ANNAPOLIS, Md. (Legal Newsline) – The Maryland Court of Special Appeals on July 5 turned back the appeal of a representative of a deceased woman who claimed the state’s Maryland Act should be pre-empted by a federally run Medicare Secondary Payer (MSP) Act.
"The MSP does not pre-empt any part of the Maryland Act. The purpose of the MSP was to ensure that Medicare is the secondary payer of medical bills to the greatest extent possible. The Maryland Act, as implemented by the trial judge in this case, in no way interfered with, or conflicted with that purpose," the court's opinion stated.
“If this court were to agree with the appellant that MSP preempts the Maryland Act, the appellant would receive $44,442 more than she would receive if the Maryland Act was applied,” the court brief read.
The intent of the Maryland Act is to prevent a plaintiff from receiving money for medical bills that were never charged.
In addition, the court said the purpose of the federal MSP is to ensure that Medicare is the second payer of medical bills to the greatest extent possible, not the maximum possible as the appellant had argued.
Kathy Netro is a personal representative for the estate of Barbara Bromwell, who incurred medical bills totaling $451,956 between June 1, 2011, and June 29, 2013. Bromwell was eligible for Medicare benefits as well as benefits from CareFirst BlueCross and BlueShield.
A total of $62,941.70 in write-offs would make the total Bromwell and her insurers were obligated to pay $389,014.30, the suit states.
Medicare made conditional payments to Bromwell of $157,730 and Bromwell paid $47,609 in out-of-pocket expenses.
Bromwell died and Netro, the representative of her estate, filed a malpractice suit and a survival action against the Greater Baltimore Medical Center (GBMC) alleging suffering during the ordeal by the deceased, in the Baltimore Circuit Court.
A jury on July 22, 2016, found against GBMC and in favor of Netro.
However the jury also found that GBMC’s alleged negligence did not cause Bromwell’s death and rejected a wrongful death claim by the woman’s three surviving children.
The plaintiff and surviving children filed a motion for a new trial, which the trial court denied.
On Aug. 2, 2016, GBMC filed a motion to reduce the verdict based on the Maryland Act, which allows a defendant to file a post-trial motion to reduce the judgment by the amount of the write-offs.
Netro filed an opposition to GBMC’s motion to reduce the money judgment. She contended provisions set forth in the federal MSP pre-empted the Maryland Act because if the Maryland Act did not exist, Medicare would receive $18,500 more in repayment above the amount conditionally paid by Medicare ($157,730).
On Oct. 31, 2016, a trial judge granted GBMC’s post-trial motion to reduce the judgement, rejecting the MSP preemption claim, and reduced the total to $389,014.30.
Netro filed an appeal asking the court if the MSP pre-empted a state law, and if the Maryland Act diminished the best interests of the United States.
GBMC filed a motion to dismiss the appeal claiming the appellant did not have standing to protect the rights of Medicare. The court found the appellant did have standing because she had an interest that would be impacted if her appeal was successful.
The court said a state law may be pre-empted by a federal law if the state law is directly contrary to the federal.
The court rejected the appellant’s argument that Congress intended the MSP to reimburse to the “maximum extent possible” and instead added it was the intent of Congress to make Medicare a “secondary payer to the maximum extent possible.”
“The Maryland Act does not conflict with that intent,” the court brief said.
The court said GBMC's obligation to repay Medicare was $157,730.
The court also rejected an argument by the appellant that GBMC waited too long past an alleged expiration date after the trial court judgement to file for a reduced payment.
The judgment of the trial court was affirmed with costs to be paid by the appellant.