There is another provision for mandatory 5 year interviews with all nursing home residents which sounds spooky. This bill is a hoax and happily some congressmen are getting booed and heckled in their home districts. Voters who call their representives to oppose the bill are getting insulted as being unpatriotic.// If one is lucid, buy a Winnebago and move near a loving child rather than submit to Obama's plan for culling the population on his terms.
On Jul 21, 5:18�pm, dick thompson <[email protected]> wrote: > � Medicare qui tam: a health care bill surprise > > by Walter Olson <http://overlawyered.com/author/walter-olson/> on July > 17, 2009 > > Contacts on Capitol Hill inform me that Republicans yesterday managed to > block a remarkable provision that had been slipped into the House > leadership's 794-page health care bill just before it went to a House > Ways & Means markup session. If their description of the provision is > accurate --- and my initial reading of the language gives me no reason > to think it isn't --- it sounds as if they managed to (for the moment) > hold off one of the more audacious and far-reaching trial lawyer power > grabs seen on Capitol Hill in a while. > > For some time now the federal government has been intensifying its > pursuit of what are sometimes known as "Medicare liens" against third > party defendants (more > <http://www.pointoflaw.com/archives/2009/06/medicare-liens.php>). In the > simplest scenario --- not the only scenario, as we will see below --- > someone is injured in, say, a car accident, and has the resulting > medical bills paid by Medicare. They then sue and successfully obtain > damages from the other driver. At this point Medicare (i.e. the > government) is free to demand that the beneficiary hand over some or all > of the settlement to cover the cost of the health care, but under some > conditions it is also free to file its own action to recover the medical > outlays directly from the negligent driver (who in some circumstances > might even wind up paying for the same medical bills twice). It might do > this if, for example, it does not expect to get a collectible judgment > from the beneficiary. > > The newly added language in the Thursday morning version of the health > bill (for those following along, it's Section 1620 on pp. 713-721) would > greatly expand the scope of these suits against third parties, while > doing something entirely new: allow freelance lawyers to file them /on > behalf of the government/ --- without asking permission --- and collect > rich bounties if they manage thereby to extract money from the > defendants. Lawyers will recognize this as a /qui tam/ procedure, of the > sort that has led to a growing body of litigation filed by freelance > bounty-hunters against universities, defense contractors and others > alleged to have overcharged the government. > > It gets worse. Language on p. 714 of the bill would permit the lawyers > to file at least some sorts of Medicare recovery actions based on "any > relevant evidence, including but not limited to relevant statistical or > epidemiological evidence, or by other similarly reliable means". This > reads very much as if an attempt is being made to lay the groundwork for > claims against new classes of defendants who might not be proved liable > in an individual case but are responsible in a "statistical" sense. The > best known such controversies are over whether suppliers of products > such as alcohol, calorie-laden foods, or guns should be compelled to pay > compensation for society-wide patterns of illness or injury. > > A few other highlights of the provision, pending analysis by persons > more familiar with Social Security and Medicare law than myself: > > � � * A bit of language on p. 714, I am told, would remove a significant > � � � barrier to litigation, namely a rule authorizing a lien action to > � � � be filed on behalf of Medicare only after a previous "judgment", > � � � that is to say, only after the success of an earlier lawsuit (by > � � � the injured party) establishing responsibility for the injury. > � � * Language on p. 715 would double damages in cases of "intentional > � � � tort or other intentional wrongdoing". > � � * P. 716 specifies that "any person" may bring the action, that is, > � � � it need not be a lawyer representing the injured person or any > � � � other injured person. > � � * P. 717: the bounty would be a rich one, 30 percent plus expenses. > � � � P. 719 provides that even if the federal government itself > � � � intervenes and insists on taking over the lawsuit, the > � � � bounty-hunter would still get a minimum of 20 percent, perhaps as > � � � reward for winning the race to the courthouse. No one other than > � � � the federal government could oust the first-to-file lawyer from > � � � control of the action, so other private lawyers who lost the race > � � � to the courthouse would be out of luck. Page 720 specifies that > � � � the suit may be settled "notwithstanding the objections of the > � � � United States" --- that is, the objections of the entity on whose > � � � behalf it was supposedly filed --- if a court so agrees. > � � * Medicare would have to cooperate with the private lawyers, whether > � � � or not the government joined or approved of the action, by handing > � � � over