April 24, 2015
What you should know and how we can help
When medical treatment is sought as the result of a motor vehicle accident the medical provider is entitled to payment for services rendered to treat your injuries. The medical provider will first look to the health insurance carrier whether it is a private plan such as Anthem Blue Cross Blue Shield or popular government plans, Medicaid and Medicare. When a personal injury case settlement is being negotiated or after a verdict has been rendered it is important to know your rights and responsibilities with respect to any liens.
Private Health Insurance
Chances are if you have private health insurance it is provided by your employer and falls under the Employee Retirement Income Security Act better known as ERISA. An ERISA plan can recover for damages received from third parties. In laymen’s terms, the effect is the plan can seek reimbursement for medical bills they have paid on your behalf which are directly related to injuries sustained as the result of the negligence of a third party.
In the event your health insurance plan does not fall under ERISA the plans contract language will dictate the insurers right to any proceeds arising from a personal injury award.
The Department of Medical Assistance Services administers the Virginia Medicaid program. To be eligible for Medicaid an applicant must assign to the state any rights to payment of medical care from any third party. In the event the injured party fails to pursue the claim, the state has the ability to pursue reimbursement from the third party. Medicaid is required to be reimbursed from the proceeds of a personal injury award for medical expenses related to the injury.
Medicare has a federal statutory lien for payments made under the Medicare Secondary Payer Act (“MSP”). The Centers for Medicare and Medicaid Services (“CMS”) and the Medicare Secondary Payer Recovery Contractor (“MSPRC”) enforces the lien against the party receiving a personal injury award. Similar to Medicaid, only medical expenses related to the injury are recoverable by Medicare.
Pursuant to Virginia Code § 8.01-66.2 each hospital, nursing home, licensed physician, registered nurse, registered physical therapist, pharmacy, or ambulance service shall have a lien for services rendered on care to any person injured in an accident as a result of the negligence or alleged negligence of any other person. The lien shall be for the amount of a just and reasonable charge for the services rendered, not exceeding $2,500 in the case of a hospital or nursing home, $750 for each physician, nurse, physical therapist, or pharmacy, and $200 for each ambulance service.
How we can help
ERISA, Medicare, Medicaid, and Hospital Liens should be scrutinized and negotiated on the client’s behalf. In some instances the lien holder will agree to reduce their lien in an amount proportional to the amount the client has paid in attorney’s fees and costs. We at Cravens & Noll believe even though the case has settled, our job is not over, and we will continue to advocate on your behalf until the job is done.
October 4, 2013
A somewhat high-profile medical malpractice case resulted in a hung jury this week in Virginia. The case involved a Rapidan woman who accused a prominent surgeon of employing a questionable surgical technique, resulting in permanent injuries. Two doctors expressed opposite opinions on the surgical technique during the trial, which may have contributed to the jury’s inability to reach a decision.
The woman underwent carpal tunnel and clavicle surgery in 2011 in Culpepper. During the operation, a surgeon tried to implant a metal plate to stabilize the patient’s clavicle – which had been damaged decades earlier – but was unable to screw in the plate because of the patient’s bone condition. As a result, he used surgical sutures instead to stabilize the plate.
Months later, it was determined that a portion of the woman’s collar bone had been sheared off. The surgeon said this was not due to the sutures, but rather the woman’s osteoporosis. The woman then went to another shoulder surgeon, who removed the metal plate.
To this day, however, she suffers pain due to the permanent injury to her collarbone, and her shoulder remains disfigured. She sued the original orthopedic surgeon for $1 million for the allegedsurgical malpractice.
During the trial, a medical witness for the defense argued that the surgeon’s technique – of suturing the plate into place – was a perfectly suitable option. Another doctor testified for the plaintiff, arguing that the technique was bound to fail, and that the sutures fractured her bones.
The six-member jury deliberated for 11 hours and was unable to reach a verdict.
Medical malpractice is a very complicated area of law in Virginia. Not every negative surgical outcome is caused by medical malpractice, as surgery always involves risks. However, when a surgeon deviates from the accepted standards of care, or when a surgeon shows incompetence or makes errors, this is medical malpractice. Victims of medical malpractice have the right to hold their doctors accountable and obtain compensation for their ongoing medical expenses and pain and suffering.
Victims of surgical or medical malpractice should not be discouraged by this case. It is important to hold negligent medical professionals responsible, and victims should seek legal counsel to learn how to do this.
