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MSP News Brief Issue 3 ][ July, 2007 |
National Association JULY SEMINAR
Registration has been extended: Register online at www.namsap.org Friday, July 20, 2007 9am-5pm EST Located at the Sheraton Colonial Hotel, One Audubon Road, Wakefield, MA. Call for hotel reservations 781-245-9300
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55 Ferncroft Road Suite 201
Danvers, MA 01923
(866) 630-CPSC Toll-free
(978) 774-0540 Facsimile
www.CPSCmsa.com
Employee Spotlight This month, CPSC would like to highlight the achievements and hard work of its Director of Legal Services, Martin Cassavoy, Esq. With diverse experience in civil litigation supplementing his understanding of the MSP, Martin possesses a detailed understanding of the challenges facing insurers, claimants, and counsel. Martin graduated from BU with a Bachelor of Science in Journalism. He earned his law degree from Suffolk University Law School, cum laude, where he received Jurisprudence Awards in Constitutional Law and Professional Responsibility. Martin is a member of the Massachusetts bar and is available to address any issue surrounding MSP compliance.
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55 Ferncroft Road Suite 404
Danvers, MA 01923
(866) 630-CPSC Toll-free
(978) 774-0540 Facsimile
www.CPSCmsa.com
In Stalley v. Orlando Regional Healthcare System, Inc., the Qui Tam, or as it is more commonly known as the “whistleblower statute” was put to the test in Medicare Secondary Payer Act (“MSP”) complaince.
In 1980, Congress enacted the Medicare Secondary Payer Act (the “MSP”) in an effort to reduce federal health care costs. The MSP designates certain private insurers as “primary payers” and designates Medicare as a “secondary payer.”
In situations where Medicare issues conditional payments and the primary payer fails to satisfy their responsibility to pay for the beneficiary’s medical costs, there is a cause of action for double damages against the primary payer. 42 U.S.C. § 1395y(b). A cause of action for double damages may be brought, (1) as a direct cause of action by the government, (2) as a subrogation claim by the government, or (3) as a private cause of action.
Douglas B. Stalley filed a complaint attempting to bring a claim against Orlando Regional Healthcare System (ORHS) on behalf of the United States to recover conditional Medicare payments. The private cause of action provision states that it is established for damages in the case of a primary plan which fails to provide for primary payment.
NAMSAP will be accepting walk-ins for the conference this Friday in Wakefield, MA |
Mr. Stalley did not, however, allege that he was a Medicare recipient, that he had ever received medical treatment at ORHS, or that he knew of any medical malpractice allegedly committed by ORHS.
The Court ruled that Mr. Stalley did not have standing to bring this claim because the MSP statute does not provide for a qui tam action and he did not allege that he has suffered any injury that would support standing.
Please let us know if a free consultation of your approach from Crowe Paradis is of interest to you.
Comparative v. Contributory negligence
By Peter J. Belsito, Esq.
The following is a re-enactment of a conversation between two ordinary reasonable persons that never happened, but should.
Q: Why should I hire an attorney for help with Medicare Secondary Compliance?
A: When handling liability claims, it is imperative that your Medicare compliance vendor is versed in the various legal issues impacting claims. The difference between comparative negligence and contributory negligence is a perfect example of this point.
Q: What is difference between contributory negligence and comparative negligence?
A: Contributory negligence is a vestige from our common law tradition. The doctrine states that an injured party may not collect damages from a party who negligently contributed to her own injury.
Q: That’s a little harsh, don’t you think?
A: Well, many courts have said the same thing which brings me to the three variations of comparative negligence which have been adopted in many states to alleviate the harsh results of the doctrine of contributory negligence. Generally speaking, comparative negligence doctrines are only partial defenses to a lawsuit. They state that the amount of damages owed to the injured party should be reduced by the amount that the injured party contributed to her own injury.
Q: Are there different types?
A: Yes. There are three variations of this doctrine depending on which state has jurisdiction over the lawsuit. The first is called “pure” comparative negligence. For example, an injured person who was, 90% to blame for her own injuries can still recover 10 % from the other party who helped cause her injuries.
Q: What are the other two versions?
A: The second and third variations of are both labeled as “modified” comparative negligence doctrines. The first of these states that an injured party cannot recover if he is 50 % or more at fault. However, if he is 49% or less at fault, he can recover, although his recovery is reduced by his degree of fault. The other version states that injured party cannot recover if she is 51% or more at fault, but can recover if she is found to be 50% or less at fault. Again, her recovery would be reduced by degree of her fault in the injury.
Q: Is each state the same?
A: No, each state has its own approach to comparative negligence. Some states apply a comparative negligence doctrine to certain types of lawsuits, while retaining contributory negligence in other types of cases. The date when a state or court system began using comparative negligence doctrine may also come into play.
Q: What does this have to do with Medicare Secondary Payer compliance?
Complying with the MSP can be a complicated business. When you reach out for help, it makes sense to ask attorneys knowledgeable in the law governing the underlying dispute, whether its workers’ compensation, no-fault automobile insurance, or tort law.
CPSC will be speaking at the following upcoming seminars: NAMSAP - Advanced MSA Seminar - July 20, 2007 - Boston, Massachusetts - www.namsap.org University of Florida - August 15-17, 2007 - Gainesville, Florida |
If you have an idea for an article or a comment on a newsletter, please contact Louis Porrazzo, Esq. at lporrazzo@cpscmsa.com
Editor-In-Chief Louis D. Porrazzo, Jr., Esq.