On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old woman who formerly attended the Hotchkiss School  in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU).  The case raises important issues concerning "duty" and "assumption of risk."

On March 11, 2013, the National Football League and the General Electric Co. announced that they are teaming up to create a Head Health Initiative that will provide $60 million dollars to assist leading neurologists in researching traumatic brain injuries and developing technology able to monitor these ailments.  $40 million will go towards developing imaging technologies, and the remaining $20 million will be available to others who seek to prevent, identify, and develop treatments for brain injuries.  Athletic apparel company Under Armour will also be providing $5 million dollars in support for the cause.

Jeff Immelt, GE Chairman and CEO, indicated that scientific support for the research would be top-notch.  “We’re trying to do this with the best minds anywhere in the world,” he noted in a news conference.  He declared that the funds would utilize GE’s expertise in sophisticated diagnostic imaging technology to increase general scientific knowledge on brain functions, noting “With this initiative, we will advance our research and apply our learning to sports-related concussions, brain injuries suffered by members of the military and neurodegenerative diseases such as Alzheimer’s and Parkinson’s.  Advancing brain science will help families everywhere.”

NFL commissioner Roger Goodell also expressed satisfaction with the initiative, stating: “The NFL has made tremendous progress in making the game safe and more exciting.  But we have more work to do.  Our collaboration with GE and Under Armour . . . puts us on an accelerated path to progress . . that will benefit athletes, the military, and all members of society.”

Plaintiff Susan Early was allegedly injured while a passenger on one of Carnival Corporation’s ships.  A claim was initiated, then (apparently) resolved.  The mediator in the matter filed his report on November 21, 2012.  That report stated that the parties had settled subject to the condition that the Court retain jurisdiction to enforce the terms of the settlement and determine the issue of a possible LMSA if one were needed.  Early motioned the Court for Determination of Whether a Medicare Set Aside is Required.  The terms of the settlement negotiations were:

Harvard University and the National Football League Players Association (“NFLPA”) are negotiating a deal with the NFL seeking a $100 million grant for the purpose of studying, diagnosing, and treating injuries and ailments suffered by players as a result of their football careers.

A Pennsylvania district court in CAMICO Mutual Insurance Co. v. Heffler, Radetich & Saitta, LLP (E.D. Pa. Jan. 28, 2013), refused to allow an insurer access to its insured’s defense file, holding that that the insurer was not a client of the insured’s defense counsel.  There, CAMICO Mutual Insurance Co. insured Heffler, Radetich & Saitta, L.L.P. (“Heffler”) which was sued for misappropriating class action settlement proceeds.  In response to the suit, Heffler selected its defense counsel, and CAMICO agreed to pay defense counsel’s fees.  

On October 31, 2012, lawyers representing thousands of former NFL players filed an opposition brief to the NFL’s current motion to dismiss pending in U.S. District Court in Pennsylvania, insisting that based on the gravity of the harm incurred, their lawsuit against the League must be allowed to move forward.  The brief rejected the NFL’s contention that the action was essentially a labor dispute that needed to be resolved under the league’s collective bargaining agreement.

The Plaintiffs accused the NFL of “orchestrat[ing] a disinformation campaign,” insisting that the League “knew that players were exposed to risks of severe neurological injuries yet did nothing to prevent them.”  However, the League has, time and again, publicly denied that it knew of any long-term dangers posed by concussions.  Further, the NFL insists that it did not intentionally lie to players about the potential side effects.  Instead, it stated that it delegated the decisions about players’ conditions and return-to-play decisions to individual team doctors and trainers.

At this point, U.S. District Judge Anita Brody must decide how to proceed with the extremely cumbersome litigation.  If a settlement is not reached and the case is not dismissed, it is possible that the individual cases could be returned to the multiple districts where they originated forcing the parties to proceed with separate trials.

Ex-players reply to NFL’s motion to dismiss cases

2011 Wisconsin Act 10 (“Act 10”), which was signed into law by Governor Walker in March 2011, dramatically restricted the collective bargaining rights of municipal bargaining unit employees, except police and fire employees, and required those employees to pay portions of their retirement and health insurance benefits.  

The Medicare, Medicare and SCHIP Extension Act of 2007 ("MMSEA") requires insurance companies and self-insured employers to report payments and settlements made to claimants who are Medicare-eligible.  42 U.S.C. § 1395y; 42 CFR § 411.24.   After several delays, this requirement was implemented in early 2011.  The Medicare reporting requirement only applies to claimants that are Medicare beneficiaries.  Nonetheless, because the penalties for non-reporting are severe, it may prove prudent to report the claim in all cases and allow The Center for Medicare and Medicaid Services ("CMS") to make the determination of whether the claimant is a Medicare beneficiary.  This becomes increasingly pressing considering that a claimant may become Medicare eligible during the pendency of the claim.  Consideration should be given in cases where the claimant is (1) 65 years or older; (2) on social security disability; (3) suffering from end stage renal disorder; or (4) has a reasonable expectation of becoming Medicare eligible in 6 months.  Currently, the CMS has established a schedule in which the reporting of certain claims will become mandatory.  The schedule is as follows: April 1, 2012, the reporting threshold was $50,000; on July 1, 2012 the threshold will be $25,000; on October 1, 2012 it will be $5,000; and by 2015 the threshold will drop to zero and all claims will have to be reported.

