Can I apply the "Make Whole Doctrine" to a health insurance company for reimbursement of their lien?

Asked about 1 year ago - Los Angeles, CA

This is a third party case.

Attorney answers (13)

  1. Briny Adam Woods

    Contributor Level 12

    21

    Lawyers agree

    1

    Answered . It really depends on the specifics of your case. Some health insurance carriers attempt to contract around the Made Whole Doctrine, but they don't always do it right. Also, Self Funded ERISA plans can be very strict and typically do not need to abide by Made Whole. Speak with an attorney.

  2. Richard Marc Katz

    Pro

    Contributor Level 17

    21

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    Answered . This is a very interesting question and is far from a simple answer. I would recommend that you contact an attorney conversant in this area of the law for a consultation.

    The basic answer is California does recognize "made whole doctrine." But it is rife with exceptions. For instance if the medical coverage is through an ERISA program the "made whole doctrine" may or may not apply depending upon recent Federal Court decisions. Also some self-funded medical care plans are contractually exempt from the "made whole doctrine." I have dealt with these issues on many cases and I can tell you that it is very aggravating.

    With that said most health insurance carriers will offer reductions or compromise if a settlement is minimal and the injuries are significant.

    Yes not given enough information with regard to the nature and extent of your injuries, the medical expenses and your recovery.

    I have had cases where there is a minimal policy very high medical expenses with very significant injuries and have had reimbursement liens waived in their entirety. Frankly this usually takes hours of work.

    You should consult with an attorney. Most attorneys will give you at least an initial telephone consultation for free.

    I wish you the best of luck

    The information provided is for general informational purposes only and is not intended to be legal advice. I am... more
  3. Robert Max Klein

    Pro

    Contributor Level 15

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    Answered . The make whole doctrine is a difficult issue. So many factors come into play, including, but not necessarily limited to: plaintiff's age, whether or not plaintiff is Medicare or Medi-cal eligible; the amout of settlment; is there an Undersinurance claim; the need for and potential cost of future treatment; the type of health coverage, i.e. is it a private plan or through work? Is the plan an ERISA plan and if so does the carrier negotiate? Finally, does the plaintiff have representation? If so, the amount of attorney's fees and any costs. If you do google search for: "reducing medical lien for made whole" you will find articles to read that will provide additional assistance.

  4. Alan Ray Barnes

    Contributor Level 19

    18

    Lawyers agree

    Answered . It's complicated. You can ask for a waiver of reimbursement rights based on the "made whole" doctrine, but a full analysis of the issue is going to require some legal expertise.

  5. Robert Bruce Kopelson

    Contributor Level 20

    17

    Lawyers agree

    Answered . You have to read the actual plan document that was in effect at time of the accident. Get a copy and see if the made whole rule is waived effectively in the plan. If it is, you are out of luck. If not waived, you can make the argument. Consult an atty. If argument is available, you have to know how to make it, and if it is waived, there may be other avenues available to get a reduction.

  6. Lars A. Lundeen

    Pro

    Contributor Level 20

    18

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    Answered . Perhaps, depending upon the lien law in your State and also whether or not you are dealing with a private insurance carrier or an ERISA employer plan. You need to take your medical insurance contract documents, proof of the amount of insurance held by the tortfeasor and some evidence to show that the tortfeasor's limit, even though paid to you, does not satisfy the claim to a competent attorney to review the situation.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    This ans. does not create an attorney/client relationship.
  7. Michael David Myers

    Pro

    Contributor Level 17

    16

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    Answered . Depends whether it is self-funded ERISA.

  8. Christian K. Lassen II

    Pro

    Contributor Level 20

    14

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    Answered . It's complex, so have a local lawyer investigate

  9. Michael R Crosner

    Contributor Level 20

    10

    Lawyers agree

    Answered . In California claims - it is complex & requires the assistance of an attorney experienced in this doctrine.

    This is not intended to be legal advise or as legal representation. I am a California personal injury attorney .... more
  10. Maryam Parman

    Pro

    Contributor Level 15

    10

    Lawyers agree

    Answered . It would be in your best interest to give it a shot. Check your plan language to see if there is specific language that allows them to recover. This is a tricky area in law so it would be in your best interest to contact an attorney to get more information.

    Pursuant to the “made whole rule” as stated by the court in Sapiano v. Williamsburg Nat. Ins Co., (1994) 28 Cal. App. 4th 533 [33 Cal. Rptr.2d 659], an insurer is not allowed to recover any reimbursement or file a lien for medical reimbursement unless the insured is made whole from the settlement funds.

    Furthermore, the Sapiano court ruled that in order for a plan to have priority lien rights before the insured is made whole, the plan must have “specific language” to be exempt from the “made whole rule”. The court also stated that general language such as “subrogated” or “transferred” is not sufficient or specific language. The clause must specifically address the issue of the “made whole rule” and state that the insurer has priority rights regardless of the amount recovered and regardless of the insured being made whole. Id. at 533.

  11. Lynn Margaret Sherrell

    Contributor Level 2

    8

    Lawyers agree

    Answered . It depends. Some health insurance companies such as Kaiser Permanente Medical are goverend bunder provisions of the Civil Code which limit the amount they can collect from the third party settlment. The limit does not take the "made whole rule" into account.

  12. Gerald R Stahl

    Pro

    Contributor Level 16

    5

    Lawyers agree

    Answered . Mr. Katz and Mr. Klein laid out the answer nicely. Good Luck!

  13. James Edward Butler III

    Contributor Level 4

    3

    Lawyers agree

    Answered . This is question without a simple answer. It depends on lots of factors--including whether state or federal law applies, and what language your Plan includes. Many private health insurance plans are covered by a federal statute called ERISA, and if the plan language provides for it, ERISA-governed plans are often not subject to the made-whole doctrine. However, if the Plan does not expressly disclaim the made-whole doctrine, then it may apply as a matter of federal common law. Moreover, if the plan is not subject to ERISA--if, for instance, the Plan is not private but is "governmental"--then state rather than federal law may apply. Some states have made the made-whole doctrine part of the state's official code, which can strengthen your bargaining position.

    The summary is this: it's really complicated and depends on a variety of factors. The wise course is to consult with a good lawyer in your state.

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