personal injury settlement obstacles: medical liens, child...

Personal Injury Settlement Obstacles:

Medical Liens, Child Support,

CMS Reporting and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

TUESDAY, JANUARY 15, 2019

Presenting a live 90-minute webinar with interactive Q&A

W. Bruce Barrickman, Partner, Barrickman Allred & Young, Atlanta

Katherine A. Cárdenas, Partner, Lucas & Cárdenas, Chicago

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-869-6667 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can address

the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 2.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Personal Injury Settlement Obstacles

W. Bruce Barrickman

Barrickman Allred & Young

[email protected]

5

MEDICARE - MANDATORY INSURER REPORTING

• IS PLAINTIFF RECEIVING MEDICARE BENEFITS

• IS PLAINTIFF MEDICARE ELIGIBLE

• IS PLAINTIFF 65 YEARS OR OLDER

• IS PLAINTIFF REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 3O

MONTHS

• IS PLAINTIFF 62 ½ OR OLDER

• HAS PLAINTIFF BEEN RECEIVING SSDI BENEFITS FOR 24 MONTHS OR LONGER

• IS PLAINTIFF ON SSDI BUT NOT MEDICARE ELIGIBLE

• HAS PLAINTIFF APPLIED FOR SSDI BENEFITS, BEEN DENIED OR IS APPEALING

• IS SETTLEMENT OVER $25,000 AND PLAINTIFF IS MEDICARE ELIGIBLE

• IS SETTLEMENT OVER $250,000 AND PLAINTIFF REASONABLY EXPECTED TO BECOME MEDICARE ELIGIBLE WITHIN 30 MONTHS

• IS PLAINTIFF SUFFERING FROM END-STAGE RENAL DISEASE

6

MEDICARE RELATED DOCUMENTS

MEDICARE INFORMATION FORM

MEDICARE RELEASE LANGUAGE – MEDICARE RECIPIENT

MEDICARE RELEASE LANGUAGE – NON-RECIPIENT

7

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

8

GOULD & LAMB – LIABILITY SETTLEMENT ALLOCATION PLANS

9

OVER THE YEARS HAVE YOU FOUND THE MEDICARE LIEN PROCESS TO BE MORE EFFICIENT?

10

11

The MSPRP provides you with the following features and related benefits:

1. Submit Beneficiary Proof of Representation, Beneficiary Consent to Release or Insurer Letter of Authority documentation

2. Request conditional payment information:

Obtain the current conditional payment amount

Request a printed or electronic copy of the current conditional payment letter

Request a final conditional payment amount for a case that is approaching settlement

3. Dispute claims included in the conditional payment amount:

View claim details for the claims associated to the case

Dispute unrelated claims and upload documentation to support the claim dispute

12

4. Initiate the demand letter:If you agree with the Conditional Payment Notice amount, you may initiate a demand letter earlier than the default 30-day time period.

5. View the status of correspondence that has been sent and received for a case

6. Submit case settlement information:Input settlement information and upload a copy of the settlement documentation

7. Submit waiver, compromise and redetermination requests:View details of the request: received date, decision and decision date

8. Multi-Factor Authorization (MFA) and Identity Proofing:Request access to view unmasked claims data. Individuals requesting this access must complete the ID Proofing and MFA process.

MEDICAL LIENS - §§ 44-14-470-476

• HOSPITALS; NURSING HOMES; PHYSICIANS; TRAUMATIC BURN CARE FACILITITY (>$50,000)

• LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER

• NOT LESS THAN 15 DAYS BEFORE FILING LIEN PROVIDE WRITTEN NOTICE TO PATIENT, THIRD PARTY TORTFEASOR AND THEIR INSURERS – FIRST-CLASS AND CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED

• FILE LIEN NOTICE IN COUNTY WHERE SERVICES PROVIDED AND IN COUNTY WHERE PATIENT RESIDES

• LIEN NOTICE FILED WITHIN 75 DAYS OF DISCHARGE FROM HOSPITAL, NURSING HOME OR TRAUMATIC BURN FACILITY

• LIEN NOTICE FILED WITHIN 90 DAYS OF FIRST TREATMENT BY PHYSICIAN

• IMPROPER PERFECTION OF LIEN INVALIDATES LIEN EXCEPT TO THOSE WHO RECEIVE ACTUAL NOTICE OF LIEN BY RELIABLE FORMS OF DELIVERY BEFORE SETTLEMENT

