Gister v. American Family Mutual Insurance

ANN WALSH BRADLEY, J.

¶ 62. {dissenting). Although the legal framework governing Medicaid is complex, the issues in this case are straightforward. Wisconsin's Medicaid program circumscribes the options available to service providers like St. Joseph's Hospital. Under Wisconsin's Medicaid program, the Gisters are not liable for the cost of their care. To recoup these costs, the hospital has two options. It can bill Medicaid, or it can attempt to recover its charges by joining the Gisters' personal injury lawsuit.

*535¶ 63. Unfortunately, the majority does not undertake a careful examination of the relevant law. Instead, it embraces a third option, unavailable under the law governing Wisconsin's Medicaid program, which violates the important principles underlying the program. These principles should control the outcome of this case. Because I conclude that the Gisters are entitled to a declaration that the hospital's liens are invalid, I respectfully dissent.

I

¶ 64. Although the majority's discussion is at times difficult to follow, it arrives at the conclusion that the hospital is permitted to impose liens on the Gisters' money settlement with the tortfeasor. On the one hand, for purposes of federal law, it acknowledges that the hospital's liens are an attempt to collect from the Gisters. Majority op., ¶ 18. On the other hand, it concludes just the opposite: that the liens are not an attempt to collect from the Gisters, but rather, they are an attempt to collect the Gisters' money. See id., ¶ 31.

¶ 65. Employing a "plain language" analysis, the majority construes the statutory prohibition against "knowingly imposing direct charges upon a [Medicaid] recipient" as prohibiting only those charges that "proceed[] without interruption in a straight course or line" without "deviating or swerving." Id., ¶ 30. Apparently, the hospital's liens "deviate or swerve" sufficiently to satisfy the majority. Because the hospital did not send a bill to the Gisters, id., ¶ 34, and because the liens are directed at the Gisters' property (that is, their settlement money from the tortfeasor) and not at the Gisters themselves, id., ¶¶ 31, 31 n.15, the majority ultimately concludes that the hospital's liens do not constitute "direct charges."

*536¶ 66. The majority acknowledges that the Wisconsin Administrative Code permits the hospital to join the Gisters' lawsuit against the tortfeasor, but that same code provision does not expressly authorize the hospital's liens. Nevertheless, it reasons that it would be a "perverse result" if the hospital were not permitted to file a lien. Id., ¶ 37. It appears to conclude that there is no difference between joining a lawsuit and filing a lien because "the money being sought originates from the same source," "goes to the same recipients," and "is designated for the same purpose." Id.

¶ 67. Finally, the majority attempts to distinguish Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999), by observing that the patients in that case "were protected by statutory and contractual immunity as a result of their HMO." Majority op., ¶ 44. It notes that the Gisters did not subscribe to an HMO, and it concludes that the principles of Dorr have no bearing on this case. Id., ¶ 45.

II

¶ 68. Wisconsin Stat. § 779.80 provides that a charitable hospital "shall have a lien for services rendered ... to any person who has sustained personal injuries as a result of. . . any tort of any other person." The lien "shall attach to" the patient's settlement against the tortfeasor.1

¶ 69. If this case did not involve services provided to Medicaid recipients, there would be little doubt that *537the hospital could impose a lien on any settlement the Gisters received from the tortfeasor. However, the Gisters are Medicaid recipients, and Wisconsin's Medicaid program is highly regulated. Its regulations circumscribe the options available to service providers.

¶ 70. Determining whether the hospital's liens are valid requires a careful examination of the complex statutes and administrative code provisions governing Wisconsin's Medicaid program.2 Unfortunately, the majority does not undertake a careful examination of this law, and as a result, it overlooks two important principles underlying Wisconsin's Medicaid program that should control the outcome of this case.

A

¶ 71. The first principle overlooked by the majority is that a hospital cannot charge Medicaid recipients for services covered by Medicaid. The reason Medicaid recipients cannot be charged is because they are not liable for the cost of these services.

¶ 72. Wisconsin Stat. § 49.49(3m)(a) establishes that "[n]o provider may knowingly impose upon a recipient charges in addition to payments received [from Medicaid] or knowingly impose direct charges upon a recipient in lieu of obtaining payment [from *538Medicaid]." The meaning of this statute is illuminated by Wis. Admin. Code § DHS 104.01(12)(b), entitled "Freedom from having to pay for services covered by [Medicaid]." It plainly provides: "Recipients may not be held liable by certified providers for covered services and items furnished under the [Medicaid] program, except for copayments or deductibles under par. (a). .. ."3

¶ 73. The majority acknowledges that the hospital's liens are an attempt to "collect from the patient[]." Majority op., ¶ 18. Nevertheless, it asserts that the liens do not violate the prohibition against "direct charges." It reasons that the hospital is not seeking "direct recourse" from the patients, but rather, it is seeking recourse from the patients' money. Id., ¶ 31.