MMSEA mandates reporting requirements by which CMS recovers conditional payments from any interested parties; which includes self-insured employees or defense counsel.  The statute mandates reimbursement within 60 days of settlement or satisfaction of judgments.   Nonetheless, collection attempts by CMS within 60 days of settlement when the Medicare beneficiary disputes the reimbursement claim may be considered "irrational."  Haro v. Sebelius, 789 F. Supp. 2d 1179, 1190 (D. Ariz., 2011).

There are steep repercussions for failing to comply with the Medicare reporting requirements.  Specifically, an insurer may be fined $1,000 per day per claimant for failing to report.   The United States may also bring a private action against any and all persons or interested parties responsible for making payments.  This may result in defense counsel being liable to CMS for reimbursement.   Nonetheless, at least one court has found that Congress never expressly made attorneys responsible for Medicare reimbursements. See Haro, 789 F. Supp. at 1192.

As a result of the mandatory requirements of reporting, it has become increasingly important for defense counsel to report potential claims to CMS.   In the initial phase of the claim, plaintiff's counsel should report the potential claim to CMS.  This information should be disclosed as early as possible in order to facilitate settlement discussions and satisfactions of judgments.  Further, defense counsel should direct discovery to obtain the claimants potential Medicare eligibility; such as requesting production of the claimant's Medicare card and Medicare conditional payment letter.  Defense counsel should also (1) include Medicare indemnification language in any settlement agreement; (2) include Medicaid and Medicare as an additional payee; and (3) tender proceeds with the disclaimer that CMS will be reimbursed.   The Supreme Court of New York took the position that the plaintiffs were responsible for satisfying the Medicare lien considering that when settlement was placed on the record, plaintiff's' counsel stated that they would hold harmless and release the settling defendants from the Medicaid and Medicare liens.  Fried v. City of New York, 940 N.Y.S. 2d 795, 803 (N.Y. Sup., 2012).

Marie Giraud is currently an associate in the Boston office of Morrison Mahoney LLP. 

The release of this audio recording raises numerous issues.  Williams' career was already in serious jeopardy prior to the release of this recording, but now, he is virtually un-employable.  His rhetoric and tone exceed that which would be considered normal locker room speak, and leaves little doubt that bounties were indeed taking place.  Williams called for specific injuries to numerous San Francisco players, even suggesting players should attempt to go for the head of concussion-prone wide receiver Kyle Williams.  With the multitude of lawsuits already filed against the NFL related to concussion issues, this is pretty damning for Williams, the Saints, and the League as a whole.  It is possible, and perhaps even likely, that Commissioner Goodell could turn Williams' current indefinite suspension into a lifetime ban.  It seems as though Goodell has ample evidence to do so at this point, and he may need to take such a step to remain consistent with the NFL's present crusade in support of player safety.  

To that end, Goodell clearly has authority to discipline Williams, consistent with the NFL's Standard of Conduct: 

A recent article published on socialmediatoday.com suggests that unlike other professional industries, health care providers have been slow to engage on social media.  The article posits that the key reasons for their reluctance stem from concerns about accountability and privacy.  At its root, the issue seems to be that between the protections afforded under the Health Insurance Portability and Accountability Act (HIPAA) and more generalized notions of physician-patient confidentiality, many providers are concerned that a presence in social media threatens patient confidentiality and exposes them to expanded liability.  The article makes the point that a lack of social media presence is itself risky for health care providers, and argues that the risk of not establishing a presence subjects providers to potentially negative commentary and characterization.

The risks to physicians, hospitals and similar providers posed by interaction on social media are analogous to a large extent to those faced by lawyers, a group which in my experience has fairly enthusiastically embraced social media, and opportunities for professional on-line communication and networking.  Like physicians, lawyers are bound by client confidentiality.  We are also bound by rules of professional conduct that regulate what we are permitted to communicate about our services and our experience.  This does (or should) cause us to be cautious and deliberative when engaging social media, particularly when we do so under color of our profession and/or our firm.  Notwithstanding these restrictions, lawyers have been active in social media for many years.

On the other hand, health care providers have to be concerned about additional scrutiny that we lawyers do not.  This includes state and federal oversight associated with Medicare and Medicaid, as well as board licensure review.  Health care providers also face heightened attention and expectations of accountability when there is a bad patient outcome.  Providers may be understandably leery of engaging in yet another form of exposure and communication in which there is certainly opportunity for “bad press.”  However, as the socialmediatoday.com article suggests, media silence can be detrimental both from a financial point of view and in the arena of public opinion.  Even social media silence.