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Massachusetts Subrogation Laws
Sections
State Subrogation
Made Whole Doctrine
Common Fund
Collateral Source Rules
Hospital Lien Act
Medicaid Statute
State Subrogation
YES, contractual only
Massachusetts recognizes equitable and contractual subrogation, but case law states that implied (aka equitable) subrogation should not be applied to insurance for personal injuries. This is a category that includes medical expense benefits as well as life insurance and other forms of accident insurance. This is distinguished from property insurance, which does allow for equitable subrogation. Frost v. Porter Leasing Corp., 436 N.E.2d 387 (Mass. 1982); Wolters v Am Republic Ins Co, 149 NH 599; 827 A2d 197 (2003).
Made Whole Doctrine
Unclear, conflicting case law
In a concurring opinion, the court denounced the made whole doctrine (Frost v. Porter Leasing Corp., 436 N.E.2d 387 (Mass. 1982)). Then in 1995, one case appears to hold that without evidence of duplicative recovery by the insured as a result of the specific elements of damages recovered, a carrier will not be allowed to subrogate (Blue Cross and Blue Shield of Mass., Inc., v. Trull, 1995 WL 419946 (Superior Court of Mass. 1995)).
The 1st Circuit applied Massachusetts’s law holding, the Made Whole Doctrine is merely considered a “gap filler” which comes into play when contracts fail to address the issue clearly and, which, of course, the insured may sign away the right to be made whole.
Common Fund
Not addressed specifically in medical benefits subrogation cases, but generally NO, unless agreement to the contrary
“Our traditional approach has been to prohibit recovery of attorney’s fees and expenses in a civil case in the absence of either an agreement between the parties, or a statute or rule to the contrary…” (Preferred Mut. Ins. Co. v. Gamache, 686 N.E.2d 989 (Mass. 1997))
Collateral Source Rules
Recovery will not be reduced by any insurance payments or evidence of compensation (Law v. Griffith, 930 N.E.2d 126 (Mass. 2010)).
Hospital Lien Act
- Gen. Laws ch. 111, §70A: A hospital shall have a lien for the reasonable and necessary charges of such hospital, not exceeding the amount which would be charged in a ward of such hospital
- Hospitals are not required to pay attorney’s fees
- Gen. Laws ch. 111, §70B: written notice must be mailed to all interested parties
- Gen. Laws ch. 112, §2 appears to make a policy not to balance bill a condition on getting a physician’s certificate of registration
Medicaid Statute
- Gen. Laws ch. 118E, §22(b): a benefits recipient must repay to the executive office of health and human services the total amount of medical assistance benefits provided from money allocated in the settlement/judgment for medical expenses. Where the amount allocated is not sufficient to satisfy the office’s claim, the office may recovery from any allocation for future medical expenses
- Gen. Laws ch. 118E, §22(c): if the settlement/judgment does not specify which portion is for medical expenses, there shall be a presumption that the settlement/judgment applies first to the medical expenses incurred by the claimant in an amount equal to the medical assistance benefits paid
- Gen. Laws ch. 118E, §22(j): a claimant must notify the executive office in writing within 10 days of beginning recovery proceedings
- No specific statutory or case law mentions of attorneys’ fees and reductions