New Hampshire Law Prevents Head Injured Victims From Pursuing Rights
Traumatic Brain Injuries can be catastrophic. The victims often suffer disabilities for the rest of their lives. The cost of medical care is often in the hundreds of thousands, even just for the first few years of care. In New Hampshire, when these costs are paid by Medicaid, injured victims may find themselves unable to make a claim against the person who caused the injuries.
Medicaid law, as it currently exists, may actually make it impossible for families to make insurance companies pay, even when the people those companies insure are clearly at fault. RSA 167:14-a, III-a reads as follows:
III-a. The commissioner of health and human services may recover the full amount of medical assistance furnished by the state if there are proceeds available for such recovery after the deduction of reasonable attorneys' fees, litigation costs, claims by other creditors, and 10 percent of the remaining net settlement amount for the recipient of medical assistance. Any balance remaining after the state has recovered the full amount due shall be available to the recipient of medical assistance. No attorneys' fees shall be deducted from the amount due the state from such award or settlement.
This statute has been interpreted to mean that the State of New Hampshire cannot waive or reduce the amount it is to be paid, no matter what the circumstances may be. In many cases, this prevents any kind of claim because the costs of pursuing a case outweighs the amount the injured person will receive. For example, if Medicaid paid $80,000.00 and the insurance policy limits are $100,000.00, it makes no sense for the injured person to try obtain that insurance money because almost all of it would be paid to fees, costs and Medicaid.
It is our hope at Burke & Eisner that we can change that interpretation. If the State could have more flexibility, Medicaid would benefit as well as injured victims. If a victim does not pursue a case in which Medicaid has a lien, Medicaid gets no reimbursement. If the law is interpreted to allow the State to waive or reduce its lien, then victims will be able to pursue insurance proceeds, and Medicaid will get a portion of its money reimbursed. This makes more sense than the current system, and benefits Medicaid, injured victims and New Hampshire taxpayers.
