Sorrell et al v. Lakeview Regional Medical Center et al
Filing
20
ORDER & REASONS denying USA's 16 Motion for Partial Summary Judgment. Signed by Chief Judge Sarah S. Vance on 5/21/2012. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISTEN B. SORRELL, ET AL.
CIVIL ACTION
VERSUS
NO: 11-3084
LAKEVIEW REGIONAL MEDICAL
CENTER, ET AL.
SECTION: R(5)
ORDER AND REASONS
The United States of America moves for partial summary
judgment on the amount of money to which it is entitled from the
proceeds in the Court’s registry.1
Because the Government fails
to establish the factual predicate for a primary plan, the Court
DENIES the motion at this time.
I.
BACKGROUND
This concursus proceeding stems from a medical malpractice
action filed by plaintiffs Kristen B. Sorrell, Michael Bienvenu,
Staci Bienvenu Ellezy, Harvey Bienvenu, Jr., John D. Bienvenu,
Paul A. Bienvenu, and Emily J. Bienvenu.
Plaintiffs claim
that their mother, Joann Sykes, received negligent treatment
while a patient at the Lakeview Regional Medical Center (“LRMC”),
and, as a result of that allegedly negligent treatment, died of
cardiac arrest at Bogalusa Community Medical Center (“BCMC”) on
1
R. Doc. 16.
February 21, 2000.2
Plaintiffs and LRMC entered a settlement
agreement in June 2010 that would dispose of the action upon the
payment by LRMC to plaintiffs of $15,000.3
On November 17, 2011, LRMC filed a concursus proceeding in
state court to adjudicate competing claims to the $15,000
settlement.4
The petition named as defendants-in-concursus all
plaintiffs, the United States Department of Health and Human
Services Center for Medicare and Medicaid Services (“CMS”), and
James W. Burdette, II, former counsel of record of plaintiffs
Sorrell and Ellezy.5
LRMC asserts that plaintiffs have also made
claims against other medical providers, including BCMC,
Hematology and Oncology, LLC, and the Louisiana Patient’s
Compensation Fund.6
LRMC asserts that Sykes was a Medicare
beneficiary who received benefits from Medicare from February 11,
2000 to February 21, 2000.7
LRMC also contends that Burdette has
asserted a lien in this case to recover his attorney’s fees and
costs accrued in connection with his former representation of
2
R. Doc. 1-1 at ¶6.
3
Id. at ¶2.
4
R. Doc. 1-1.
5
Id. at ¶1.
6
Id. at ¶4.
7
Id. at ¶8.
2
Sorrell and Ellezy.8
On December 16, 2011, CMS removed the concursus proceeding
to this Court pursuant to 28 U.S.C. 1442(a).9
CMS identified
BCMC, Hematology and Oncology Services, LLC, Wayne Lemaire, and
the Louisiana Patient’s Compensation Fund as additional parties
to the action.10
On February 9, 2012, the Court ordered the
funds deposited into the state court registry, $15,030.74, to be
transferred to the registry of the United States District Court
for the Eastern District of Louisiana.11
CMS now moves for summary judgment.12
It contends that
Sykes was a Medicare patient who received conditional benefits in
the amount of $10,757.44 and that it is entitled to repayment of
that amount from the proceeds paid into the registry.
II.
STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
8
Id. at ¶11.
9
R. Doc. 1.
10
R. Doc. 9.
11
R. Doc. 13.
12
R. Doc. 16.
3
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”
Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All
reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985) (quoting C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991).
The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”
Id. at 1265.
4
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim.
See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.
See id. at 324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.
Id. at
325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discover and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).
III. DISCUSSION
The Medicare Secondary Payer (“MSP”) statute authorizes
conditional payments to a beneficiary if a primary plan “has not
made or cannot reasonably be expected to make payment.”
U.S.C. § 1395y(b)(2)(B).
42
See also Thompson v. Goetzmann, 337
F.3d 489, 496 (5th Cir. 2003)(“Stated differently, Medicare
serves as a back–up insurance plan to cover that which is not
5
paid for by a primary insurance plan.”).
A primary plan “is
defined as a group health insurance plan, or as any []other type
of insurance plan, such as workman’s compensation, liability
insurance, or a self-insurance plan, that may reasonably be
expected to pay for services promptly.”
496; 42 U.S.C. § 1395y(b)(2)(A).
Thompson, 337 F.3d at
“If the Medicare program
chooses to make conditional payments when a Medicare recipient
has coverage under a primary plan, then the government may seek
reimbursement for those payments.”
Thompson, 337 F.3d at 496-97.
Moreover, under this provision, “the government has supreme
subrogation over the proceeds payable to the beneficiary of the
primary insurance.”
Waters v. Farmers Tex. Cnty. Mut. Ins. Co.,
9 F.3d 397, 401 (5th Cir. 1993).
Here, CMS submits a declaration by Sally J. Stalcup, a CMS
Health Insurance Specialist who serves as a Medicare Secondary
Payer Regional Coordinator.13
Ms. Stalcup asserts that Sykes was
a Medicare beneficiary during the relevant time frame and that
Medicare issued conditional payments to Sykes totaling $10,757.44
for Part A medical services.14
Ms. Stalcup also asserts that
those payments were “the responsibility of liability insurance,
including self-insurance, as a primary plan under the Medicare
13
R. Doc. 16-2.
14
Id. at ¶¶4-5.
6
Secondary Payer provisions.”15
CMS asserts that the LRMC
settlement payment satisfies the requirement as a self-insured
plan.16
Plaintiffs oppose the motion as premature.17
Despite Ms. Stalcup’s assertion, the Court finds that CMS
fails to establish that Lakeview Regional Medical Center’s
$15,000 settlement satisfies the definition of a primary plan.
See Thompson, 337 F.3d at 497 (the MSP statute “plainly does not
apply automatically to alleged tortfeasors . . . who settle with
plaintiffs”).
As CMS has made no factual showing of the
existence ex ante of a plan to pay claims at LRMC, see Thompson,
337 F.3d at 498, and CMS has the burden of proof on this motion,
the Court finds that CMS failed to establish the factual
existence of a primary plan, and the motion for summary judgment
must be denied at this time.
IV.
CONCLUSION
For the foregoing reasons, the motion is DENIED.
New Orleans, Louisiana, this 21st day of May, 2012.
___
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
15
Id. at ¶5.
16
R. Doc. 16-1 at 6.
17
R. Doc. 17.
7
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