• CAN ENFORCE LIEN AGAINST TORTFEASOR OR INSURER WITH ACTUAL OR CONSTRUCTIVE KNOWLEDGE

• MUST BRING ACTION WITHIN ONE YEAR OF FINAL DETERMINATION OF LIABILITY

13

RIGHT OF REIMBURSEMENT – O.C.G.A. § 33-24-56.1

• MAY RECOVER FROM INJURED PARTY IF THE AMOUNT OF THE RECOVERY EXCEEDS

THE SUM OF ALL ECONOMIC AND NONECONOMIC LOSSES INCURRED AS A RESULT OF

THE INJURY, EXCLUSIVE OF LOSSES FOR WHICH REIMBURSEMENT MAY BE SOUGHT

UNDER THIS CODE SECTION

• A DECLARATORY JUDGMENT ACTION CAN BE FILED FOR COURT TO DETERMINE

WHETHER FULLY COMPENSATED

• INJURED PARTY MUST PROVIDE NOTICE BY RELIABLE METHODS TO BENEFITS

PROVIDER NO LESS THAN 10 DAYS BEFORE CONSUMMATION OF SETTLEMENT OR

TRIAL

• IF PROVIDE NOTICE, BENEFITS PROVIDER CAN ONLY ASSERT REIMBURSEMENT RIGHTS

IF HAD PROVIDED NOTICE BY RELIABLE METHODS TO INJURED PARTY OF ITS CLAIM

FOR REIMBURSEMENT

• IF NOTICE NOT PROVIDED BY INJURED PARTY, BENEFITS PROVIDER NOT SUBJECT TO

PRIOR NOTICE REQUIREMENT

14

HOW DO YOU HANDLE MEDICAL LIENS AND INSURANCE RIGHTS OF REIMBURSEMENT

15

MEDICAID LIENS - O.C.G.A. § 49-4-149

• DEPARTMENT OF COMMUNITY HEALTH - LIEN FOR PAYMENT OF MEDICAL CARE AND TREATMENT PROVIDED TO MEDICAID RECIPIENT

• LIEN ON PROCEEDS OF SETTLEMENT OR VERDICT RECEIVED FROM THIRD PARTY TORTFEASOR OR INSURER

• PERFECT LIEN BY COMPLYING WITH O.C.G.A §§ 44-14-470 THROUGH 44-14-473

• FILE WITHIN ONE YEAR FROM LAST DATE OF TREATMENT

• FILE IN COUNTY WHERE RECIPIENT RESIDES AND IN FULTON COUNTY

• SHALL NOT AFFECT PRIORITY OF ATTORNEY’S LIENS

• SUBROGATED TO REASONABLE VALUE OF MEDICAL ASSISTANCE PROVIDED AFTER WRITTEN NOTICE OF LIEN

• SUBROGATION RIGHT ATTACHES WHEN SERVICES PROVIDED

• SUBROGATION ACTION MUST BE BROUGHT WITHIN ONE YEAR OF LIABILITY BEING FINALLY DETERMINED

16

WHAT DO YOU DO BEFORE A MEDIATION TO MAKE SURE THE DEFENSE

DOES NOT HAVE AN EXCUSE TO NOT NEGOTIATE IN GOOD FAITH?

17

18

1. MAKE SURE EVERYONE HAS ALL OF THE MEDICAL RECORDS;

2. MAKE SURE EVERYONE AGREES ON AMOUNT OF MEDICAL

EXPENSES AND LOST WAGES THAT ARE BEING CLAIMED;

3. IF GOING TO INCREASE DEMAND, MAKE SURE TO LET

OPPOSING COUNSEL AND MEDIATOR KNOW;

4. MAKE SURE PARTIES ARE IN AGREEMENT REGARDING

PREVIOUS SETTLEMENT NEGOTIATIONS; AND

5. MAKE SURE MEDIATOR IS AWARE OF ANY CLIENT CONTROL

OR OTHER UNUSUAL ISSUES.

ASSIGNMENTS – SANTIAGO V. SAFEWAY196 Ga. App. 480; 396 S.E.2d 506

“ A debtor of the assignor, who has notice of theassignment, pays the debt to the assignor … at his ownperil. ‘It is the established rule in the United States thatan assignment for a valuable consideration, with notice tothe debtor, imposes on him an equitable and moralobligation to pay the assignee.’ Here, Safeway had noticeof the assignment but nevertheless paid all benefits to theinsured rather than the assignee, Dr. Santiago. Thus,Safeway is liable to the assignee and Dr. Santiago isentitled to partial summary judgment.

19

CHILD SUPPORT LIEN – O.C.G.A. § 19-11-18

• CHILD SUPPORT RECOVERY ACT – IV-D AGENCY

• LIEN FOR UNPAID CHILD SUPPORT

• APPLIES TO PAST DUE CHILD SUPPORT AND ACCRUING CHILD SUPPORT

• UPON PROPER RECORDATION OR REGISTRATION, LIEN SHALL ENCUMBER ALL TANGIBLE AND INTANGIBLE PROPERTY, WHETHER REAL OR PERSONAL, AND ANY INTEREST IN PROPERTY, WHETHER LEGAL OR EQUITABLE, BELONGING TO THE OBLIGOR.

