Double Damages for a Private Cause of Action in the Medicare Secondary Payer Act?
Have you been threatened by plaintiff’s counsel with a claim for double damages under Medicare Secondary Payer Act? It was tactic that was fairly popular a few years ago citing:
Avoiding Double Damages of the Private Cause of Action in the Medicare Secondary Payer Act by Ian Leslie (printed in The Worker’s Compensation Newsletter and in response to the above article).
The MSP provides a private cause of action against a primary payer for damages if a primary payer fails to provide primary payment or appropriate reimbursement for payments made by Medicare. Appropriate reimbursement can be made at the time liability is admitted; the alleged primary payer’s responsibility to pay must be established before a private cause of action can be brought.
A private cause of action can only be brought against proven tortfeasors, not against alleged tortfeasors. Furthermore, the private cause of action can only be brought against proven tortfeasors who refuse to reimburse Medicare after liability for primary payment is established. If Medicare is properly reimbursed, the private cause of action is eliminated. The threat of any private cause of action can be disarmed by taking care of Medicare liens at the time of settlement. Medicare’s right to reimbursement vests at the moment liability is accepted by the responsible party.
As long as Medicare is paid, neither the beneficiary nor Medicare has a private cause of action under the MSP Act.
It’s just a ploy to try and get more money.
I would like to hear about some of the more recent ploys used to increase a settlement amount by arguing what would be recoverable under the MSA. If you don’t want to share here, feel free to contact me at firstname.lastname@example.org or at 318-222-2426.