Sixth Circuit MSP Case Remanded from US Court of Appeals to Address Standing

Conditional Payments, Medicare, MSP Litigation on August 20, 2018
Posted by Jean S. Goldstein, JD, CMSP

On August 16, 2018, the US Court of Appeals for the Sixth Circuit remanded a case involving the Medicare Secondary Payer Act (MSPA) back to the US District Court.  The case is Duncan v. Liberty Mut. Ins. Co., 2018 U.S. App. LEXIS 22811, and much like others before it, it is a case which involves a question as to whether a party can pursue double damages under the MSPA.

Facts of the Case

Liberty Mutual was David Duncan’s (Duncan) no-fault insurer, and Duncan was a Medicare beneficiary.  Duncan sustained serious injuries after an automobile accident.  Medicare subsequently made payment for Duncan’s medical expenses stemming from the accident; however, Duncan died one year after the accident.  Liberty Mutual did not pay the medical expenses, and Duncan’s estate pursued an action against Liberty Mutual.  A jury verdict determined that Liberty Mutual was responsible for the medical expenses. Thereafter, Liberty Mutual notified Medicare that it was the primary payer in relation to the accident.  Medicare responded and informed Liberty Mutual that claims had been identified in the amount of $174,815.20 in conditional payments; however, a final conditional payment amount had not been determined.

After receiving the jury verdict, the Estate amended its complaint to include a claim for double damages under the MSPA.  Liberty Mutual then removed the action to the United States District Court for the Eastern District of Michigan and moved for summary judgement on the issue of whether the Estate was entitled to pursue double damages under the MSPA.  The District Court granted Liberty Mutual’s motion, and the Estate appealed the matter to the US Court of Appeals.

Analysis by the Court

As with other Medicare Secondary Payer cases, the first hurdle for plaintiffs to overcome is the ability to demonstrate standing.[1]  After setting forth the standing requirements, the Court compared the instant matter to Gucwa v. Lawley, a case also recently decided in the Sixth Circuit, as well as Netro v. Greater Balt. Med. Ctr., Inc [2] a case recently brought by a personal representative in the Fourth Circuit.  In comparing the case to Gucwa, the court noted that, “[a] plaintiff does not satisfy the elements of standing simply by showing that the insurer failed to make payments ‘on [his] behalf’; the plaintiff must show that he ‘[him]self suffered an injury because a primary plan has failed’ to pay.” Gucwa, 731 F. App’x at 414.  Furthermore, the Court opined that the standing issue in the instant matter hinges on whether the Estate was injured by Liberty Mutual’s failure to make payment first which triggered Medicare’s conditional payments.  However, the Court further noted that such a determination “is a fact intensive question,” and one which the lower court failed to address. Id. at 6.  As a result, the Court remanded the matter to the district court to address the “factually intensive question” of standing.


This is yet another example of a private citizen using the private cause action provision of the MSPA to bring a suit for double damages.  Recall, as mentioned above, we recently saw the Fourth Circuit find that a personal representative of a deceased Medicare beneficiary had standing to sue under the MSPA.  In fact, we continue to see various parties bringing these types of actions, including estates, plaintiff-attorneys, providers, and Medicare Advantage Plans- to name just a few.  In nearly every case, we are observing each sitting Court’s interpretation of the statutory intent of the MSPA.  Moreover, with each passing case, we are witness to the broader interpretations and application of the MSPA.  For now, Duncan v. Liberty Mutual has been remanded back to the District Court to address the standing issue.  However, we will monitor the progress of this case, and will provide the Sixth Circuit’s latest interpretation of the MSPA as it relates to the instant matter, once available.


[1] As noted by the Court, the requirements to show standing are:  (1) plaintiff has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Duncan v. Liberty Mut. Ins. Co., No. 17-1402, 2018 U.S. App. LEXIS 22811, at 4-5.

[2] In Netro, the Court found that a personal representative had standing to bring a private cause of action under the MSP, due to a “derivative injury,” which allows a private individual to be assigned the government interests to pursue private cause of actions.