Concerned about your baby’s medical malpractice case and potential Medicaid implications? Wondering how to protect your child’s future care funds? Find answers here!
## Medicaid Repayment Concerns
### Medicaid Claim Upon Winning Lawsuit
Are you worried about Medicaid trying to claim the money won from the hospital in case of a successful lawsuit?
### Future Care Funds at Risk
Want to ensure the money from the lawsuit goes towards your child’s future care, especially considering ongoing medical needs?
## Seeking Solutions
### Avoiding Medicaid Reimbursement
Curious about ways to avoid having Medicaid take the lawsuit funds to repay medical bills?
### Speaking with Medicaid
Should you reach out to Medicaid for more information, or would it be better to keep them out of the legal proceedings?
### Lawyer’s Expertise
Are you expecting more details from your lawyer regarding the Medicaid implications, or is this outside their usual scope?
Dive into the details and find clarity on your concerns regarding Medicaid and your baby’s medical malpractice case. #Medicaid #MedicalMalpractice #Lawsuit #ChildsCare #HospitalMalpractice
You need to discuss this with your lawyer.
But generally speaking, you don’t get to double-dip – you don’t get your bills paid for by one party, *and* a pile of money for the same bills from a second party. It’s incredibly common – I’d go so far to say that it’s the typical outcome – that if someone like an insurer paid bills on your behalf, and you then win payment for those bills in court, that you must reimburse the insurer for what they paid out.
NAL but have dealt with something slightly similar. . Yes, medicaid is going to want to get their money back & will put a lien on your payout. Your lawyer should work to get as high payout as possible so that you get money as well (otherwise, why would you bother with the lawsuit in the first place). Whatever Medicaid puts a lien on, the lawyer can also try to negotiate down on your behalf and they should be paying for the % of attorney fees as well.
This is standard across the board. Medicaid gets paid, your lawyer gets paid, then you.
Pretty much any insurance program or policy has subrogation rights that allows them to recoup funds from responsible parties. If you get hit by a drunk driver, your health insurance company will pay your medical costs, but will often go after the driver and their auto liability insurance for the claim. Medicaid does the same thing.
The key will be calculating the damages. That will include economic losses (previous care, cost of future care, and lost earning potential) and non-economic damages (punitive damages and “pain and suffering”). For this kind of case, your lawyer should be spending a lot of money on experts who will estimate the economic damages that will go way beyond Medicaid’s costs.
The tricky part is when it comes time to talk settlement. Let’s say the total damages are $15 million, but the malpractice insurance offers $10 million as a settlement to avoid trial. Your lawyer may want to take it because it avoids a lot of his costs. He will need to negotiate with Medicaid to make sure they approve the compromise settlement and agree to sharing in his legal fees. Medicaid and your lawyer should share the cost of a settlement, not just you. Your lawyer needs to coordinate with them now, rather than later. In theory, Medicaid could join your lawsuit and gun things up.
My guess is that there is going to be a settlement. Medicaid is going to get something like 2/3 of their past payments. Your attorney will walk away with his fee. You’ll end up with some sort of lump sum (maybe $500k or something), plus an annuity that will pay out for the rest of the child’s life.
It will be absolutely critical that you work with a special needs attorney and a financial advisor who can protect these funds from Medicaid as much as possible and make sure that they cannot be used for other than your child’s benefit. There are lots of litigation and settlement financing companies that monitor settlement fillings. They will try to get you sell your settlement for pennies on the dollar. When your kid becomes an adult, they will try to do the same thing with him. Build a trusted team that comes up with a real plan that ensures a lifetime of security and care that this settlement could bring.
If you settle, you can possibly have your attorney negotiate the Medicare liens down. But yes, they will want the money they paid back for the care.
It’s called clawback and the amount can be negotiated down.
You would likely be responsible to repaying Medicaid. Then your lawyer. Then you.
Which is why you don’t sue for the exact amount of medical expenses but instead you sue for medical expenses, pain and suffering, continued care, and legal fees.
Then Medicaid gets the medical expenses portion, lawyer gets legal fees, and you get pain and suffering and continued care
NAL but part of the agreement you sign with Medicaid is that they can be the beneficiary on lawsuits if they are medically related, they also can take lottery winnings as well
They will assert a lien on any settlement you get to recoup anything they paid for, because part of the settlement is going to be the defendant’s med mal insurance paying your medical bills.
