Grey Bear v. North Dakota Department of Human Services

MARING, Justice,

concurring.

[¶ 44] I join in the concurrence of Judge Bekken. I write separately because I am troubled by paragraph 16 of Part III in the majority opinion. This paragraph states: “Contrary to Grey Bear’s assertion, we do not believe it is the insurance company’s problem if it turns out it paid Grey Bear on a claim he had assigned to the Department.” I disagree with this statement if it means that it does not matter whether the third-party insurer had notice of the assignment or not. I am of the opinion that if the third-party insurer did have notice of the Department’s right to recover and proceeded to settle with Grey Bear for all claims, the Department would have a right to recover payments for medical care from the third-party insurer. See Burgener v. Bushaw, 545 N.W.2d 163, 167 (N.D.1996). If the third-party insurer had notice of the assignment, the Department must be included in the settlement discussions or the third-party insurer risks a separate action against it. Grey Bear, however, did not come forward with any evidence at the time of the summary judgment motion, which would establish the third-party insurer had notice of the Department’s right to recover for medical care. It is interesting to note, however, that the record reveals correspondence between Grey Bear’s attorney and the Department, which indicates the Department had notice of the malpractice action before the case was settled. Again Grey Bear did not produce any evidence the Department placed the third-party insurer on notice .of its rights.

[¶ 45] Further, in this case, once Grey Bear settled with the third-party insurer and provided a release of all claims, he extinguished the Department’s right of subrogation. See id. (“[U]nder general subrogation principles, release of the injured plaintiffs claims against the tortfea-sor released the dependent subrogation rights as well.”). Consequently, the entire settlement was subject to the Department’s claim for medical care. Arguably, because Grey Bear assigned to the Department his right to bring a direct cause of action against the third party for medical expenses, Grey Bear had no enforceable claim for medical expenses and could not settle the Department’s claim. Grey Bear retained, however, his right to bring a cause of action for damages, other than medical expenses, which he incurred as a result of the conduct of the third-party tortfeasor.

[¶ 46] I agree with the conclusion of the Minnesota Supreme Court that the granting of a broad assignment right, such as the majority opinion sets forth in this case, allows the Department “to expand the range of the required assignment to defeat the anti-lien provision,” which interferes with the federal Medicaid scheme. Martin v. City of Rochester, 642 N.W.2d 1, 18 (Minn.2002). The federal anti-lien statute prohibits states from imposing a lien on property of a Medicaid recipient because of medical assistance paid. 42 U.S.C. § 1396p(a)(l) (2000) (“[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid ...”). The purpose of this general prohibition is “to protect the recipient’s limited assets, including nonassigned rights to recover, ...” Martin, at 18. The Minnesota Supreme Court concluded that the federal statutes, 42 U.S.C. § 1396a(a)(25)(H) (2000), 42 U.S.C. § 1396p(a)(l) (2000), and 42 U.S.C. § 1396k(a) (2000), “reflect dual federal objectives: first, protection of the recipient’s *625limited assets from encroachment by the state for reimbursement for medical expenses paid; second, requiring recovery and reimbursement from third parties liable for the recipient’s medical expenses that were paid by Medicaid.” Id. at 14. The Minnesota Supreme Court distinguished several of the cases cited by the majority opinion in this case. The Minnesota Supreme Court further stated:

We are also mindful of the state’s equitable argument that it needs to preserve and recover Medicaid assets. But our resolution of the issue before us does not eliminate the state’s ability to recover medical expenses when third parties are liable. Rather, our conclusion leaves the federal scheme intact and the state retains the assignment of a medical assistance recipient’s right to recover for medical expenses against potentially liable third parties. Indisputably, the state’s rights are limited — they only extend to a recipient’s right to recover for medical expenses. The state has no interest under the assignment in any of the recipient’s recoveries froto third parties for claims other than for medical expenses. But the state does not have to wait for the recipient to initiate an action. Under harmonized federal and state law, medical assistance recipients are required to assign to the state their rights to receive payment for medical expenses from any potentially liable third parties. This assignment enables the state to acquire the recipient’s property rights to this particular claim and to take independent legal action, or, as in this case, to be joined as a party to the recipient’s action. Thus, the state can take an active role as a plaintiff in its own right and does not have to rely on the efforts of others to ensure a recovery of medical assistance expenses. Therefore, even though the method of obtaining medical assistance reimbursement that the state seeks in this litigation is not available to it, the state has other alternatives available to recover medical expenses.

Id. at 24, 25.

[¶ 47] I am persuaded by the clear logic of the Minnesota Supreme Court concluding that' the Department cannot recover for medical expenses paid under Medicaid from settlements or verdicts for pain and suffering, loss of earnings, and other elements of damage, none of which are compensated by the Department through medical assistance.

[¶ 48] MARY MUEHLEN MARING and JAMES M. BEKKEN, D.J., concur.