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Traps for the Unwary

By John L.A. Lyddane and Barbara D. Goldberg

Medical malpractice liability insurers and self-insured entities that ignore the new Medicare reporting requirements do so at their peril. Not only do they face substantial penalties for non-compliance, but if the plaintiff does not reimburse Medicare from the proceeds of a settlement or judgment, the defendant and/or its insurer may be compelled to do so even if payment has already been made to the plaintiff! In such a case, double damages with interest may potentially be imposed.

Accordingly, it is no longer sufficient for defense counsel in a medical malpractice action to be knowledgeable regarding the medical issues in the case, the intricacies of HIPAA and the particular judge's rules in order to provide adequate representation to his or her client. Defense counsel must now assume the added burden of ensuring that timely and accurate reports are made to Medicare when a case is settled or a judgment is entered, and that adequate provision is made for reimbursement to Medicare.

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