Through my practice as a New York medical malpractice for many years, I have learned the importance of remaining aware of other out-of-state cases—particularly those to the Supreme Court. Tuesday it was announced that the United States Supreme Court would be hearing Delia v. E.M.A. during their next session. This North Carolina case is a birth injury case where a young girl (E.M.A) was improperly delivered by caesarian section, living the infant both legally deaf and blind, as well as unable to walk, talk and crawl. The infant’s parents settled their medical malpractice case against the hospital for close to three million dollars. However, due to North Carolina’s Medicaid recoupment policies, the state took just over $900,000 of the settlement.
As you may know, Medicaid is a federal health program that assists individuals and families with low incomes and resources. Each state operates a Medicaid program in compliance with Federal law and regulations.
As a Kingston medical malpractice attorney, I find this case interesting and important because birth injury cases are a major aspect of my practice and to me on a personal level. So I feel obliged to keep track and monitor all-important birth injury cases. This case in particular is very important because as I have previously written protecting settlements for infants is important.
In North Carolina, the state can take up to one-third of a medical malpractice settlement in order to recoup costs paid out by the state through its Medicaid or Medicare programs. In the E.M.A. case, North Carolina claims that they paid out $1.9 million from their Medicaid funds for E.M.A.’s medical care. However, North Carolina does not first determine how much of the settlement is for pain and suffering, they just take one-third if the cost paid out by the state was that amount or more. North Carolina is not the only state that does this either.
New York does not have the same law as North Carolina but it is important to watch a case like this and how the Supreme Court decides it. If the Supreme Court determines that the North Carolina law is constitutional, it could have ramifications across through the entire field of medical malpractice and how all cases are settled—including New York medical malpractice cases. In fact, an extreme decision may be the impetus for other test cases or even outlandish legislation to test the limits and bounds of this decision.
The Supreme Court will be determining whether this blanket reimbursement procedure of some states is constitutional therefore capable of being used by other states. This is an interesting case that will be keeping track going forward as the Supreme Court hears the arguments of each side and determines the case.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.