How are Medicare and Medicaid Liens Treated in an Injury Case?

Doctor Looking at an X-Ray of a PatientThere are two types of financial medical payment assistance provided by the federal and state governments.  One is Medicare, which was enacted in 1965. Medicare is a federal agency that pays medical care for elderly (usually over the age of 65), the disabled and other limited classes of medical recipients.

In contrast, Medicaid is usually a state run, but federally sponsored, program that provides financial medical assistance to low income families or individuals.

Medicare and Medicaid usually pays for medical care in the event the injured person is eligible for Medicare or Medicaid assistance and is unable to pay their medical expenses.  Medicaid and Medicare are secondary payers and will pay only after private insurance has been exhausted.

In a medical malpractice case, both Medicare and Medicaid have a statutory lien on any recovery from a jury award or a settlement with the defendant in which Medicare or Medicaid has provided payment for the injured person’s medical care.

In other words, Medicare and Medicaid will be paid back any money they have spent to provide medical care to the injured person from the injured person. They will demand under federal and state law this money to be paid back from the settlement or jury award in the medical malpractice case.

Usually the attorney representing the injured person has the legal obligation to reimburse Medicare and Medicaid for any monies they have paid for the care of the injured person. If the attorney does not pay this amount from the settlement or jury award, the attorney is personally liable for the lien.

In conclusion, the law states Medicare and Medicaid must be reimbursed for any money they have provided for the care of an injured person in a medical malpractice case.

How Do I Request Medical Records?

To review a possible medical malpractice case or nursing home injury or neglect case at Duncan Law we must have the injured person’s medical records reviewed by an expert witness.  These are usually an expert nurse and/or a physician. For a medical expert to give a thorough review of your case it is important they have the opportunity to review the medical records.

To obtain a copy of the medical records you must request the records from the medical care provider. To provide these medical records to you, your health care provider must follow government privacy laws called HIPAA.  HIPAA is the Health Insurance Portability and Accountability Act of 1996.

First, you must qualify to receive the medical records. If you are the patient requesting your medical records, you can sign a HIPAA release and receive your medical records. If you are not the patient, you must have a formal release signed by the patient or have the legal authority to obtain these records.  The legal authority is usually granted by a power of attorney document properly executed by the patient (not just a hand written note signed by the patient). If the patient is incapacitated, you may have to obtain a legal guardianship or a court order to acquire the records. If the patient has died you must be the executor of their will or be appointed administrator of their estate by the clerk of the court or a judge.

Filling Out A Document

Second, after qualifying to receive the medical records you should make a written request to the medical care provider to provide the medical records. The medical provider may have these records stored electronically offsite away from their physical location, so it may take several days to obtain these records. If the records are stored offsite, the medical care provider should provide the records to you within 10 calendar days.

If the records are available at the facility, they should be able to have a copy made for you within 24 hours of your request. Do not expect to walk into the medical facility and they make you copies while you wait.

When you request the records, the staff may ask you why do you want a copy of your medical records? First, you are not required to answer that question. It is your medical records and you do not have to answer that question. However, any time you ask for medical records, especially from a doctor’s office, it raises flags and alerts the doctor to a possible problem. The staff will usually inform the doctor or nursing home administrator of the request and they go into “defensive mode”. In the past, some medical providers have been known to illegally change the medical records to “cover up” a mistake they have made.  Be aware this could happen. If the medical records are on site, you may ask the person in charge of medical records to pull the records so that you may look at the records on site before they are copied.  Once you have reviewed the records, you may then ask for copies.  After receiving the records, review the records and determine if any changes were made. If changes were made, notify your attorney immediately and dispute this with the medical facility.

Many medical providers will “discourage” you from obtaining the medicals by charging you an outrageous price per page to “copy” these medical records. Some providers will attempt to charge you a $1.00 per page.  If you have 600 pages due to an extended hospital or nursing home stay that could become very expensive. Fortunately, in North Carolina, there is a state law that prohibits excessive copy fees.  It is North Carolina General Statute  90?411, which states:

“A health care provider may charge a reasonable fee to cover the costs incurred in searching, handling, copying, and mailing medical records to the patient or the patient’s designated representative. The maximum fee for each request shall be seventy?five cents (75 cents) per page for the first 25 pages, fifty cents (50 cents) per page for pages 26 through 100, and twenty?five cents (25 cents) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.”

Once you’ve received your medical records contact your medical malpractice attorney or nursing home injury lawyer and provide them with the records so they can be appropriately reviewed.

What is the Statute of Limitations for a Nursing Home Abuse and Neglect Case?

If you or a loved one has been injured or severely neglected in a nursing home, the timeframe to seek damages against the facility and staff is limited by law in North Carolina to three years from the last act of malpractice. In other words, you must file a lawsuit prior to the three year deadline or you are forever barred from suing the facility and staff.

It helps to understand how nursing home abuse and neglect cases are viewed by the legal system. A nursing home abuse and neglect case is considered a malpractice case. As defined by the N.C. General Statutes, malpractice arises from the performance of or failure to perform professional services. N.C. Gen. Stat. § 1-15(c) limits the timeframe to three years from the last act of malpractice. Only in extremely rare cases of nursing home abuse and neglect would the timeframe to file a lawsuit be extended to four years from the last act of malpractice.