• LIEN APPLIES TO ANY PROPERTY INTEREST ACQUIRED BY OBLIGOR AFTER THE CHILD SUPPORT LIEN ARISES.

• NOTICE OF LIEN PROVIDED TO OBLIGOR BY FIRST CLASS MAIL, AT LEAST ONCE A YEAR.

• IF PROPER NOTICE HAS BEEN PROVIDED TO OBLIGOR AND CHILD SUPPORT REMAINS UNPAID, DEMAND CAN BE MADE UPON ANY PERSON OR ENTITY IN POSSESSION OF PROPERTY SUBJECT TO THE LIEN TO TURN OVER POSSESSION OF THE PROPERTY TO THE IV-D AGENCY.

• IF PROPERTY NOT TURNED OVER TO IV-D AGENCY, SUBJECT TO PAYING THE AMOUNT OF PROPERTY HELD, TO EXTENT OF UNPAID CHILD SUPPORT, PLUS COSTS AND INTEREST.

20

WHAT DO YOU TO DO TO TRY TO ASSURE THAT TRUE DECISION MAKER FOR DEFENSE OR PERSON WITH INFLUENCE OVER

YOUR CLIENT ARE PRESENT AT THE MEDIATION

21

LAWSUIT LOANS

22

24

AS PLAINTIFF’S ATTORNEY, DO YOU WANT DEFENSE COUNSEL TO PRESENT HIS OR HER CASE IN OPENING SESSION?

WHAT DO YOU DO?

• PLAINTIFF REPORTS SIGNIFICANTLY MORE SPECIALS AT START OF MEDIATION

• PARTY HAS NOT PROVIDED IMPORTANT INFORMATION OR IS NOT WILLING TO REVEAL IT

• ONE OR BOTH OF THE PARTIES THREATEN TO LEAVE EARLY IN THE MEDIATION

• ONE OF THE PARTIES IS MAKING UNREASONABLE MOVES WHICH POTENTIALLY COULD END THE MEDIATION

• CLAIM BY INSURED AGAINST THEIR UNINSURED MOTORIST CARRIER

• PLAINTIFF STARTS AT HIGHER NUMBER OR DEFENDANT STARTS AT LOWER NUMBER THAN PRE-MEDIATION

• DEFENDANTS HAVE UNDER-VALUED CASE

• FIND OUT THAT TRUE DECISION MAKER OR SIGNIFICANT INFLUENCE NOT PRESENT

• SPOUSE PLAINTIFFS HAVE DIFFERENT VIEWS OF CASE

25

Presentation by: Katherine Cárdenas of Lucas & Cárdenas, P.C.

Principal, Lucas & Cárdenas, Chicago

Over 20 years representing adults and minors in every area of personal injury law

Tried numerous cases across Illinois, Wisconsin and Indiana

Represented clients in Federal Court and before the Supreme Court of Illinois

MemberThe National Trial Lawyers Top 100 Trial Lawyers

Million Dollar Advocates Forum

Illinois State Bar Association

American Association for Justice

Illinois Trial Lawyers Association

Women’s Bar Association of Illinois

Professional Awards/Honors

Top 100 High Stakes Litigators 2017 and 2018

Top 100 Trial Lawyers, National Trial Lawyers Association 2012, 2013, 2014, 2015, 2016, 2017 and 2018

Million Dollar Advocates Forum

PublicationsAmerican Association for Justice – Navigating Discovery, That’s Not My Expert!, January 2016.

27

Right of Subrogation – the Health/Auto Insurance Company can seek payment directly

from the at-fault party in litigation. This often happens in property damage claims.

Therefore there is no lien against the case because the entity is seeking payment from

the at-fault party directly. If the claim is paid by the at-fault party, it will affect the claim

of the plaintiff because the plaintiff cannot seek recovery of damages that the at-fault

party already paid.

Right of Reimbursement – the Health/Auto Insurance Company does not bring a direct

claim against the at-fault party but seeks reimbursement from the proceeds of the

plaintiff’s case. In most states the Company has to perfect a lien against the case

before recovery is granted. In most states, the plaintiff is entitled to reduce the lien

amount by 1/3 to account for the legal fees and a pro-rata share of expenses.

28

ERISA laws apply to all employee benefits – retirement/pension accounts, health insurance, disability insurance, life insurance, long term care insurance, etc.

Government agency employees are not covered by ERISA

ERISA liens reductions are strongly contested due to favorable legal precedent that allows the plan 100% recovery of the funds paid out

But not all ERISA plans allow for 100% recovery. You need to know two things before seeking a reduction: 1) Is it truly a self-funded plan? and 2) If so, does the Master Plan Document clearly state its right of recovery? If the answer is yes to both, a reduction is unlikely.