And you can’t “hide” this from Medicare, they will find out once you file suit.
INAL, but am a WC/PI paralegal.
Edit to add: your “compensation” is pain and suffering, etc. Future treatment/lifelong treatment is also considered and added to the settlement amount.
There is pretty much nothing you can do about having to pay back a Medicaid lien, but for the future, you might want to talk to your attorney about a special needs trust.
Also, your state might have limits on how much Medicaid can recover.
Medicaid will be entitled to recouping the medical costs they paid if these costs are paid out as part of a settlement or lawsuit awarded, they have an entire department of workers who handle settlements/suits and most states have legislation requiring attorneys and courts to notify or serve that state with settlement/lawsuit info upon filing. I work in social and health services and specifically in an agency that receives the notifications of pending medical settlements. The medical costs portion of any suit/settlement is a separate calculation from the pain & suffering compensation portion.
I work in Plaintiff’s Personal Injury – I’m not your attorney, this is just practical advise and not legal advise – run this past your attorney.
In my state, we have something called the Collateral Source Rule. Simply put, when a settlement is negotiated, the negotiating parties do not get to consider whether or not your child has health insurance coverage. It’s simply not part of the equation. This is not true in all states, so again – ask your attorney.
Say a bill for service is $100. Medicaid pays $20 of that $100 fee, and then the provider has to write off the difference. When you submit your demand for settlement to the hospital, your attorney is going to submit the full $100 used in my example. Medicaid will ask for reimbursement of their subrogation amount ($20). They may also request something called a “set aside” or “pay down” amount of $X – the settlement funds will pay for your child’s care up until that amount, at which point Medicaid will resume paying for care – this is more common with Medicare and L&I claims. Keep in mind, given that your child has lifelong medical care needs, any proposed settlement needs to cover their future care needs, loss of income, loss of enjoyment of life, and depending on your state – loss of a typical relationship with their parents. Your attorney will likely hire a Life Care planner to assist with determining the future care needs amount, and the funds will likely go into a Special Needs Trust to be used explicitly for your child’s care. Your attorney may also retain a specialist to determine and help them to negotiate this amount. If you have private health insurance, that plan will pay for your child’s care until that set aside is reached, at which point Medicaid would resume paying.
Another thing to ask your attorney about is whether any settlement will impact the income requirements for Medicaid.
When we are negotiating large cases like this, the breakdown is usually settlement, subtract attorney fees, subtract costs to work up and potentially litigate your case, subtract any subrogation interest presented by insurers, pay any outstanding medical bills, then disburse the remainder to the client – in that order.
Ask your attorney about all of this. They are paid on contingency, not hourly, so you won’t be charged to ask them these questions directly.
What has not been said is that the lawsuit and payout will be large to cover both historical and future medical expenses and damages. Yes Medicare can claw back historical expenses but you will then roll the remaining balance into a Trust – Your lawyer should know this?
[https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html](https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html)
There are many different medicaid programs- you need to find one that covers disabilities without looking at family income. Ask your pediatrician to help suggest one. In Utah we have a medically complex care waiver, which my son is on, and DSPD. Neither take into consideration family income but look at medical complexity and disability acuity.
Or talk to a lawyer to set up a trust for your family/child. I’d think that there would be a way to get a malpractice award for pain and suffering while getting Medicaid for caring for a child with severe disabilities.
I’m very sorry. My son was in the NICU for 6 months. He’s 9 and still has complications from prematurity. It’s a hard road.
NAL but I am a retired Social Security Claims Specialist.
If at any point your child might be eligible for SSI benefits, you need to be sure that the settlement money is in a properly set up Special Needs Trust. The lawyer you use for the trust needs to be very well versed in SSI policy for Special Needs Trusts.
I’m so sorry your child was injured.
Short answer is no. Anything that you might recover could be subject to a lien from your medical insurance provider- Medicaid in this case- to reimburse for what they spent in coverage.
Your attorney can attempt to negotiate the lien amount to maximize your recovery.
I’m not in your jurisdiction but past and future costs should be two separate heads of damage in your claim. But you don’t get to keep the money for past costs if they were paid by someone else.
NAL, but I do work in subrogation & work for Medicaid insurances (only certain states).
