer on June 6, 2016. Interestingly she resumed treatment of her six year old injury at Coventry Medical Center just two weeks prior on May 24, 2016 so one has to wonder why the insurer would settle an unlimited Michigan no-fault coverage claim at that time. Ms. Foor proceeded to receive treatment from Coventry on 8/16, 8/24-27, 10/8-26, 11/3-8 and 11/22 and Michigan Spine on 11/22/17 and 2/6/17 resulting in charges of $39,560.95 and $2,455.00 respectively. Together the two providers filed suit on 2/21/17, just 15 days after the last service date and only three days after the bill was sent on 2/17/ 17.

While this case is currently being pursued primarily under a questionable assignment of breach of contract rights, ultimately there is a demand for double damages under the MSP so the case still serves as an example of how the MSP is being manipulated for personal gain. There has clearly been no Medicare payment involved here given that only 15 days passed between the last service and the complaint being filed. The MSP was created to prevent payments from being made by Medicare when another party is responsible or to obtain reimbursement for payments made conditionally, not serve as a weapon by providers to collect twice for payments not made by an insurer for a patient who just happens to be Medicare beneficiary even though Medicare was never even involved.

Given their previous case, it is apparent that Michigan Spine has identified a method to double revenues for patients who happen to be Medicare entitled. Their speed to file shows that they are aware of MSP case law that would provide for the double damages even if the bill is satisfied but not until after the filing date, case law where it was implied that Medicare seeking reimbursement prior to filing was not necessary either and case law where the mere existence of a no-fault policy is sufficient to demonstrate MSP responsibility. But where this case achieves the ridiculous is that the plaintiffs did not even wait for the insurer to receive the last bill nor bill Medicare for the conditional payment. The plaintiffs simply believe that because they provided treatment six years after an auto accident to the same body part that it would be covered regardless of any defenses because Michigan is an unlimited no-fault state and that just because the patient is a Medicare beneficiary, that double damages would automatically attach as well.

We will continue to follow this case simply to see what the court ultimately does with these claims. We have an ample body of bad case law stemming from the MSP private cause of actions and would hate to see more created here.


Covenant Med. Ctr. v. Auto-Owners Ins. Co.
United States District Court for the Eastern District of Michigan, Northern Division
October 13, 2017, Decided
Case No. 17-cv-11176
2017 U.S. Dist. LEXIS 169278