21 year old male with significant medical history, including common variable immunodeficiency disorder which limits ability to handle infection was given live vaccine which was contraindicated.He was subsequently diagnosed with varicella infection and progressive outer retinal necrosis caused by the live vaccine. Retinal necrosis of the left eye is currently stable but there are continued risks for diminution. The visual acuity on the left is currently 20/60 but on the right the patient is only able to see light and movement. Economic damages consist of future wage loss and future health care needs. The claimant is expected to live an additional 54.6 years. Medicaid has paid claimant’s past medical care, including the care resulting from the error. They have asserted a lien. The claimant is not currently a Medicare beneficiary.
TERRI: “Let’s start with the Medicare issue, does this case have to be reported to Medicare?”
TERRI follow-up: “I thought we had to report if the person was going to be on Medicare in the near future?”
TERRI to DAN: “What can a structure do to address the impact this will have on the plaintiff’s earing capacity over his lifetime?”
Plaintiff, a 53 year old married male suffered a syncope episode and he fell and hit his head while on job related travel. He was diagnosed with a myocardial infarction and blood was noted to be in his ear; the head CT was initially read as negative and he was taken to the cath lab for a percutaneous intervention and stent placement. As part of the procedure he was given anticoagulants. The final read of the head CT was basilar skull fracture and possible subarachnoid hemorrhage. Unfortunately, anticoagulation continued for several hours and as a result the patient suffered a traumatic brain injury and is unable to walk, speak, or perform activities of daily living. He is incontinent and his mental status is greatly diminished. He lives at home with his wife and receives 24 hour nursing care as well as physical, occupational and speech therapy. Plaintiffs claim he will not return to work and he had intended to work to age 66-2/3 years of age. Plaintiff is also receiving WC benefits for the same injury. Plaintiff is currently a Medicare beneficiary as a result of his injuries. His economic damages include past and future medical care, and lost wages, including stock options
TERRI. “Mike, let’s talk about the future impact of this claim. Does Medicare expect me to do a Medicare Set-aside like they do in Worker’s Comp cases?”
TERRI: “What about the person having WC benefits? How would I address that in the settlement documents?”
Different – border, colorTERRI to DAN: “Even with the future medical being cover by WC, the plaintiff is still going suffer a significant wage loss, what would you recommend to supplement that income?”
Plaintiff, a 35 year old male, underwent a kidney transplant with a donor kidney that had a large cyst. The kidney was removed 2 months later when it was discovered to be cancerous. Currently the plaintiff is on dialysis while awaiting a donor kidney. Plaintiff is seeking past and future wage loss. His medical insurance is through Medicare. Significant charges were paid by Medicare. He is also a Medicaid recipient.
TERRI: “Mike, in this case, I am much concerned about the Medicare lien. How do I address those?”
Instead of math – can you discuss creative approach?TERRI TO DAN: ” We have some preliminary conversation with plaintiff attorney. They have a broker they want to work with. They are contemplating the need of a specials needs trust. How will that effect our settlement offer.?”
TERRI: “Ask DAN and MIKE if there are any closing comments.”
TERRI: Asks audience about questions.
Transcript of "Solving the Professional Liability Puzzle with the Right Pieces"
7• $450,000 cost as of March, 2013• 30 Years Certain and Life thereafter: Company A: $1,354.38/month Company B: $1,415.38/month Company C: $1,350.93/month Company D:$1,481.92/month• Company D has best rates and is 9% better thanCompany C.Case #1: 21 year old male without Underwriting
8Case #1: 21 year old male with Underwriting• $450,000 cost as of March, 2013• 30 Years Certain and Life thereafter: Company A, Rated Standard: $1,354.38 Company B, Rated Standard: $1,415.38 Company C, Rated Age of 25: $1,377.00 Company D, Rated Age of 27: $1,508.35• Company D has best rates and is 10.2% better than Company A• 3.48% IRR
9Case #1: Key Discussion PointsComparison shoppingRated AgeImproved rate of return with Rated AgeContingenciesLow interest rate environmentInflation protectionInternal Rate of Return (IRR)/ taxable equivalent yield (TEY)
12Case #2: Medicare Set-aside (MSA)Date of InjuryMedicare LienMSASettleCase
13Case #2: Medicare Set-aside• How should we address in settlement?With WCWithout WC
14Case #2: 53-Year-Old Male with Head Injury• $200,000/year loss of incomeOption 1:$16,667/month for 12 years untilretirement age.Cost:$2,172,860Option 2:$16,667/month for 20 years Certainand Life (Rated Age 63)Cost:$3,692,424
15Case #2: Continued• 20 years certain and life; and• $8,333/month to Wife for• 20 years certain and life.• Cost: $4,001,156Option 3:$8,333/month toClaimant for life
16Case #2: Continued• $3,526.25/month for 15 years, and• $1,500,000 lump sum in 15 years• Cost: $1,500,000Option 4:Bond Approach
17Case #2: Key Discussion PointsNo medical to considerWage LossAllocation of recoveryAttorney FeesGuarantee PeriodThe “Bond Approach”Diversification / Guarantee Funds
20Case #3: Medicare LienDate of InjuryMedicare LienMSASettleCase
21Case #3: Medicare Lien• Tips for proper resolution: Obtain Medicare lien information from the source: MSRPC.INFO Get the information EARLY Share with opposing party Negotiate the terms for resolution at mediation Incorporate terms in settlement documents
22Case #3: 35-Year-Old Male, Kidney Transplant• Spend $400,000 (Rated Age 60)$1,963/month forLife OnlyOR$1,784.25/monthfor 20 YearsCertain & Life
23Case #3: Key Discussion PointsPlaintiff BrokersFunding of Special Needs Trust with StructurePreservation of Government BenefitsStrict Income and Asset RestrictionsType A Trust vs. Type C TrustExempt AssetsAllocation to Spouse