¶ 74. This reasoning is not persuasive. There is no meaningful difference between seeking recourse from a patient and seeking recourse from the patient's money. If the prohibition on "direct charges" nevertheless allowed the hospital to file a cause of action against a Medicaid recipient's money settlement because it is "property," what other property belonging to a Medicaid recipient could the hospital seek?

¶ 75. As explained above, Medicaid recipients cannot be charged for covered services because they are not liable for the cost of these services. The hospital's *539attempt to collect the patients' money settlement violates this underlying principle.

¶ 76. For the same reason, the majority's attempt to distinguish Dorr is unavailing. The majority explains that the Dorrs were not liable for the cost of their services because, as members of an HMO, they were protected by statutory and contractual immunity. Majority op., ¶ 39. Here, the law governing Wisconsin's Medicaid program likewise provides that Medicaid recipients are immune from liability for the cost of services they receive.

¶ 77. The Dorr case squarely addresses the issue at hand in this case. There is no legally significant difference between the effect of the statutory and contractual immunity at issue in Dorr and the immunity at issue in this case. Based on the reasoning in Dorr, "no hospital lien can be filed against [a Medicaid recipient's] property because the [recipient] is not indebted to the hospital for the medical services provided." See id., ¶ 43 (quoting Dorr, 228 Wis. 2d at 435).

B

¶ 78. The majority's analysis also overlooks a second important principle underlying Wisconsin's Medicaid program. In a situation like this where a third-party tortfeasor may be liable for services provided to a Medicaid recipient, the hospital has two billing options. It can bill Medicaid, or it can attempt to recover its charges by joining the Gisters' personal injury lawsuit. The law governing Wisconsin's Medicaid program does not authorize any third option.

¶ 79. The hospital's two options are clearly set forth in Wis. Admin. Code § DHS 106.03(8), which provides in relevant part:

*540Personal Injury and Workers Compensation Claims. If a provider treats a recipient for injuries or illness sustained in an event for which liability may be contested or during the course of employment, the provider may elect to bill [Medicaid] for services provided without regard to the possible liability of another party or the employer. The provider may alternatively elect to seek payment by joining in the recipient's personal injury claim or workers compensation claim ... ,4

(Emphasis added.) Additionally, these two options are clearly set forth in a handbook produced by the Department of Health Services to explain the program to health care providers.5

¶ 80. There are advantages and disadvantages to both of the hospital's options. If the hospital chooses the first option and bills Medicaid, its recovery of a portion of its bill is certain, but the hospital will receive reimbursement at a reduced rate as determined by a Medicaid formula.6 If the hospital chooses the second *541option and the lawsuit is successful, the hospital may recover a larger portion of its charges. Nevertheless, reaching a settlement with the tortfeasor may take months or years. Additionally, the hospital's recovery is by no means guaranteed, especially when the tortfeasor has inadequate insurance.

¶ 81. Although the majority acknowledges that the hospital has but two options under the law, it embraces a third option. It permits the hospital to impose a lien on settlement money the Medicaid recipient recovers from the tortfeasor.

¶ 82. The option embraced by the majority is not authorized by the law governing Wisconsin's Medicaid program. When a statute or code provision sets forth specific options, courts frequently assume that any option that was omitted was intended to be excluded.7 The majority discards this canon of construction and concludes that, although just two options are set forth in the law governing Medicaid, three options are allowed.

¶ 83. The majority's justification for allowing the hospital to pursue a third option is based on the premise that there is no difference between joining a lawsuit and imposing a lien on the money recovered from that lawsuit. In both cases, the majority contends, "the money being sought originates from the same source (American Family), goes to the same recipients (the Gisters and St. Joseph's), and is designated for the same purpose (to satisfy the medical expenses incurred by the Gisters after the accident)." Majority op., ¶ 37. Because "it is permissible for St. Joseph's to pursue the *542funds by joining the lawsuit," the majority concludes that "it is therefore permissible for St. Joseph's to pursue the funds through liens." Id.

