Ezell v. Grace Hospital, Inc.

STEELMAN, Judge

concurring in part and dissenting in part.

I concur in those portions of the majority’s opinion dealing with equitable subrogation and holding that the trial court did not apply a *64presumption that the settlement proceeds were the property of plaintiff. However, I must respectfully dissent as to the remainder of the opinion.

In Cates v. Wilson, our Supreme Court stated, “North Carolina law entitles the state to full reimbursement for any Medicaid payments made on a plaintiff’s behalf in the event the plaintiff recovers an award for damages.” 321 N.C. 1, 6, 361 S.E.2d 734, 738 (1987). In Campbell v. N.C. Dep’t of Human Res., this Court held it was irrelevant whether a settlement compensated a plaintiff for medical expenses because “N.C. Gen. Stat. § 108A-57(a) does not restrict defendant’s right of subrogation to a beneficiary’s right of recovery only for medical expenses.” 153 N.C. App. 305, 307, 569 S.E.2d 670, 672 (2002). The applicable portion of the statute dealing with the scope of DMA’s right of subrogation reads as follows:

Notwithstanding any other provisions of the law, to the extent of payments under this Part, the State, or the county providing medical assistance benefits, shall be subrogated to all rights of recovery, contractual or otherwise, of the beneficiary of this assistance, or of the beneficiary’s personal representative, heirs, or the administrator or executor of the estate, against any person....

N.C. Gen. Stat. § 108A-57(a) (2005) (emphasis added).

The above language contemplates a broad right of subrogation, which is indicated by the reference to “all rights of recovery.” Subrogation is not limited to tort recovery, as the statute expressly covers contractual rights or “otherwise.” See State v. Shade, 115 N.C. 757, 759, 20 S.E. 537, 537 (1894) (noting that when the words “or otherwise,” follows an explicit example in a statute, the legislature intends to include every other manner of fulfilling the purpose of the statute, for example here, recovery, no matter what might be the attendant circumstances). The causation language discussed by the majority is from the portion of the statute dealing with the duty of a plaintiff’s attorney to distribute settlement proceeds to DMA, not from the portion of the statute defining the scope of DMA’s right of subrogation, which is set forth verbatim above. The punctuation of the statute gives further credence to this interpretation. The provisions in the statute are set apart by periods, not commas or semicolons. This indicates their separateness. See Stephens Co. v. Lisk, 240 N.C. 289, 294, 82 S.E.2d 99, 102 (1954) (“There is no reason why *65punctuation, which is intended to and does assist in making clear and plain all things else in the English language, should be rejected in the case of interpretation of statutes”) (citations and internal quotation marks omitted). In light of these principles of statutory construction, I do not read the scope of DMA’s right of subrogation as narrowly as the majority.

By remanding this matter to the trial court, the majority is expressly authorizing the trial court to find that if there is not a “causal connection” between an actual injury suffered by plaintiff as a result of Dr. Whalley’s medical negligence and the medical bills paid by DMA, the trial court can reduce the amount of DMA’s lien below the one-third provided for in N.C. Gen. Stat. § 108A-57(a) and this state’s prior case law.

I agree with the majority that no DMA lien would attach to proceeds of a settlement from an automobile accident for Medicaid payments for unrelated cancer treatments. However, that is not the case before this Court.

Plaintiff’s complaint alleged:

27. That as a direct and proximate result of the deviations of the standard of care from and by Defendant Whalley recited herein, Michelle Morland suffered extensive, severe and permanent neu-rologic and physical damage, including cerebral palsy, which has been directly associated with the Defendant’s negligence.

The basis of the suit was a single claim for medical negligence resulting in plaintiff suffering cerebral palsy, a catastrophic condition. The $100,000.00 settlement with Dr. Whalley is a direct result of that lawsuit. This conclusion is unaltered by the fact that during discovery plaintiff realized Dr. Whalley was not as negligent as was originally believed. The settlement with Dr. Whalley was for a single lump-sum of $100,000.00.

Our cases have consistently rejected attempts by plaintiffs to characterize portions of settlements as being for medical bills or for pain and suffering in order to circumvent DMA’s statutory lien. See Campbell, 153 N.C. App. 305, 569 S.E.2d 670; Payne v. N.C. Dept. of Human Resources, 126 N.C. App. 672, 486 S.E.2d 469, disc. review denied, 347 N.C. 269, 493 S.E.2d 656 (1997). The majority would resurrect this practice through a very narrow reading of DMA’s sub-rogation right.

*66This Court’s decision in Payne, 126 N.C. App. 672, 486 S.E.2d 469, provides guidance on this issue. In Payne, DMA had a statutory lien in the amount of $138,198.53. The plaintiff settled his claim for one million dollars, allocated $45,000 of this amount for medical bills, and asserted that DMA was only entitled to one-third of that amount. This Court ordered that DMA was entitled to recover the full amount of its lien of $138,198.53 from the plaintiff. Id. at 677, 486 S.E.2d at 471.

Payne highlights the problem which arises if the courts allow a plaintiff to characterize the nature of the settlement proceeds, whether by denominating them for medical bills or not for medical bills, as was the case in Payne, or causally related to the third-party recovery as posited by the majority in this case. Both devices are designed to circumvent DMA’s statutory right of subrogation and to place more of the recovery in the hands of the plaintiff. However sympathetic one may be to the plaintiff’s plight in this case, such a result is contrary to the law of this state.

DMA’s right of subrogation under N.C. Gen. Stat. § 108A-57(a) is broad rather than narrow. Even assuming the majority’s narrow causation test is proper, any causal connection required for purposes of this statute was satisfied when plaintiff obtained a settlement as a direct result of filing the medical negligence action against Dr. Whalley.

I .would hold that DMA is subrogated to the entire amount of the $100,000.00 settlement and is entitled to receive one-third of that amount as partial payment of its $86,540.92 lien.