As our Fort Lauderdale personal injury lawyers can explain, this could impact how we as attorneys approach settlement negotiations.

The case that kickstarted the dispute in Gallardo v. Marstiller is a tragic one. A 13-year-old girl has been left in a persistent vegetative state after she was hit by a truck while getting off a school bus. She received a settlement of $800,000 against the owner of the truck, the driver, and the school board. (The cost of catastrophic injuries like this for someone so young can easily stretch into many millions of dollars over her lifetime.)

But then, the Florida Agency for Healthcare Administration imposed a lien on her settlement money, asserting that it was entitled to seize $300,000 of the money that was set aside for past and future medical expenses. The district court in Florida ruled against the state, arguing the federal Medicaid Act barred the state from being reimbursed for past paid medical expenses from the portion of the settlement that is set aside for future medical expenses. In the summer of 2020, the U.S. Court of Appeals for the 11th Circuit reversed in favor of the state’s action.

It was appealed to the U.S. Supreme Court, which heard oral arguments in January and is expected to rule in the coming months.

This was expected to be a fairly straightforward question of statutory interpretation on what state Medicaid programs should receive from third-party litigation – but the high court was surprisingly divided. Most justices appeared to agree that where the state had paid for injuries that the beneficiary suffered, it had a right to take from the part of the settlement/damages that is apportioned to past medical expenses. The problem arises, though, when the settlement reached for past medical expenses isn’t actually enough to repay Medicaid for what it paid. So then is the state also allowed to take part of the settlement set aside for future medical expenses?

Federal statutory guidance on this is a bit confusing. For starters, Medicaid is responsible for paying medical expenses. It does not loan money so they can be reimbursed later. So for the most part, the state isn’t allowed to recover its expenses from the person who was injured. But the game changes when a third-party was responsible for the injury and thus is liable to pay for the injured person’s expenses. In that instance, the state can seek reimbursement from that third party, per 42 USC 1396k(a)(1)(A). The way that statute is worded though, it might seem to allow for collection for past payments from a future medical expense fund. However, a bit further down, the provision seems to indicate a narrower definition.

The justices focused a lot of analysis on the statutory language. Several of their initial comments seeming to suggest that the language supports the state’s view that it can collect on all medical expense payouts, whether for past or future medical expenses, up to the amount the state has paid. However, as the discussion progressed, a number of the justices seemed to be dissatisfied with the broad implications of the state’s legal interpretation. By all accounts, Sotomayor appeared firmly against the state’s position, but how the other justices will decide is still up in the air.

Although it’s understood that the state has the right to subrogation and recovery of payments it’s already made, the broader interpretation could require personal injury lawyers representing Medicaid-covered clients to negotiate for higher reimbursement of damages dedicated to all medical expense reimbursements.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources: SCOTUS Hears Arguments on Florida Medicaid Reimbursement Dispute, Jan. 21, 2022, SCOTUS Blog More Blog Entries: What if the Driver Who Hit Me Was Not Insured?, Aug. 15, 2021, Fort Lauderdale Injury Lawyer Blog

However, a recent investigation by NBC6 in Miami revealed child injuries at trampoline parks have become incredibly common. Just in the last two years in South Florida, there have reportedly been nearly 300 911 calls made regarding injuries and falls at trampoline parks. In roughly 70 of those instances, paramedics were required at the scene.

Those incidents included:

• A 4-year-old boy who suffered a sprained ankle;
• A 6-year-old girl left injured and bleeding when a larger boy jumped on top of her;
• A boy who suffered a traumatic brain injury at a Broward County trampoline park.

more

Broward personal injury attorneys who handle such cases know that these injuries are far more common than some parents think, often including broken wrists and leg fractures. Many of these facilities have proven outright dangerous, particularly for young patrons.

Dispatch records showed emergency 911 assistance was required 60 times at one location alone – in one instance twice in a single day.

Throughout these facilities, you may note prominently-posted rules indicating safety is a priority, outlining forbidden moves and grounds for removal from the facility. Typically two employees are required to supervise a given area at any given time. Yet the television journalists observed as numerous teenagers were seen doing double back flips with impunity – even though multiple flips and double bouncing are forbidden. The employees did not intervene.

The American Academy of Pediatrics published an analysis of trampoline park injuries in 2016, looking at trends in emergency department visits for those who sustained trampoline park injuries as opposed to injuries suffered as a result of home trampolines. From 2010 to 2014, they concluded that while home trampoline injuries remained stagnant, trampoline park injuries increased more than 10-fold – from 581 to 6,932. In terms of injuries, patients with trampoline park injuries skewed older compared to those injured during use of home trampolines (average 13.3 years compared to 9.5 years). The most common injuries across the board were sprains and fractures, and those at trampoline parks were more likely to involve lower extremity injuries, open fractures and spinal cord injuries. Most injuries were the result of falls, contact with other jumpers and flips.

The report indicated that just in Broward County alone, at least 12 injury lawsuits were filed against a single company – Off the Wall. Most of those injury claims allege the company was negligent for its failure to offer proper supervision. Trampoline parks often take the stance that these injuries are not their fault, but that of the jumper. Further, most parks require the parent or legal guardian of jumpers to sign a waiver of liability. Every one of these parks requires a liability waiver, and given the language in F.S. 744.301 pertaining to waivers in inherently dangerous activities, may prove an effective defense in many cases, but that does not mean parents should not at least discuss the potential for an insurance claim or litigation, as they are not 100 percent bullet-proof. A Fort Lauderdale child injury attorney can help you examine your legal options.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Trampoline Parks Linked to Hundreds of Injuries in South Florida, July 17, 2018, By Connie Fossi and Dan Krauth, NBC6

More Blog Entries:

Amateur Fireworks on the Fourth Leave Man Seriously Injured in Florida, July 5, 2018, Broward Injury Attorney Blog