various documents useful to them. > > For the moment, at least, the bullet seems to have been dodged. Some > Republicans on the committee spotted the issue and raised strong > protests, and by the end of the day an agreement had been reached with > Democratic managers to withdraw the provision. That still provides no > guarantee that it will not rear its head later in the process at some > stage that proponents judge more favorable to their designs. > > The idea being promoted here is an atrocious one. Even when it comes to > garden-variety torts, there are many entirely legitimate reasons why > federal managers might not decide to pursue Medicare liens from every > possible defendant. To take only one example, they might have scruples > about suing peripheral defendants who might be made to cough up > settlement money to avoid the costs of litigation but against whom > liability was doubtful. Freelance private lawyers would be free to sue > everyone in sight and employ the most hardball tactics along the way. If > the language about epidemiological and statistical evidence is indeed > meant to pave the way for future suits against liquor, gun or > cheeseburger purveyors, it represents a stealth attempt to restore via > fine print a lawyerly dream that the courts have almost uniformly > rejected over the past decade, as well as personally enrich lawyers with > fees that could soar beyond even those of the scandalous > tobacco-Medicaid litigation. Who in Congress slipped this language in, > anyway --- and on whose behalf? > > Incidentally, this is not the first time the idea of > Medicare-lien/"secondary payer" qui tam has been given an outing. In > 2006 the famous Erin Brockovich lent her name and efforts to lawsuits > filed by Wilkes & McHugh and another law firm pursuing the highly > adventurous theory that a qui tam right to sue over tort-induced > Medicare overpayments already exists, at least against hospitals. This > campaign fared extremely poorly in court (see our earlier coverage here > <http://overlawyered.com/2006/06/erin-brockovich-takes-role-as-plainti...>, > here > <http://overlawyered.com/2006/11/update-brockovichs-medicare-billing-l...>, > and here > <http://overlawyered.com/2007/03/another-brockovich-medicare-suit-dism...>). > Last year, in a case argued by Kenneth Connor > <http://overlawyered.com/early-years/march-2001-archives-part-1/#0302c> > for Wilkes & McHugh, the Sixth Circuit ruled that claims brought by > Wilkes's client against dozens of hospitals were "utterly frivolous" and > ordered counsel to show cause why sanctions should not be imposed for > "unreasonable and vexatious" appeals (Stalley v. Methodist Healthcare > <http://www.jonesday.com/files/News/021ad509-26f9-4de7-8637-0fa8911ffe...>, > PDF; more <http://www.jonesday.com/news/news_detail.aspx?newsID=S1334> > at Jones Day site). (*reposted with slight changes* and bumped from an > earlier post this morning) (& welcome Popehat > <http://www.popehat.com/2009/07/17/5411/>, Coyote > <http://www.coyoteblog.com/coyote_blog/2009/07/tort-lawyer-full-employ...>, > Weisenthal/Business Insider > <http://www.businessinsider.com/massive-gift-to-trial-lawyers-found-in...>, > Hemingway/NRO "Corner" > <http://corner.nationalreview.com/post/?q=ZjA3NmU4NDgyZjk3NGU5MDQ3NWRj...>, > For What It's Worth > <http://christopherfountain.wordpress.com/2009/07/17/did-jim-himes-rea...>, > Blogs for Victory > <http://blogsforvictory.com/2009/07/18/ezra-klein-provides-party-line-...>, > TigerHawk > <http://tigerhawk.blogspot.com/2009/07/health-care-reform-bonus.html>, > The Agitator > <http://www.theagitator.com/2009/07/18/saturday-linksopen-thread-15/>, > Colossus of Rhodey <http://colossus.mu.nu/archives/289833.php> readers). > > � � * Share/Save/Bookmark > � � � > <http://www.addtoany.com/share_save?linkurl=http%3A%2F%2Foverlawyered....> > > � � � � Related posts > > � � * "Erin Brockovich Takes Role as Plaintiff in Medicare Suits" > � � � > <http://overlawyered.com/2006/06/erin-brockovich-takes-role-as-plainti...> > � � � (2) > � � * Update: "Brockovich's Medicare-billing lawsuits tossed" > � � � > <http://overlawyered.com/2006/11/update-brockovichs-medicare-billing-l...> > � � � (0) > � � * Another Brockovich Medicare suit dismissed > � � � > <http://overlawyered.com/2007/03/another-brockovich-medicare-suit-dism...> > � � � (2) > � � * Wilkes & McHugh sued over alleged Tenn. fee grab > � � � > <http://overlawyered.com/2007/02/wilkes-mchugh-sued-over-alleged-tenn-...> > � � � (0) > � � * White Coat Rants on "never events" > � � � <http://overlawyered.com/2008/08/white-coat-rants-on-never-events/> > � � � (14) > > Tagged as: Erin Brockovich > <http://overlawyered.com/tag/erin-brockovich/>, Medicare > <http://overlawyered.com/tag/medicare/>, qui tam > <http://overlawyered.com/tag/qui-tam/>, Wilkes & McHugh > <http://overlawyered.com/tag/wilkes-mchugh/> > > { 5 trackbacks } > > PointOfLaw Forum > <http://www.pointoflaw.com/archives/2009/07/bountyhunters-p.php> > � � 07.17.09 at 11:39 am > | Popehat <http://www.popehat.com/2009/07/17/5411/> > � � 07.17.09 at 11:54 am > The Colossus of Rhodey <http://colossus.mu.nu/archives/289833.php> > � � 07.18.09 at 10:12 am > Republicans stop (for now) Dems offering of audacious and far-reaching > trial lawyer power grabs in Health Care Bill. <http://caagenda.com/?p=71201> > � � 07.18.09 at 6:50 pm > Tort reform? � A Priori Concepts > <http://jeffreysykes.wordpress.com/2009/07/18/tort-reform/> > � � 07.18.09 at 7:51 pm > > { 13 comments... read them below or add one > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > > } > > 1 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Max Kennerly > <http://www.litigationandtrial.com/2009/01/articles/the-law/for-people...