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Question: What is the best way to defeat a Medicare lien in a personal injury case?

Answer:

In your bill of particulars, you should specifically state that you are not seeking recovery of past medical expenses.  When asked for the amount of the medical expenses in a bill of particulars, you should state that, “Plaintiff does not seek to recover medical expenses, past or future, in the present lawsuit.”

In Bradley, the survivors did not seek recovery of the decedent’s medical expenses in their wrongful death action. Bradley v. Sebelius, 621 F.3d 1330, 1337 (6th Cir. 2010)(see also, Benson v. Sebelius, 771 F.Supp.2d 68 (District of Columbia 2011).  Because no medical costs were sought in the wrongful death action, the court in reasoned that Centers for Medicare and Medicaid Services (“CMS”) was not entitled to recover Medicare payments from the plaintiffs’ wrongful death settlement. Denekas v. Shalala, 943 F.Supp. 1073 (S.D. Iowa 1996). In Denekas, the court underscored that the plaintiffs had not claimed any medical costs in pursuing their wrongful death action and noted that Iowa’s wrongful death statute precluded the plaintiffs from claiming any such costs.

The Centers for Medicare and Medicaid Services cannot seek to recover their Medicare lien if you did not seek medical expenses as an element of damages in the lawsuit.  When you receive the letter from the Centers for Medicare and Medicaid Services notifying you of the government’s Medicare lien, you should respond with a letter stating that your client did not seek to recover medical expenses as part of the lawsuit and provide the bill of particulars (or in federal court, your response to interrogatories).

The government cannot seek to recover its Medicare lien if you did not make a claim for medical expenses in the lawsuit.  You might want to amend your bill of particulars TODAY.

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