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Medicare Set-asides – Still Not Required in Liability Cases

The old rules were easily understood. Certain workers comp claims required a Medicare set-aside – and the rules for those claims were straightforward. For other claims – liability and no-fault cases – the parties were still required to satisfy Medicare’s interests out of the settlement.

For years, we’ve been told that Medicare set-asides were coming for no fault and liability cases. You’ve been to the seminars. Some attorneys and insurance companies have probably been telling you for years that this is a requirement.

They’ve been wrong. Until now?

As of October 1, 2017, CMS issued new guidance to the Secondary Payer process: MM9893. Sounds ominous, doesn’t it?

The gist of the rule is that CMS will begin to track whether there is a Liability Medicare Set-aside (LMSA) and if there is, Medicare will stop paying for diagnosis codes that should have been covered by the LMSA. Side note – they didn’t do this before? Why the heck not? I thought that was the point of LMSAs, to the extent that they existed. WTH?

The key point to remember is… that’s it. There is NO REQUIREMENT that an LMSA be set up at all. None. All this says is that if there is one, it has to be used before Medicare will pay again. I’m not just making this up – it’s in the guidance and the rule – ” Liability and NoFault MSP claims that do not have a Medicare Set-Aside Arrangement (MSA) will continue to be processed under current MSP claims processing instructions. ”

There has been no statutory change that requires LMSAs. Remember that when someone inevitably misunderstands this minor change.

Of course, don’t kid yourself – that still might happen someday.

(Howard Zimmerle is an attorney practicing injury law in Iowa and Illinois. You can reach him at 309-794-1660 or hzimmerle [at] qclawyers.com)

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Iowa Supreme Court Recognizes Cause of Action for Wrongful Birth (Sort of)

Is this big? Time will tell. Either way, the Iowa Supreme Court ruled in a surprisingly progressive way, joining the majority of states (including Illinois – over 30 years ago) in recognizing a cause of action for wrongful birth. The case (Plowman v. Fort Madison Community Hospital, et al, is linked here). 

The gist of the cause of action is this: if a physician knew or should have known that a child was likely to have a birth defect, but failed to inform the parents, and the parents would have terminated the pregnancy, the parents can sue for the expenses/etc of raising a severely disabled child.

As the court repeatedly asserts, the injury/harm is not the child, the injury/harm is the loss of the opportunity to make an informed decision whether or not to terminate a pregnancy.

Obviously this brings up some hot button issues. This blog is not the place to discuss those right now.

Oddly enough, Iowa does not allow a lawsuit for the wrongful birth of a “normal, healthy” baby. In other words, if your vasectomy is done poorly, too bad.

The case leaves some issues hanging, which will have to be ironed out by other courts in the future. For example:

  1. How disabled does the child have to be? The holding seems to be limited to a “severely disabled child”. What does that mean? As the dissent mentions, where is that line?
  2. What are the damages? Obviously the cost of raising a severely disabled child can be enormous. These damages appear to be allowable. As opposed to some courts, the Iowa Supreme Court refused to “monetize the joy of raising a severely disabled child to offset the costs of raising him.” In other words, the damages will not be reduced just because a parent loves his/her child and enjoys having him/her. This makes perfect sense – despite the burdens such a situation places on parents, all parents I’ve ever known who have children with severe disabilities love and enjoy them immeasurably. Will damages for emotional distress be included? Will medical expenses continue throughout the child’s life expectancy?

It will be interesting to see how this all plays out. Given the current makeup of the Iowa legislature, I wouldn’t be surprised to see this overruled by statute in the next session.

(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. He can be reached at 309-794-1660 or at hzimmerle [at] qclawyers.com)

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More Recognition for Warner & Zimmerle Lawyers!!

We’re proud to announce some significant accolades for both of our attorneys!

Mike Warner was nominated by his peers as a Leading Lawyer in the areas of:

ADR Law: Personal Injury;

Personal Injury: Professional Malpractice Personal Injury Law; and

General Workers Compensation Law.

Additionally, Mike was the most often recommended Personal Injury Plaintiff’s lawyer in the Illinois Quad City area! Being nominated as a Leading Lawyer is a great honor, as it is an award given to less than 5% of the lawyers in the state.

Likewise, Howard Zimmerle was nominated by his peers as an Emerging Lawyer in the areas of:

Personal Injury Law: General; and

Workers Compensation Law.

This award is given to less than 2% of lawyers under age 40 in the state of Illinois.

As always, we are proud of our attorneys, and we couldn’t do our jobs without great clients and an outstanding support staff. You can contact us at 309-794-1660 or hzimmerle [at] mjwlaw.com.

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Why Haven’t I Served on a Jury?

As soon as I sat down to write this, I realized that I should have called the post “How to Get Out of Jury Duty” and gotten a lot more hits. Oh well – the current title will find the right people. People like me, who never get called for jury duty and wonder why.

I saw an article on FiveThirtyEight discussing that same issue. It first cites a small DRI survey noting that 27 percent of US adults had served on a jury at some point. That seems about right – maybe even a little high.

The article also discusses some of the basics – people picked for jury selection must be US citizens, must not be felons, and must have enough English proficiency to do the job. There’s more to it though.

