Here is a typical example of what happens: an elderly person falls at a nursing home and has to go to the hospital to have an operation to repair a broken hip. This is followed by an extended stay at the hospital and then at the nursing home for rehabilitation. The patient develops a bed sore at the hospital which gets worse at the nursing home. The broken hip, of course, causes a great deal of pain and the bedsore becomes infected. The patient almost dies and has to go to the hospital again for treatment for the infection. Medicare pays for some of the expenses and a private insurance company pays for other expenses. The expenses, of course, are substantial.

The patient then sues the nursing home for negligence in supervision in failing to prevent the fall and for negligence in failing to turn and reposition the patient resulting in a bedsore. After incurring $20,000 in litigation costs to sue the nursing home, it agrees to pay a settlement. Medicare and the health insurance companies throughout Florida, central Florida and Volusia County then claim that they are entitled to all or a portion of the settlement because they have paid for medical expenses which were part of the settlement.

When we tell our clients that the law allows Medicare and the insurance company reimbursement from the settlement for medical expenses they paid, they usually think it is not fair that the insurance company collected premiums and Medicare collected taxes and neither will pay the medical expenses. Even worse if Medicaid has been paying for medical expenses and the patient dies, Medicaid will claim that it is entitled not only to medical expenses it paid that relate to the lawsuit but will also make a claim against the patient’s estate for all payments it made at any time whether they were related to the lawsuit or not.

Part of what we do for our clients is to negotiate with Medicare, Medicaid and other insurance companies to be sure that they are not paid more than the law allows. In some cases negotiation is not successful and we represent our clients in a mini-trial against the insurance company to ask the judge to do what is fair.