Defendants are directed to turn over the entire amount of the settlement recoveries, up to $38,262.19, to the plaintiff immediately upon receipt of this order or as soon as such funds become available.
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.
Last month, the U.S. District Court for the Southern District of Ohio denied a plaintiff’s personal injury attorney’s motion to dismiss an ERISA plan’s action to seek reimbursement against him and his firm in McKesson v. Dillow, 2020 WL 1469461, Case No. 3:19-cv-164 (S.D. Ohio, March 25, 2020). The facts are much like any other case in this context. Diana Dillow sustained catastrophic injuries as a result of a motor vehicle collision. She retained counsel, Douglas Brannon and the Brannon Law Firm, LLC, for her liability claim against the third party responsible for her injuries. Ms. Dillow’s counsel was successful in securing a pre-suit settlement from the tortfeasor’s carrier in the amount of $5.9 million. Ms. Dillow was an eligible dependent under the McKesson Corporation’s health care plan (a self-funded ERISA plan) which asserted a lien for medical payments made in the amount of $2.1 million. The lien was asserted by McKesson’s recovery agent, the Rawlings Company, nearly a year prior to the case’s settlement.
Last week, on May 1, 2019, the United States District Court for the Eastern District of Pennsylvania rejected the logic of the decision in Carpenter Tech. Corp. v. Weida, 300 f. Supp. 3d 663, creating a split within that district and potentially subjecting New York tort victim's $200,000.00 certificate of deposit and $62,000.00 van to recapture by the ERISA plan. I want to thank Professor Roger Baron for bringing this case to my attention. Just 16 months ago, Judge Stengel, of the Eastern District of Pennsylvania held: “Carpenter Technology cannot collect against the defendant's general assets or his assets jointly owned with his wife. The settlement funds no longer exist as a separate identifiable fund, and thus the relief requested cannot be granted.” Carpenter Tech. Corp. v. Weida, 300 F. Supp. 3d 663, 673 (E.D. Pa. 2018).