> > 07.17.09 at 12:59 pm > > � � Why, exactly, should the taxpayer instead of the tortfeasor be on > � � the hook for medical costs due to the tortfeasor's conduct? Your > � � objection is the essence of socialism: that society as a whole, > � � rather than the responsible individuals, should bear the cost of the > � � individual's conduct. > > � � As a practical matter, the Centers for Medicare & Medicaid Services > � � (CMS) has nowhere near the resource to find and file these lawsuits, > � � much like how the DoJ has nowhere near the resources to root out and > � � litigate every fraudulent claim. So why not authorize, at the very > � � least, the injured party to serve as realtor and expend their time > � � and energy to recover damages on behalf of the taxpayer? > > 2 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Ken <http://www.popehat.com> 07.17.09 at 1:15 pm > > � � Max, by "the injured party" do you mean the person who received the > � � Medicare treatment? > > � � My answer to your question, by the way, is that a qui tam approach > � � --- particularly as unrestrained by the terms described in this post > � � --- is a hideously inefficient and unfair system of attempting to > � � assign actual legal responsibility. Thanks to the utter lack of > � � serious barriers to or consequences for filing meritless suits, it > � � mostly serves as a mechanism to transfer money to lawyers. > > 3 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Max Kennerly <http://www.litigationandtrial.com/> 07.17.09 at 1:59 pm > > � � I do indeed mean the person who received the treatment and then > � � brought the suit against the tortfeasor. Such would then sharply > � � limit 'relator' status to those in the best position to know the > � � extent of such medical expenses and the liability of the defendant. > � � Indeed, if drafted correctly, such a procedure would allow for > � � /both/ the injury suit and the medical costs suit to proceed > � � side-by-side and get neatly wrapped up together at time of verdict > � � or settlement. > > � � Let me point out that for years state governments have been imposing > � � liens on personal injury settlements and verdicts, despite > � � Medicare's own anti-lien provisions. (There's currently litigation > � � over this issue.) These are, again, costs borne by society (and > � � attempted to be recouped against the injured party) due to someone > � � else's malfeasance. > > � � I'd like to hear what system you have in mind that's more efficient > � � and fair than the qui tam approach, which has done a remarkable job > � � of both outsourcing work to private parties and of encouraging > � � whistleblowing by persons aware of false claims. Do you think a > � � large government bureaucracy should be established to recover these > � � sums? How would that be "efficient" or "fair?" They would barely > � � have any information on where to start, much less the resources to > � � pursue these costs. > > 4 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Robert 07.17.09 at 6:54 pm > > � � Is the Thursday morning version of the bill available online? > > 5 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Walter Olson 07.17.09 at 7:13 pm > > � � I don't have the means to post PDFs. I am happy to send along the > � � bill to someone who does (it's a big file, as can be imagined), but > � � it's likely that someone has already posted it, so finding a URL for > � � that would save the trouble. > > 6 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Georg Felis <http://georgfelis.blogspot.com> 07.18.09 at 12:09 am > > � � So, unlike what Max thinks, if this monster had blundered thru to > � � become law, the *first* lawyer to file on behalf of the legions of > � � diabetes sufferers blaming the manufacturer of Corn Sweeteners for > � � their condition could possibly be in line to collect fees that the > � � tobacco lawyers could only dream about, right? Then the suits > � � against the oil companies for diesel particles in the atmosphere > � � causing asthma, fast food companies for fatty foods, and so on ad > � � nausum. Ick. > � � Keep up the good work, and keep stomping these turkeys. > > � � If Bob is injured, and sues, and collects, thats law. > � � If Bob is injured, and somebody he has never seen in his life sues > � � and collects for him, and sends the money collected to somebody else > � � Bob has never heard of, then that's a travesty. > > 7 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Max Kennerly <http://www.litigationandtrial.com> 07.18.09 at 9:57 am > > � � Georg -- that's an objection solely to who should have standing, one > � � I sympathize with. Qui tam 'relator' standing is sharply limited to > � � actual whistleblowers, and there's good reason to limit standing > � � here as well. > > � � So why not permit Bob to bring the suit? Bob was the one injured and > � � treated, the one who knows the