¶ 84. This premise is false. Imposing a lien on the Gisters' future settlement money is quite different from joining the Gisters' personal injury lawsuit.

¶ 85. If the hospital were to join the Gisters' personal injury suit as a subrogated plaintiff, it would bear certain responsibilities as a party to a lawsuit. It would be required to actively participate in the lawsuit by attending hearings, engaging in discovery, and negotiating possible settlements.

¶ 86. Further, the hospital's entitlement to a portion of the settlement would be subject to various common law principles, such as the made whole doctrine established in Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263, 272, 316 N.W.2d 348 (1982). Under Rimes, "one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the [injured plaintiff] is made whole," and "[i]t is only when there has been full compensation for all the damage elements of the entire cause of action that the [injured plaintiff] is made whole." Id. at 275. Accordingly, if the hospital joined the Gisters' personal injury lawsuit, it would not be entitled to any compensation until the Gisters were fully compensated for all of their damages.

¶ 87. The hospital's attorney well understands the importance of the differences between joining a lawsuit and imposing a lien. During oral argument, he explained: "Absent the availability of a lien,. . . you would be talking at best a subrogated interest which of course would be extinguishable at a hearing pursuant to this court's decision in Rimes. ... I would argue that *543a lien under 779.80 is a priority right that is not susceptible to elimination under Rimes. "8

¶ 88. Unfortunately, the majority fails to grasp these distinctions. By permitting the hospital to bow out of the litigation process and impose a lien on the Gisters' settlement money, the majority arguably allows the hospital to avoid the costs of engaging in litigation and common law principles such as the made whole doctrine. In a case like this where the hospital's charges are substantial and the available insurance proceeds are limited, the hospital could absorb a majority of the settlement, leaving the Gisters and other health care providers, such as doctors, without any recovery.

¶ 89. I conclude that the Gisters are entitled to a declaration that the hospital's liens are invalid. Because the majority's analysis cannot be squared with the principles underlying Wisconsin's Medicaid program, I respectfully dissent.

¶ 90. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE N. PATRICK CROOKS join this dissent.

It is important to note that the hospital lien statute was created in 1961, four years prior to the advent of Medicaid. See ch. 418, Laws of 1961. Accordingly, when the hospital lien statute was created, the legislature could not have contemplated how its provisions would apply to services provided to Medicaid recipients.

The relevant statutes are set forth at Wis. Stat. §§ 49.43-49.499. Additionally, the legislature has authorized the Department of Health Services (previously, the Department of Health and Family Services) to administer Medicaid on a statewide level. Wis. Stat. § 49.45(10); Wis. Admin. Code § DHS 101.01. To this end, the department has devised a complex set of regulations governing the rights and responsibilities of Medicaid providers and recipients. See Wis. Admin. Code Chs. DHS 100-109.

The non-liability of Medicaid recipients is repeated in Wis. Admin. Code DHS § 106.04(3), entitled "Non-liability of recipients." It provides, in relevant part, that a hospital may not "attempt to impose an unauthorized charge or receive payment from a recipient, relative or other person for services provided, or impose direct charges upon a recipient in lieu of obtaining payment under the program ... ."

Wisconsin Admin. Code § DHS 106.03(8) goes on to explain that the hospital cannot attempt to receive payment both from Medicaid and from the recipient's personal injury claim.

See DHFS, All Provider Coordination of Benefits: Medicaid and BadgerCare Information for Providers, at 21, available at https://www.forwardhealth.wi.gov/kw/pdf/all_coord.pdf. The handbook explains:

Providers may choose to seek payment from worker's compensation or civil liabilities. Providers may receive more than the Medicaid-allowed amount from the settlement; however, in some cases the settlement may not be enough to cover all costs involved.
Providers are not required to seek payment from worker's compensation or civil liabilities, instead of Wisconsin Medicaid, because of the time involved to settle these cases. ...

If the hospital choses the first option, the Department of Health Services will bear the responsibility of attempting to recoup those expenses from the tortfeasor. See Wis. Stat. § 49.89(2)-(3).

See FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶ 27, 301 Wis. 2d 321, 733 N.W.2d 287 (discussing the maxim "expressio unius est exclusio alteráis," which means "the express mention of one matter excludes other similar matters not mentioned.").

Because the majority fails to grasp any distinction between joining a lawsuit and imposing a lien, it does not grapple with any potential consequences of its decision. Aside from this brief mention during oral argument, the parties did not brief or argue whether a hospital lien would be susceptible to elimination under Rimes, and that question has not been decided by the court.