Settling Defendants Beware: Eleventh Circuit Holds Settling Insurer Liable for Failure to Protect Medicare Payments Made by Private Insurer

Congress created an uproar among personal injury tort defendants and their insurers when it passed the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) less than 10 years ago. The $1,000 per day fine for failure to report to the Centers for Medicare and Medicaid Services (CMS) the resolution (or partial resolution) of a Medicare beneficiary’s claim, and the potential for double damages if Medicare liens were not satisfied (a requirement derived from the Medicare Secondary Payer Act (MSP), which long predates the MMSEA), stoked great fear. After thousands of articles, seminars, and hours spent studying the MMSEA’s requirements, Medicare no longer is the great concern it was.

A recent decision from the Eleventh Circuit, however, should serve as an important reminder that the MSP and MMSEA are still relevant and that their requirements can extend to payments by private insurers.

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