Don’t Be Exposed to Paying Double Damages? Beware of Pitfalls in Medicare Cases!

Post-trial motions can be costly for Defendant Health Care Providers in Medicare cases. Here’s an example:

A Circuit Court medical malpractice case involving a Medicare patient goes to trial with a small verdict for the Plaintiffs. While not happy about the outcome, the hospital has no trouble cutting a check for the judgment amount. First, however, you file a motion to reduce the medical bills awarded to “bills paid.”

Three months later, the court grants your motion and the judgment is reduced. As your hospital is preparing to pay the new reduced judgment amount, Plaintiffs file suit against the hospital in Federal Court pursuant to the Medicare Secondary Payer Act. What???

The Plaintiffs claim the hospital “failed” to reimburse timely Medicare for the conditional payments and, thus, is liable for double damages pursuant to 42 U.S.C. § 1395y(b)(3)(A).

The hospital pays the revised Circuit Court judgment against it three days after suit is filed in Federal Court, but now you have to deal with this federal matter! Do the Plaintiffs have standing (what is their “injury in fact?”)? Is the case rendered moot by payment of the judgment? What does “fail” to pay really mean? There are lots of arguments against Plaintiffs? position, but even if you win in motions practice, it will cost you time and money.

So avoid the headache. Because the statute and case law are unclear as to precisely when “double damages” are available, and who is entitled to recover them, work with your counsel ahead of time to prepare a strategy in the event of a judgment involving a Medicare lien.

If you would like to discuss this frustrating scenario, or any other legal issues involving post-judgment issues, please contact us. We are here to help!

Neal Brown

Neal Brown

Neal Brown is a Fellow of the American College of Trial Lawyers and a Martindale-Hubbell AV-rated trial attorney. He is a founding partner of Waranch & Brown, where he has devoted his career to defending hospitals and health care providers in medical malpractice and related cases.
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