details about the liability and > � � costs, the one who was forced to utilize the public services due to > � � someone else's malfeasance. > > 8 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Paul W Dennis 07.18.09 at 10:31 am > > � � It would seem to me one way to control any sort of qui tam adventure > � � would be to make it subject to a strict "loser pays" rule. If one of > � � these little adventures misfires (probably by chasing a non-culpable > � � deep pocket) let them make the wrongly pursued target pocket deeper > � � by assessing all fees and costs plus penalties and interest and > � � suspend the offenders right to litigate until the judgment is paid > > � � If the problem for Medicare is resources, then staff up medicare > � � properly or forget about it. The only honest and ethical bounty > � � hunter ever was Palladin (in Have Gun, Will Travel) and he was a > � � ficticious character . Most are "Dog -- The Bounty Hunter" and > � � allowing them to serve as the enforcer of Medicare liens is beyond > � � repulsive > > � � p.s -- while I disagree with much of what Kennerly says, he does > � � have a very interesting blog > > 9 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Chris Gullen <http://blog.gullenlaw.com/> 07.18.09 at 11:27 am > > � � Personal injury practitioners see many cases in which Medicare (i.e. > � � taxpayers) has paid for medical care of injured parties whose > � � treatment should have been paid by existing health, workers' > � � compensation or other insurance policies or self-insured plans. > � � Likewise there are many cases in which Medicare has paid for > � � treatment of injuries for which a tortfeasor is eventually found to > � � have been responsible. > > � � Existing federal law (Medicare Secondary Payer statute) requires > � � those primary insurance/self-insurance plans and responsible > � � tortfeasors to reimburse Medicare once it is established that they > � � did owe payment for the treatment, but the reality is that > � � reimbursement is often not made. > > � � The MSP statute currently provides for a private right of action > � � (not limited to the Medicare beneficiary) against the primary payer > � � to recover twice the amount paid out by Medicare and, according to > � � the 1st Circuit at least, the party suing for and recovering the > � � double damages does not have to share the bounty with Uncle Sam. > > � � With the current double damages right of action on the books, is > � � there a need for a new qui tam cause of action? > > 10 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Jeff Hall <http://createdthings.blogspot.com/> 07.18.09 at 6:05 pm > > � � The worst part of this idea isn't that it is going to cost the > � � economy a bundle. In the process of transferring money from > � � defendants to lawyers, these qui tam schemes would force thousands > � � of old and sick people to spend a lot of time in court and giving > � � depositions. > > 11 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Meredith 07.19.09 at 4:59 pm > > � � "Who in Congress slipped this language in, anyway --- and on whose > � � behalf?" > > � � Anyone checked Chris Dodd's whereabouts when it got slipped in? > � � Chris Dodd + stimulus legislation = AIG Bonuses > � � Chris Dodd + his housing bill = Payment Card and Third Party Network > � � Information Reporting > > 12 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > Max 07.20.09 at 1:51 am > > � � If we're going to treat the government's right to sue as a profit > � � center, wouldn't the most efficient approach be to auction it off? > � � Then you wouldn't have a wasteful "race". > > 13 > <http://overlawyered.com/2009/07/medicare-qui-tam-a-health-care-bill-s...> > LexisTexas 07.20.09 at 2:03 am > > � � / [S]uch a procedure would allow for both the injury suit and the > � � medical costs suit to proceed side-by-side and get neatly wrapped up > � � together at time of verdict or settlement./ > > � � /But medical expenses would have been included as actual damages in > � � Plaintiff's original suit, so, presumably this provision would apply > � � where Defendant had plead damages only for non-medical, or where > � � they were not specified. > � � I agree that qui tam is a fair, even surprisingly market-oriented, > � � approach to reimbursement of Medicare debts on behalf of the > � � government (as opposed to expecting government attorneys to do it). > � � So, the bill's only unique expansion is to allow private attorneys > � � do the collection work. > � � Fine, but they would still be limited to collecting from the > � � successful Plaintiff--collateral estoppel and one-judgment rule > � � would preclude Defendant or even his insuror from paying twice. > � � As far as attempting to expand liability by statistical analysis out > � � to entire industries---good luck. No amount of Federal legislation > � � is going to change the meaning of "proximate" cause./ --~--~---------~--~----~------------~-------~--~----~ Thanks for being part of "PoliticalForum" at Google Groups. For options & help see http://groups.google.com/group/PoliticalForum * Visit our other community at http://www.PoliticalForum.com/ * It's active and moderated. Register and vote in our polls. * Read the latest breaking news, and more. -~----------~----~----~----~------~----~------~--~---
