July 24, 2011

Those who advocate for so-called “tort reform” want to limit the amount of legitimate past, present, and future medical expenses that can be recovered from negligent medical providers. They do so by arguing that there needs to be “caps”(maximum amounts) that people can recover when they are injured through no fault of their own.

If You Are Not The Victim Of Medical Malpractice, How Does This Affect You?

Many people who are injured through medical malpractice negligence have their medical bills paid either by Medicare or Medicaid. Medicare and Medicaid are funded by American taxpayer dollars. When Medicare or Medicaid makes payments to medical providers, YOU are paying the bills out of YOUR pocket through YOUR tax dollars, which could have been put to better use for worthy purposes such as road repairs, assistance to our war wounded, etc.

Under federal law (42 U.S.C. Section 1395y(b)), Medicare does not pay for items or services (including medical care and medical equipment) to the extent that payment has been, or may reasonably be expected to be, made through a no-fault or liability insurer (including a medical malpractice insurance company) or through Workers’ Compensation. However, Medicare can make a conditional payment when there is evidence that the insurance company does not pay promptly so long as Medicare is reimbursed when the insurance company does pay.  Medicare gets reimbursement from the date of the initial incident through the date of the settlement, judgment, or award. Medicare’s right to recover its payments is often called a “super lien” because federal law makes Medicare’s right to recover its payments superior to all other claims. Attempts to work around the Medicare right of recovery is ineffective because Medicare does not honor settlements that are structured to avoid Medicare’s right to recover its payments. Medicare has a direct right to recover its payments by bringing a lawsuit on its own behalf. Only if someone else brings a claim and recovers payments made by Medicare (such as a medical malpractice victim who receives compensation from the negligent medical provider’s medical malpractice insurance company) will Medicare reduce the amount of its claim for reimbursement based on the procurement costs, which are the reasonable attorney’s fees and claim-related expenses paid in order to obtain the settlement or judgment in a disputed medical malpractice case.    

Source: CMS

Medicare’s right to be reimbursed for its payments is short-changed when “caps” are placed on the amount of economic damages (which include such things as medical bills and lost wages) that the injured victims of medical malpractice can recover. For example, the Code of Virginia, Section 8.01-581.15, entitled “Limitation on recovery in certain medical malpractice actions,” states in part, “In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount…July 1, 2008, through June 30, 2012  $2.0 million…” (Source) So if a medical provider in Virginia carelessly causes his patient to become a quadriplegic who will spend the rest of his life in a wheelchair or bed solely because his medical provider screwed up, that negligent medical provider and/or his medical malpractice insurance company will not have to pay more than $2.0 million to his catastrophically injured patient even though the past medical expenses may exceed $2.0 million and the maximum amount of allowable recovery ($2.0 million) must compensate the malpractice victim not only for his past medical expenses resulting from the bad medical care but also the anticipated future medical expenses, the past and future lost wages caused by the medical errors, and the life-long unimaginable pain, suffering, and mental anguish of his permanently injured patient.

So what happens when the $2.0 million runs out? The malpractice victim’s medical care and living expenses must be paid by the federal government and/or by the state in which he lives (that is, by us!). Is this the type of “tort reform” we want or need? If your answer is yes, then open your wallet and hand some of your money over to the victims of medical malpractice!

If you or a loved one suffered serious or permanent injuries or death as a result of the medical malpractice negligence of a medical provider, you may be entitled to recover for your injuries and losses. Visit our website to be connected to medical malpractice lawyers in your area who may be able to assist you with your claim or call us toll free 800-295-3959. Turn to us when you don’t know where to turn.