In this case, the available policy limit was only $1,000,000. There were three claims asserted under a Federal Employee Health Benefit (“FEHB”) Plan, which totaled approximately $240,000. The plaintiff required future coverage under the Plan, including several future surgeries and ongoing therapy. Although the plaintiff had no issue securing the full policy limit, the large purported FEHB lien overshadowed the case and prevented settlement.

The "Surprise Demand" situation is unfortunate, but avoidable. Our attorneys at Precision Resolution make it a point to mention this issue at every liens seminar or CLE at which we are invited to speak. If the conditional payment amount seems low in light of the actual medical treatment that a plaintiff has received; and if you see that there is related medical treatment that is missing from the Payment Summary Form, more investigation is required. It is likely that any “missing” charges will suddenly appear for the first time on a Final Demand letter. In order to avoid the Surprise Demand, it is sometimes necessary to “dispute” Medicare’s conditional payments so that those missing charges will actually appear on the conditional payment letter. It seems counterintuitive, but sometimes the goal is to increase the Medicare payment amount in an effort to get a real and accurate number so that you can properly negotiate a settlement.