Source: Star Exponent, “$1M medical malpractice case ends in hung jury,” Rhonda Simmons, Oct. 3, 2013
July 15, 2013
In a move that has disappointed many safety-minded experts and organizations, the federal government has declined to establish a new agency designed to investigate certain technology-related patient deaths at this time. Rather, the Office of the National Coordinator for Health Information Technology (ONC) is putting in place a collaborative plan to prevent these particular kinds of patient deaths.
Currently, more and more healthcare providers and hospital facilities are shifting towards electronic health records (EHR) instead of paper-based charts. These electronic records are meant to reduce rates of communication-related errors and misdiagnosis. However, the technology itself has the potential to create new kinds of errors resulting from software glitches, implementation challenges and data input problems.
The Institute of Medicine has recommended that the government create a new agency tasked specifically investigating patient deaths tied to EHR-related errors and other technology-based problems. The government is declining to act on this recommendation at this time. Instead, the ONC will work with public and private organizations to attempt to prevent these deaths in the first place.
Prevention of patient deaths through trend-related data analysis is absolutely a goal worthy of pursuit. However, such initiatives fail to address those deaths which have already occurred and continue to occur in a focused way. It seems that both prevention and investigation of tragedy are necessary in order to both foster patient safety in the future and bring justice to the victims of technology-related medical errors.
The ONC is making important progress by embracing its new prevention-related mission. However, targeted investigations into deaths that do occur are necessary for patient safety and justice as well.
Source: Forbes, “Government Asks Health IT Industry To Police Itself On Patient Safety,” Zina Moukheiber, July 5, 2013
June 3, 2013
Being a patient can be an overwhelming experience. On the one hand, you want to trust in your physician’s expertise and follow doctor’s orders in order to help ensure the best possible outcome for your health. On the other hand, most American adults now understand that because physicians are fallible and the medical error rate in the country is staggeringly high, you do not want to consent to procedures, medications and doctor’s orders blindly.
Unfortunately, a recent study suggests that too many American women are being subjected to invasive interventions and other procedures during pregnancy without a full understanding of the hazards involved in this kind of care. Certainly most of these women are simply trusting that their doctor knows best. However, an informed patient is more likely to make choices that are best for her. In addition, avoiding invasive intervention whenever possible helps to lower rates of pregnancy complications and birth injuries.
The recent study was released by the nonprofit maternity care organization Childbirth Connection. The executive director of that organization explained that “Our survey suggests that pregnant women need to take a more active role to make sure they get the care that is best for themselves and their babies. They need access to trustworthy information about the benefits and harms of interventions, to educate themselves, and be their own advocate.”
Why is an active approach to patient care so critical for pregnant women? Because informed patients are less likely to cave to physician pressure in situations that do not warrant invasive and potentially hazardous interventions. In addition, interventions tend to breed additional interventions, so informed patients can often avoid multiple challenging procedures if they are educated about risks and alternatives.
Legal recourse is generally available for patients who are harmed by invasive procedures. But ideally, patients may avoid many of these potentially dangerous procedures in the first place by advocating for themselves in an informed way.
Source: Consumer Reports, “Pregnant? Watch out for unnecessary c-sections and other questionable medical procedures,” Joel Keehn, May 8, 2013
March 1, 2013
Healthcare providers will inevitably make mistakes. Though physicians and nurses are trained to treat every patient in accordance to certain standards of care, healthcare providers are human and will make mistakes from time to time. It is correct that these providers be held accountable for the mistakes they make, should those mistakes cause patients harm. Patients aim to hold providers responsible and obtain the compensation they deserve through medical malpractice claims.
However, the inevitability of mistakes on the part of providers should be informing the functionality of the medical malpractice system more than it currently does now. Based on a physician’s area of expertise, he or she will face a medical malpractice claim every seven years or so. These claims should be processed with appropriate urgency and then if the physician has not behaved so negligently that his or her license is suspended, he or she should then be allowed to return to work informed by the knowledge that his or her mistakes have real consequences.
Unfortunately, the medical malpractice system functions largely without the expectation that nearly all physicians will face malpractice claims over the course of their careers. The legal battles over these claims drag on so long that a recent study published in the journal Health Affairs indicate that 10 percent of any given physician’s medical career will be spent dealing with these claims.
The current structure and procedures governing the medical malpractice system are contributing to patient harm and physician resentment. If the system was more prepared for the fact that physicians will make mistakes and should be held accountable for them, perhaps doctors could practice more medicine and patients could receive their due more quickly and efficiently than they can currently.
Source: Forbes, “Medical Malpractice: Broken Beyond Repair?” Robert Glatter, Feb. 6, 2013