www.rissman.com
201 EAST PINE STREET
15TH FLOOR
ORLANDO, FLORIDA 32801
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
1 NORTH DALE MABRY HWY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM

900 S.E. 3RD AVENUE
SUITE 210
FT. LAUDERDALE, FL 33316
TELEPHONE (954) 526-5480
TELECOPIER (407) 841-9726
FTLAUDERDALE@RISSMAN.COM

709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

Order on Motion to Enforce § 766.207(7) Fla. Stat.

 

On September 1, 2015, in Serna vs. Westside Regional Medical Center, Case No. 15-0186MA (DOAH Sept. 1, 2006), Judge June McKinney, Chief Arbitrator Administrative Law Judge for the Division of Administrative Hearings in Tallahassee, Florida, entered an order granting defendant's, Westside Regional Medical Center, motion to enforce § 766.207(7), Fla. Stat. Defendant's motion sought to enforce § 766.207, Fla. Stat. to preclude recovery by plaintiffs of any payments made by the ERISA Plan and Medicare as collateral sources. Defendant also argued that pursuant to § 766.207, plaintiffs were prohibited from receiving reimbursement of future medical expenses that may be paid by Medicare.

The facts of the case reflected that the proceeding was governed by §§ 766.201 - 766.212 based on the parties' agreement to undergo a medical malpractice arbitration. Section 766.202(2) defined the term "collateral source" to include payments made to the claimant by or pursuant to any federal or state disability act or any other public programs providing medical expenses, except as prohibited by federal law. In pertinent part, pursuant to § 766.207(7), any net economic damages awarded in the arbitration proceeding shall include past and future medical expenses and shall be offset by any collateral source payments.

ERISA

Plaintiffs argued that the arbitration collateral source statute was preempted by ERISA because federal preemption precluded treating ERISA plan benefits as a collateral source. The parties agreed that the Plan had filed a lien for the full amount of the benefits it paid. While defendants were not contesting the Plan's subrogation rights to recover medical expenses, defendants maintained that plaintiffs were not entitled to recover monies paid by the Plan as §§ 766.202 and 766.207(7)(a) precluded such recovery by designating ERISA as a collateral source.

The administrative court rejected the plaintiffs' argument that the Plan should be able to utilize subrogation rights, holding that the Plan "stands in the shoes" of the insured. The court held that Florida legislature specifically excluded subrogation rights from § 766.207(7)(a). As such, the court held that based on the plain and ordinary meaning of § 766.207(7)(a), plaintiffs' Plan was not entitled to subrogation rights in the arbitration proceeding.

MEDICARE

Further, plaintiffs argued that Medicare was not a collateral source. Plaintiffs maintained that by designating Medicare as a collateral source, it became a primary payer which created a conflict with the Medicare Secondary Payer Act ("MSP"). The court disagreed.

The court explained that the Florida legislature included Medicare in § 766.202(2)(a) with full knowledge of the MSP. This demonstrated that the MSP did not prohibit a state from treating Medicare as a collateral source. If the legislature had intended to exclude Medicare, it would have expressly done so as it did in § 768.76(2)(b), Fla. Stat.

Last, the court addressed the plaintiffs' argument that future Medicare benefits were not collateral sources and, therefore, should be set aside for future medical expenses that might be incurred. The court held that the record was void of any authority to support such a set aside for future Medicare benefits under the MSP. Based on the court's holding that § 766.202(2)(a) expressly designated Medicare as a collateral source and § 766.207(7)(a) limited both "past and future medical expenses . . . offset by any collateral source payments," the court was required to offset future Medicare payments from the arbitration award. Based on the foregoing, the court granted defendant's motion to enforce § 766.207(7).




 

This summary was prepared by Christine Zharova of our firm.


Christine Zharova

 

 


 



* * *