Even if reduction is unlikely – ask regardless before any settlement is reached. You will have more bargaining power to make an equitable argument for reduction if the case has not been settled.

29

When more than one person or entity caused an injury you may need to apportion the fault among the parties.

This can apply to a case with multiple defendants or to a case with a single defendant wherein the defendant claims the plaintiff was also at-fault for causing his or her own injuries.

In Illinois, comparative negligence of the plaintiff must be plead as an affirmative defense in order for the jury to apportion fault to the plaintiff.

If fault is apportioned to the plaintiff, the verdict will be reduce by the plaintiff’s percentage of fault. If the plaintiff’s fault exceeds 50% the plaintiff is barred from recovery. Every state is different. Some states will not allow a plaintiff to recover if they are 1% at fault vs others allow them to recover when they are 99% at fault.

30

Contribution claims are brought by the defendant if the defendant feels another party contributed in causing plaintiff’s injuries. For example, plaintiff falls while exiting an elevator because the elevator stopped below the level of the floor. Plaintiff sues owner of the building. Owner of the building then brings a claim for contribution against the elevator company for contribution.

In cases where there are claims for contribution, the fact finder then uses apportionment to determine the percentage of fault amongst all the parties.

Again every state has its own laws governing apportionment and contribution.

31

Bruce:

How do you handle apportionment and contribution in Georgia?

32

Indemnity differs from contribution in that indemnity claims assert that the other party is responsible for the damages to the plaintiff.

Indemnity claims are either contractual or equitable.

Contractual indemnity is created by contract to either limit or create indemnity under certain conditions. Indemnity can be complete or partial based upon the terms of the contract.

Equitable indemnity is usually complete as the sued party is claiming it is not at-fault for the injuries sustained by the plaintiff.

33

Verdict Form

Illinois Pattern Jury Instruction B45.03.A

We, the jury, find for [plaintiff's name] and against the following defendant or defendants:

Name of defendant 1 Yes or No



We further find the following:

First: Without taking into consideration the question of reduction of damages due to the negligence of [plaintiff's name], if any, we find that the total amount of damages suffered by [plaintiff's name] as a proximate result of the occurrence in question is $__________________, itemized as follows:

The reasonable expense of past medical and medically related expenses: $_______

Other damages, insert from IPI 30 series) $_______

PLAINTIFF'S TOTAL DAMAGES: $_______

Second: Assuming that 100% represents the total combined legal responsibility of all persons or entities that proximately caused [plaintiff's name] injury, we find the percentage of legal responsibility attributable to each as follows:

a) Plaintiff's name _______%

b) Defendant #1's name _______%

c) Defendant #2's name _______%

d) Other1 _______%

TOTAL 100% 34

What are they?

How did they come up with that number?

Friends/Family with similar cases?

The largest obstacle to settlement is unrealisticclient expectations. Being proactive to addressand set realistic expectations will help provide afoundation of settlement. Prior to discussingsettlement, the client should be provided thefollowing figures: Medical Expenses, MedicalProvider Liens, Medicare/Medicaid Liens,Health/Auto Insurance Liens, Cases loan payoffamount, and Attorney’s Fees and Costs.

35

Client presentation at deposition

Prior verdicts and settlements in similar cases

Seek advice from a colleague

Insurance company’s willingness to pay

Client need to resolve matter

36

Prior to attending a mediation or attempting to settle a case, present your expected settlement range to the client with a detailed breakdown as shown below. We provide the client with this information at least 48 hours prior to entering into negotiations. If you are first presenting your expected range to the client at mediation, he or she may not have sufficient time to process the information to make an informed decision.

Settlement Amount$350,000.00



Atty Fees 116,666.66 Atty Fees 133,333.33 Atty Fees 150,000.00

233,333.34 266,666.67 300,000.00

Atty Cost 2,479.95 Atty Cost 2,479.95 Atty Cost 2,479.95

230,853.39 264,186.72 297,520.05

Healthcare Lien3,559.56



Net to Client Tax Free$227,293.83



37

Negotiate liens before your client accepts the settlement. This is very

important because it determines the net amount to the client. When the

defense has made its final offer or an offer that you feel will adequately

compensate your client, inform defense counsel that the offer is being

considered. Then reach out to the lien- holders to see if they can reduce their

liens. It is important to do this before your client has accepted the offer

because 1) it provides you with a stronger bargaining position and 2) if the

liens cannot be reduced to an acceptable amount, you have valid reason fro

asking for a higher amount from the defense to resolve the matter.

38

personal injury settlement obstacles: medical liens, child...

Documents