When a personal injury client’s medical bills are or may be paid by MaineCare, counsel must keep in mind the dual and sometimes conflicting goals of protecting the client’s eligibility for MaineCare insurance and maximizing the client’s cash recovery from the case. Succeeding in this endeavor will invariably require careful attention to a unique set of issues and problems, beginning at the very first meeting with the client. Here is an outline of practice pointers which serves as a starting point for dealing with these cases:
1. Keep A Detailed Worksheet Reflecting Payment Of Medical Bills. In some cases, medical bills are paid by a combination of med pay coverage, MaineCare, health insurance, and the client (out of pocket). Handling the case properly requires knowing the total amount of the bills, who has paid what, and the amount of any outstanding balance. Only with these facts, updated in a handy form and at your fingertips, will you be able to negotiate the best reduction of reimbursement claims. This level of preparation is needed to shift payment responsibility to the entity most likely to provide relief to the client, to argue whether certain services are truly accident-related, and to maximize the net recovery to the client.
2. Anticipate Proof Problems At Trial. If the case is tried, the defense may attempt to argue that only the amount paid by MaineCare should be admissible at trial on the issue of the value of accident-related medical treatment (because that amount is likely to be less than the face amount of the bills). Avoid that debate by stipulating to an appropriate value for accident-related treatment, and guard against last-minute motions in limine by designating expert and lay witnesses to testify regarding the reasonableness of bills.
3. Prepare To Shift The Burden. If a stipulation is not possible or likely, use requests for admission, document requests and interrogatories to force the defendant to disclose its available evidence on the reasonable value of medical services other than collateral MaineCare payments.
4. Do Not Accede To Defense Arguments. Defense lawyers routinely argue that MaineCare payments, by definition, equal the reasonable value of medical services, or that MaineCare makes “adjustments” to those medical bills that it deems to be unreasonably high. Those arguments are incorrect and baseless. By its own terms, MaineCare regulations make clear that MaineCare payments do not establish the reasonable value of medical services. See 10-144 CMR 101-1.08-1 and 101-1.02-2(A).
5. Respond To Motions In Limine With Confidence. If you have followed the steps outlined above, you will be ready to respond on the admissibility of MaineCare payments as evidence of the fairness and reasonableness of medical bills. Frame the issue in terms of the collateral source rule: there should be no windfall to the defendant. Cite the Superior Court cases that have ruled in favor of the Plaintiff on this issue. Don’t let last-minute motions in limine derail good trial preparation.
6. Jury Instructions. The comment to Alexander, Maine Jury Instruction # 7-108 (4th ed. 2005) explains, “Medical expense damages may be recovered for charges paid by a collateral source or charges actually incurred but later written off or otherwise not collected.” In a case involving write offs, you may want to bring this instruction to the attention of the trial judge to ensure that defense counsel does not make reference to write offs during closing argument.
7. Ask The Jury To Apportion All Damages. The verdict form should apportion medical bills, lost wages, earning capacity, pain and suffering, and future pain and suffering. Provencher v. Faucher, 2006 ME 59, n. 3, 898 A.2d 404, 407 (allowing damages itemization). If the jury makes a specific finding about medical bills and the defense makes a successful appeal related to MaineCare and the medical bills, only that part of your verdict will be affected by the appeal.
8. MaineCare And Settlement Negotiations. If you are at a point where the case may be settled, you will need to negotiate a repayment of amounts paid by MaineCare. Arkansas v. Ahlborn provides little guidance, and cannot be relied upon to guide counsel to the likely outcome of litigation over what should be repaid. A hearing pursuant to 22 M.R.S.A. §14(2-F) is possible if agreement cannot be reached, but rather than litigating with the State, it is better to employ strategies designed to negotiate a fair, sensible reimbursement payment. The State of Maine will consider factors including that there is limited third-party insurance coverage available, medical causation is problematic, liability is questionable, and compromise may help the client reach the goal of independence, as proper bases for reducing repayments.
9. Maintaining Eligibility. Eligibility guidelines for food stamps and MaineCare are strict. Ensuring that settlement funds do not disrupt the client’s ability to remain qualified for means-tested benefits is a critical component of settlement. You will need to discuss this openly with the client, government officials (at the right time), and possibly with qualified trust attorneys to arrange settlements that meet client goals.