Reporting obligations, payments of money, and settlement of cases.  These are all regular and usual areas for attorney attention.  In the past, settlement of medical malpractice cases definitely had rules and obligations.  Infants had to get their compromises, the infirm had to get their guardians, many a settlement had to pass judicial scrutiny.

The medical malpractice field, and by extension, the personal injury field where there will be future medical treatments or where medicare has already made payments for medical treatment has come under unusual and significant statutory treatment.  Medicare and health insurers seek reimbursement, and Medicare has statutory rights to money. 

An excellent article in today’s NYLJ, "Traps for the Unwary: Defendant’s Obligations Under Medicare" by John L.A. Lyddane and Barbara D. Goldberg graphically illustrates the many obligations under federal law for hospitals, physicians and their insurers and attorneys. 
 

"Medical malpractice liability insurers and self-insured entities that ignore the new Medicare reporting requirements do so at their peril. Not only do they face substantial penalties for non-compliance, but if the plaintiff does not reimburse Medicare from the proceeds of a settlement or judgment, the defendant and/or its insurer may be compelled to do so even if payment has already been made to the plaintiff! In such a case, double damages with interest may potentially be imposed.

Accordingly, it is no longer sufficient for defense counsel in a medical malpractice action to be knowledgeable regarding the medical issues in the case, the intricacies of HIPAA and the particular judge’s part rules in order to provide adequate representation to his or her client. Defense counsel must now assume the added burden of ensuring that timely and accurate reports are made to Medicare when a case is settled or a judgment is entered, and that adequate provision is made for reimbursement to Medicare"
 

"The reporting obligation was imposed by the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA), and is applicable to liability insurers and self-insured entities as of January 2011. MMSEA does not change the recovery procedures under the Medicare Secondary Payer statute,1 but strengthens the statute and reinforces Medicare’s status as a payer of last resort by requiring that defendants and their insurers take the lead in determining and reporting a plaintiff’s potential status as a Medicare recipient to the Center for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services.2

Medicare’s status as a "secondary payer" means that its obligation is secondary to that of a defendant or a defendant’s liability insurer. The reporting requirements, set forth in §111 of the act, are designed to ensure that Medicare will be able to recover any "conditional payments" it previously made from the date of injury that should have been made by a "primary payer," including a self-insured defendant or a defendant’s liability insurer.3 MMSEA imposes a draconian penalty of $1,000 a day per claimant for non-compliance.4

The legislation also created the positions of Coordination of Benefits Contractor and Medicare Secondary Payment Recovery Contractor (MSPRC). These entities, essentially, are independent contractors responsible for coordinating the reporting of claims to, and facilitating the recovery of benefits paid by Medicare. The coordination of benefits process identifies primary payers to Medicare for health benefits available to a Medicare beneficiary and coordinates the payment process to prevent mistakes or the unnecessary conditional payment of Medicare benefits. The MSPRC is responsible for determining and recovering the amounts due to Medicare from personal injury claim settlements and judgments."