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Medical Malpractice and Healthcare Subrogation: You Can"t Just Say "ERISA" And Make A Reco

Today's post is a break from the series I started a few weeks ago.
I heard a story about a pending lawsuit and couldn't let it pass without posting some comments.
I'm not going to reveal the names of the lawyers or the parties in order to protect the innocent and the non-so-innocent! Medical malpractice cases are often complicated for ERISA plans.
In most cases, there is a period of medical treatment, a date when the malpractice occurs, and more treatment to fix the malpractice.
It is generally not too difficult to pinpoint the date of the malpractice and separate the medical expenses that are related to the malpractice from the medical expenses that are not related.
But sometimes, plaintiff attorneys will attempt to argue out of both sides of their mouths by arguing to a defense lawyer that, for example, $50,000 in medical expense are related, but then argue to the health plan that only $5,000 in medical expenses are related.
We've done pretty well over the years dealing with this approach by citing the Klapperich case that we won in the USDC for the Northern District of Illinois in the late 90s.
Another type of case that I heard about recently, however, made me laugh at the ridiculous position taken by the health plan's counsel.
The case also reminded me of how important it is for HR representatives and Risk Managers to know what's going on with your healthcare subrogation cases.
I'm betting that nobody really knows the position these lawyers are taking.
In this case, the plan incurred $95,000 in medical expenses before the malpractice occurred and $5,000 in medical expenses after the malpractice.
The plaintiff always contended in litigation and settlement discussions with the physicians that only $5,000 was related.
The health plan intervened in the federal court malpractice lawsuit.
Ultimately, the plan was told it would have to present expert testimony to prove that the malpractice was related.
Do you think the plan's counsel will be able to establish liability for medical expenses that were incurred prior to the date of the malpractice? Me neither.
(By the way, I'm not saying that there won't be times when a health plan will be able to retain expert testimony that might be more effective than the expert that the member hired, but that's not this case).
At one of the hearings, after being challenged about his approach, the plan's counsel allegedly said, "but we're ERISA"!!! "I thought we just said 'ERISA' and we got paid"! Nope, it doesn't work that way! He'll likely learn that lesson soon enough.

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