Therefore, if you believe you or your family member has been a victim of nursing home abuse or neglect, you should seek legal advice as soon as possible. Most attorneys need six months to review the case and obtain the required expert witnesses (usually doctors and nurses) prior to filing a lawsuit.

Who Is A Medical Expert?

Expert witnesses play a vital role in the success of a case at trial. Typically, both the plaintiffs and the defendants will have expert witnesses that testify that either the standard of care was or was not violated. The outcome of a case may depend upon which expert witness the jury believes more. Therefore, having reliable and qualified expert witness that can assist the jury with the evidence is paramount to having a successful outcome at trial.

The role of an expert is to assist the jury in how they understand the evidence in the case. According to the North Carolina Rules of Evidence an expert is, “a witness who has specialized knowledge may be qualified as an expert witness, upon a showing of his specialized knowledge, skill, training, experience, or education, and may testify in the form of an opinion, if that will be helpful to the jury.” N.C.R. Evid. 702(a).

A medical expert comes in many forms. Typically, an attorney will have a medical expert that is familiar with and focuses on a particular practice of medicine. For example, a trial dealing with injuries suffered during birth would likely have an OB/GYN as the medical expert. An injury dealing with the spinal cord would have a neurosurgeon or rheumatologist. A case dealing with the neglect in a nursing home may only need a registered nurse as an expert.

When put in its simplest form, a medical expert is someone who can help the jury understand the medical side of a trial. The best experts are the best educators. Medical experts will usually explain to the jury what the standard of care or usual actions of the medical industry are. This, in turn, allows a jury to determine liability.

What is the Standard of Care?

What is the “standard of care” in a medical malpractice case in North Carolina? Many people have asked us this question at Duncan Law.

In North Carolina to be successful in a medical malpractice action, you must prove to a jury or judge that the defendant healthcare provider deviated from or violated the standard of care. This is usually done by testimony of an expert witness, usually another healthcare provider in the same specialty as the defendant healthcare provider. The North Carolina legislature has defined the standard of care in North Carolina General Statute 90-21.12. The law states:

“In any action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other healthcare, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such healthcare provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to this cause of action.”

You are probably asking what does all of this legal jargon mean?

Basically, the law states that a doctor, dentist, nurse, etc. must act within the same standards as other persons in their profession within the same or similar community at the time of the alleged medical malpractice action. In other words, a heart surgeon should practice and use the same guidelines and procedures as other heart surgeons in similar communities. As an exaggerated example, all heart surgeons do not use chain saws to open a patient’s chest. If a heart surgeon were to use a chain saw and injure the patient, then that doctor would had violated the standard of care. He should have known the use of the chainsaw was not within the standards for heart surgeons.

I have had many clients express to me that if there was a bad outcome for a medical treatment then the doctor must had made a mistake and therefore violated the standard of care. Not necessarily!

An example- sometimes patients are put under anesthesia and they never wake up and die. Did the anesthesiologist violate the standard of care by allowing the patient to die? The key question will be did the anesthesiologist do anything different under the same conditions and circumstances as another different anesthesiologist would had done? Sometimes, under no fault of anyone, patients have a reaction to the anesthesia and die. This would not necessarily be a violation of the standard of care. However, if the anesthesiologist forgot to turn on the oxygen for the patient and the patient died from lack of oxygen, then the failure to turn on the oxygen for the patient is a violation of the standard of care and the anesthesiologist probably committed medical malpractice.

We hope this helps you in understanding the requirement of deviating or violating the standard of care in North Carolina that is required for a successful medical malpractice case. If we can help you with a possible medical malpractice case that you may have contact us today.

What is Sepsis?

Sepsis, or septicemia is a potentially fatal illness that occurs when the body reacts to infection that has spread throughout the body. Sepsis is most commonly seen in the elderly or in young children, but may occur at any age.


Symptoms of sepsis usually include, but aren’t limited to: fever, increased heart rate, decreased urine output, pain in joints, confusion and low blood pressure. Sepsis may be seen in patients who have had pneumonia, urinary tract infections, ruptured appendix and meningitis. It is critical that if signs of sepsis are seen to notify the appropriate medical personnel.


The most common cause for sepsis is an infection that spreads. The body’s reaction to infection is inflammation. Usually the body will create the necessary chemicals to fight the inflammation and infection. However, in patients who become septic their entire body may become inflamed causing the body to overreact. This overreaction causes small blood clots to form throughout the body. The body works harder to break up these clots but when unable to do so the body’s organs lack the necessary oxygen and begin to fail.


Early detection of sepsis is key to survival. If identified early enough, sepsis may be treated with the use of intravenous fluids (IVs), antibiotics and removal or sanitation of the infected area and source. Without proper treatment sepsis can become severe and eventually lead to septic shock causing death.

According to the National Institute of General Medical Sciences , “every year, severe sepsis strikes about 750,000 Americans. It’s been estimated that between 28 percent and 50 percent of these people die—far more than the number of U.S. deaths from prostate cancer, breast cancer, and AIDS combined.”

If you believe a loved one has died or been seriously injured by the failure of a medical facility to properly diagnose sepsis or other illness, contact us today to see how we may be able to help.

For further information on sepsis visit:

U.S. National Library of Medicine
The Mayo Clinic