Schmidt et al v. Bellevue Medical Center L.L.C.

Filing 359

MEMORANDUM AND ORDER - The Motion to Intervene, ECF No. #352 , filed by the Nebraska Department of Health and Human Services is granted. The Nebraska Department of Health and Human Services shall file its Petition in Intervention as a separate docket entry on or before December 22, 2017. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DORAN SCHMIDT, Individually; and
S.S., a minor, by and through Doran
Schmidt, her natural mother and next
friend;
Plaintiffs,

8:13CV143
MEMORANDUM AND ORDER

vs.
BELLEVUE MEDICAL CENTER, L.L.C.,
Defendant.

This matter is before the Court on the Motion to Intervene, ECF No. 352, filed by
Nebraska Department of Health and Human Services (NDHHS) who seeks to intervene
for the purpose of asserting its claim to proceeds of the jury award, pursuant to 42
U.S.C. § 1396k(a)(1)(A). Specifically, NDHHS has submitted a Brief, ECF No. 355, and
Index of Evidence, ECF No. 354, claiming it has paid $145,485.29 for medical expenses
incurred by S.S. to date, and has a right and obligation to seek reimbursement for such
payments from the judgment fund resulting from the jury award against third-party
tortfeasor Defendant Bellevue Medical Center, L.L.C.
Plaintiffs oppose the Motion, asserting NDHHS has no right to intervene, and that
discretionary intervention should be denied because the motion to intervene is not
timely and because the State of Nebraska intervened in this matter at an earlier date to
defend the constitutionality of a statutory cap on the medical malpractice award,
resulting in the reduction of S.S.’s award from $17 million to $1,750,000.
Fed. R. Civ. P. 24(a) provides:

On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless existing
parties adequately represent that interest.
NDHHS notes that 42 U.S.C. § 1396k requires state plans for medical assistance
to include, as a condition of eligibility for medical assistance, that individuals “assign the
State any rights, of the individual or of any other person who is eligible for medical
assistance under this subchapter and on whose behalf the individual has the legal
authority to execute an assignment of such rights, . . . to payment for medical care from
any third party.” NDHHS also notes that 42 U.S.C. § 1396a(a)(25)(A)-(B) states, in
relevant part:
A State plan for medical assistance must provide that the State or local
agency administering such plan will take all reasonable measures to
ascertain the legal liability of third parties . . . to pay for care and services
available under the plan . . . [and] that in any case where such a legal
liability is found to exist after medical assistance has been made available
on behalf of the individual and where the amount of reimbursement the
State can reasonably expect to recover exceeds the costs of such
recovery, the State or local agency will seek reimbursement for such
assistance to the extent of such legal liability.
Whether or not these federal statutes create a right on the part of NDHHS to
intervene under Fed. R. Civ. P. 24(a)(1), the Court concludes that NDHHS has a right to
intervene under Fed. R. Civ. P. 24(a)(2). The Court also concludes that permissive
intervention would be appropriate under Fed. R. Civ. P. 24(b), even if NDHHS did not
have a right to intervene under Fed. R. Civ. P. 24(a). Although the Plaintiffs argue that
NDHHS’s Motion is untimely, the Plaintiffs’ counsel was provided with NDHHS’s Notice

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of Subrogation and Assignment on September 20, 2013, ECF No. 354-3, and the Court
finds the granting of the Motion will not unduly delay or prejudice the adjudication of the
Plaintiffs’ rights.

Accordingly,
IT IS ORDERED:
1.

The Motion to Intervene, ECF No. 352, filed by the Nebraska Department
of Health and Human Services is granted;

2.

The Nebraska Department of Health and Human Services shall file its
Petition in Intervention as a separate docket entry on or before December
22, 2017.

Dated this 14th day of December, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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