submitting this article, there had not been
any additional rulings from the Eastern
District of Virginia in the Humana case.
The Humana decision procedurally
involves a motion to dismiss, and it is not
clear as to whether additional defenses
may defeat the MSP action during the
Eastern District of Virginia has allowed
the MSP private cause of action to
continue against the lawyer and the law
firm through its recent decision.
There are obviously several
important take-aways from the facts
in Humana as reported in the Eastern
District of Virginia opinion. First,
check(s) without the endorsement of the
secondary conditional payment payer
and subsequent disbursement invites
a serious risk of adverse action by the
conditional payment payer.
Second, the subject inquiry to
CMS by the defendant law firm was, at
least as far as the secondary payer was
concerned, not comprehensive enough.
Apparently, the defendant law firm's
communications to determine the need
for potential reimbursement were as to
Medicare Parts A and B only and did not
apparently address Part C under which
the conditional payments were actually
made. This apparent miscommunication
highlights the importance of clear
and comprehensive correspondence
and documentation with regard to any
communications with secondary payer
organizations. The message is clear:
MSP private causes of action are going
to become more prevalent as secondary
payers seek reimbursement of conditional
medical payments. Moreover, these
actions include a remedy of double
damages as provided by 42 U.S.C.
§1395y(b)(3)(A).
As for defendants engaged in personal
injury litigation in which a MSP issue
may arise, an initial reaction may be to
insist on indemnification by the plaintiff's
attorney and/or law firm in order to
protect against MSP actions subsequent
to settlement. However, the overwhelming
majority of state ethics opinions hold
that requiring a plaintiff's attorney to
personally indemnify a defendant through
a settlement agreement is unethical. See,
for reference, ABA Model Rules 1.8(e),
1.7(a) and 8.4(a). Readers are encouraged
to consult their own jurisdictions' opinions
on this ethical issue. In summary,
the Humana decision appears to be a
precursor to additional opinions on the
issue of MSP private causes of action
against law firms and lawyers in addition
to "traditional" primary payers.