In Illinois, the jury pool is picked from (a) registered voters, (b) drivers license holders, (c) disability identification card holders, and (d) applicants for unemployment. In Iowa, the jury pool is picked from (a) registered voters, (b) drivers license holders, and may include (c) “any other current comprehensive list… including lists of public utility customers”. Obviously this excludes a lot of people – those who don’t drive, haven’t registered to vote, and don’t have any utilities in their name. Quite frankly it excludes a lot of lower income people and people of color. The nature of the citizenship requirement also excludes a significant percentage of the Hispanic population – which often includes Resident Aliens who are not US Citizens.

Even if the system worked well, it could still miss some people. At this moment, my drivers license expired two days ago. It doesn’t list my current address. My voter registration is still at two houses ago – I always mean to get that changed, but I never do… there’s a chance I could have been called but fell through the cracks. I’m not alone.

Finally, one other aspect is the vanishing jury trial. For some reference, there were over 12,000 jury trials in federal courts in 1985. That number fell to just over 2,000 in 2010. State Courts are no different – Iowa, for example, had 1,426 jury trials in state court in 1995, but only 815 in 2014. There are many reasons for that, but the main point is that asking “Why haven’t I served on a jury” may be like asking “Why haven’t I seen a Black Rhino?” They’re both endangered – there just aren’t as many as there used to be.

(Howard Zimmerle is a lawyer practicing in Rock Island Illinois and Davenport Iowa. He can be reached at hzimmerle [at] mjwlaw.com or at 309-794-1660). 

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New Iowa laws help car accident victims get a fair trial

Just a quick overview of some of the new Iowa Civil Procedure rules on one of my other blogs…

Iowa Car Accident Law and Facts

Happy New Year!

One of the interesting things we see each new year are the new laws that go into effect. The State of Iowa adopted some new rules for smaller court cases that will help anyone who has been hurt in an accident get a fast and fair trial.

The cases that make the news are the big ones – the cases in the hundreds of thousands of dollars or in the millions of dollars… and we handle those cases. We also handle much smaller cases – and let’s face it – most auto accident cases are smaller than that. In many cases our clients simply need our help to get their medical bills paid, along with a few thousand in lost wages.

When it came time for settlement discussions, one of the hard realities was that the trial process can be expensive and can take a long time…

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Understanding Illinois’ New Settlement Statute

Illinois recently enacted a new settlement statute, with the goal of alleviating some of the hassles of the personal injury practice. 

We’ve all had cases that have settled but still sat on the shelf for weeks or months due to insurance company delays or lien issues. My partner taught me very early on that a plaintiff’s lawyer’s work isn’t nearly done when the case is settled. 

735 ILCS 5/2-2301 to the rescue*

*to the rescue like someone who calls 911, not someone who actually helps beyond that. It’s a nice statute, but it’s not wearing a cape and flying in to save anyone.

So what does the new statute do?

          1. Defendants must tender a release within 14 days of written confirmation of the settlement.

  • Practice point – after a settlement is agreed to orally, confirm it right away in writing or email. That gets the clock ticking.

          2. A settling defendant must pay all sums due within 30 days after the tender of the executed release.

  • Note that “tender” of the release means personal delivery or delivery with return receipt. In other words, drop it off or send it certified mail.

          3. The plaintiff may protect liens/subrogation interests by agreeing to hold the amount of the claimed liens/subrogation interests in his trust account until the lien/subrogation interest is resolved.

  • Why is this important? In theory, it means that if the plaintiff’s attorney sends the defendant a letter (along with the letter confirming settlement if you’re really on the ball) agreeing to protect those third party interests, there should be no need for anyone else’s name to appear on the check. Likewise, a plaintiff’s attorney can get the ball rolling with the settlement check while continuing to negotiate any liens or subrogation interests.

The scuttlebutt at the moment is that some insurance carriers are refusing to abide by the new statute – especially where Medicare is involved. The statute provides for costs and interest if the defendant does not pay in time. Not sure if that provides enough bite to keep the insurance companies from doing what they normally do, but at least it’s another arrow in the quiver. 

(Howard Zimmerle is a trial lawyer concentrating in personal injury, car accidents, medical malpractice and workers compensation. He practices in Davenport, Rock Island, Moline, Bettendorf, and most of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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So William Shatner is doing ads for a “local” law firm – what does that mean?

A certain firm (I won’t link to them) has been flooding the Iowa airwaves with TV ads featuring William Shatner. We all love Shatner, right? He’s Captain Kirk! He’s Denny Crane! He was on that episode of the Twilight Zone where the Gremlin attacks the plane!

So if this firm could get William Shatner’s support, they must be pretty good, right?

Well, here is William Shatner shilling for some other law firms:

Some firm in Bakersfield California

This one in Virginia

This one in Detroit

You get the idea. There’s a company that cranks these ads out for law firms all over the country. Sometimes they claim to be “local” and say the name of your community when they are in, say, Wisconsin. 

That’s not to say that firms who use these ads are bad lawyers. Or good lawyers. I’m sure some are good, some are bad – all have a good advertising budget.

Just know what’s going on. Do your research when picking a lawyer. 

(Howard Zimmerle is an attorney with Warner & Zimmerle. We have offices in Rock Island Illinois and Davenport Iowa. We don’t claim to have other offices. William Shatner has never said our name, to the best of our knowledge. You can reach us at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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