Your attorney will handle & negotiate the lien with whoever is handling the lien for your specific Medicaid plan, whether it’s Equian, Optum, the state, or Rawlings. There are state laws & regulations that we lien holders must abide by, including equitable distribution & Common Fund/Made Whole doctrines. I don’t know what state you’re in, but most states have those doctrines. We take the value of your case, the settlement amount, fees, costs, pain & suffering, etc into consideration when calculating what is due back to your health plan, and it can absolutely be negotiated. It is very unlikely that your health plan will take the entirety of your settlement. I can 99.99999% guarantee they won’t.
Additionally, your settlement will most likely have to go through probate court & a judge will have to approve the disbursement of settlement funds. A judge would never approve an entirety of a settlement going to a lien holder.
It’s better to get ahold of the vendor sooner rather than later. We can provide documentation (ie an itemization of what your health plan has been billed & paid for the treatment) that can potentially assist in your lawsuit.
You have to let us know what happened to the baby, accident happen intraoperative deaths and other complications happen that are totally out of your healthcare providers control. I’m an anesthetist and speaking from experience we make you sign a consent that explain that many complications can occur and that you as the patient understand and accept the risks. Until we know what happened you your baby, I’m not sure if there is a clear way to answer negligence has occurred. I think it might be helpful to reach out the Medicaid.
Social Worker for individuals with disabilities here: look into a disability trust fund. In Michigan we have one call MiAble. They operate much like a 529 college savings plan. Providing your baby has been diagnosed with permanent disabilities, these plans allow you to put “extra” funds aware for future care without counting against Medicaid or SSI. Personally, I’ve not heard of Medical trying to recoup funds here in Michigan, but if you win a large sum you might lose his Medicaid coverage. This will make it harder or impossible to receive Medicaid funded services.
You can’t just simply hide the lawsuit from the insurance company. By suing the hospital, Medicaid would be notified by the hospital of the lawsuit. It’s common practice.
I’m sorry this happened to your family. Only your lawyer knows the specifics of your case and they can best advise you. But yes Medicaid does and should get reimbursed for their expenses
Can any award be put in a trust for the child?
To add something I haven’t already seen in other comments
I work in the back end of a medical facility, payor analysis of Medicaid. Be aware, every states Medicaid programs have different rules for actual payment.
Be aware than “billable” charges are not what is actually paid. In some states they pay a base 1%. In other states they pay certain charges and not others, and in some states it’s paid “by line”. No matter what charges are billed, Medicaid gets to decide what they are paying for. Depending on the hospital, large balances go through charity programs and even non eligible days are just written off depending on what Medicaid says. Many hospitals also have “adverse outcome” write offs.
Point being the actual amount they expect Medicaid to pay is a tiny fraction of the total amount of the medical bills.
The itemized bill they are required to give you will have the total billable charges per Medicare quidelines.
You can work with a firm that specializes in negotiating medical liens down. Medicaid will still have a legal claim to recouping some of the bills, but the firm can help negotiate on your behalf and in some cases can severely decrease what Medicaid recovers.
If you win, Medicaid will claim some of that money. That being said, the settlement will be for more than the bills paid and Medicaid won’t take the whole lot so you will still get money for your child for their care. Your lawyer should be able to explain how that works.
Correct me if I’m wrong, but can’t OP also file a separate lawsuit for emotional distress as a result of the hospital’s negligence? The amount of grief and trauma this would cause a parent is insurmountable.
NAL, but Medicaid is a low income based program and that money will be considered income. It’s highly likely any money you do get to take home after all is said and done well likely disqualify you from having medicaid until it’s gone…. you may be able to make the winnings go to charity or even a trust (that you have absolutely no access to) for the child when to get to a certain age, but you’ll have to do your research on that….
And the settlement should be enough to cover all costs, past and future. Make sure it is.
So medical costs and pain and suffering are two different parts of the lawsuit. Like two different parts of the equation that each get a different number awarded to them. However I’m a little stuck on you saying that Medicaid jas already paid $6 million out and you expect your child to be on Medicaid the rest of their life and yet you don’t think Medicaid should get any money back?
Also if your child gets a multi-million dollar settlement, Will they even be eligible for Medicaid? Am I misunderstanding Medicaid? I thought it was a low income thing.
Not to mention that if you receive an award after everything is said and done, you will no longer qualify for medicaid until all of that money is gone.
What exactly happened