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MARC Press Release – CMS Delays Section 111 Electronic Reporting

MARC Coalition Applauds Agency’s Alert Regarding Delay in Data Exchange Deadline

FEB. 17, 2010 (WASHINGTON, DC) – The Medicare Advocacy Recovery Coalition (MARC) today applauds the Centers for Medicare and Medicaid Services CMS, for their decision to defer the reporting deadline for Section 111 MMSEA Mandatory Insurer Reporting.

“The industry has been working diligently to build in infrastructure to supply data to CMS, investing millions of dollars to ensure compliance with the data share regulation.” said Roy Franco, co-chairperson of MARC and director of risk management services for Safeway Inc.  “Unfortunately, there have been unforeseen difficulties and unanswered questions regarding the reporting process, and everyone’s ability to get the job done by April 1.”

The Alert posted by the Centers for Medicare and Medicaid Services allows testing to continue thru December 31, 2010, and only begins live reporting on January 1, 2011. “This expansion of an additional nine months will allow time for both the Agency and the industry to navigate system roadblocks and clarify open policy issues,” states Katie Fox, co-chairperson of MARC and MSP Compliance & Resolution Manager for MedInsights, Inc.  “MARC is committed to working with the Agency to ensure the reporting process is effective and to minimize the delay of benefit to the Medicare beneficiaries”

“The claims community will continue to exchange data with Medicare in a collaborative effort to improve the data reporting systems.” says Marcia Nigro, Assistant Vice President and Complex Claim Consultant for Sedgwick CMS.  “The certification and testing for the claim detail data exchange will continue thru 2010, which will benefit everyone involved.”  The MARC Coalition had written to CMS in January seeking changes to the April 1, 2010 reporting deadline, and had been working with CMS and a wide variety of stakeholders to ensure that reporting was not required until the appropriate systems were functional and in place, and until important policy guidance, including a new  “User Guide,” was issued.  MARC applauded the CMS announcement that CMS will issue this important new guidance the week of February 22.

The Medicare Advocacy Recovery Coalition (MARC) advocates for the improvement of the Medicare Secondary Payer program. The coalition has been collaborating and developing strategic alliances with Congressional leaders and government agencies to focus on broader Medicare Secondary Payer (MSP) reform. MARC member organizations are comprised of entities representing virtually every sector of interested stakeholders, including attorneys, brokers, insureds, insurers, insurance and trade associations, self-insureds and third-party administrators. For more information, please visit


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Mediating PI Cases-From the Adjustor’s Perspective

This presentation was given to the attorney-mediators on the Riverside Superior Court panel.

I believe the information in this article is beneficial for both defense and plaintiff counsel and for other mediators.


I am a professional mediator.  I began my practice about three years ago and specialize in elder abuse, medical malpractice, legal malpractice, personal injury and divorce.

My role here today is to share my insight of the typical mindset of the claims representative (check writer) during a court ordered settlement conference. 

It is my understanding that during your settlement conferences, you face challenges from the carrier representative such as arm folding, frowns or comments that “this is a waste of time.”  I will try to touch on a couple of potential obstacles and provide ways for you to work through them.

Briefly, about my experience.  I worked as a claim adjuster at 20th Century insurance company handling auto and homeowner claims.  From there, I went to CIGNA P&C and handled premises claims, D&O E&O, products liability, food borne illness and employment practices liability.

Eleven years ago, I started Davis Risk Services which is a third party administrator and independent adjusting company.  When I am not the mediator, I represent carriers across the country at settlement conferences.  The primary focus of business of DRS is medical malpractice and elder abuse.

I will make assumptions on challenges you might be experiencing based on my experience of representing carriers when I am not the mediator. 

Who are the two most important people at a mediation?  The decision makers:

  • The plaintiff
  • The person with the checkbook

Who are the two people most often ignored or overlooked at a mediation?:

  • The plaintiff
  • The person with the checkbook

When I am not the mediator, as a carrier representative, I have walked out on many mandatory settlement conferences and mediations for one reason and one reason only…I was ignored or not included.  The judge or attorney mediator would ask to speak to “the attorneys only.”  Do you have any idea how insulting that is?  I take a day off work, drive 80 miles in Southern California traffic and I’m not even “invited” to the settlement meetings.

A key to this first barrier is that you MUST engage the carrier representative.  If you begin the mediation process by only speaking with defense counsel, then your chances of not resolving the case has substantially increased.  The thought process of the adjuster when they are not addressed is that they are being left out from the “good ole boy’s network.” 

When I am not the mediator and attend a mediation for one of my carriers, I NEVER tell defense counsel how much money I have.  Counsel is there to do one job, defend their client.  I am there to do two jobs.  Look out for the interests of the insured and try to save the insurer as much money as I can.  This will only happen if the mediator treats me with respect.

During the mediation process, it is sometimes necessary to separate the plaintiff attorney from his/her client.  You should never do this on the defense side.  In fact, if the carrier representative hasn’t already done it, you might offer to speak directly with them without the defense attorney present.  I do this on a regular basis and you wouldn’t believe the horrific look on an attorney’s face when I meet with the mediator/judge without counsel.  Talk about feeling left out. 

The exception to this is that while you are not in the room, the carrier and counsel are trying to figure out how to use the adjustor’s anger to their advantage.  When you come back, you might be approached by the defense attorney to talk alone.  99% of the time the topic will revolve around the fact that the adjustor is annoyed they have to be there, is already offering more money than they planned and don’t want to be squeezed anymore.  Basically, they are playing…good cop/bad cop.  Don’t resist, play into the role, but never disengage the adjustor unless specifically instructed by defense counsel.

With every rule, there is an exception.  You will often have a new or quiet or quite frankly, an intimidated claims representative.  You need to try as best you can, as soon as you can, to determine what kind of personality the claim representative has.  If you see that they are always looking to their attorney, then you know they are uncomfortable being there, with the process or do not know enough about the case, don’t know how to negotiate or simply, they have specific marching orders. 

If you are able to determine this, change the way you speak in a private session with the defense team.  Have an empathetic/soothing tone in your voice.  DO NOT SOUND LIKE A SEASONED TRIAL ATTORNEY.  If you thought they were uncomfortable before, forget about it.  You just lost a party.  You want to make the claim representative comfortable, engaged and look to them as the most important person in that room…because without them, there will be no settlement.

On the flip side, if you come off as the seasoned trial attorney with a seasoned claim representative, then you’ve lost all credibility with them. 

There has been countless times, especially on multi-party mediations, when I am not the mediator and am representing a carrier where I do not include the mediator and go directly to the other co-defendants and then to the plaintiff.  During these times, I find myself switching hats from carrier representative to professional mediator.  I have settled ever single case when this has happened and all the mediator does is talk to the attorneys about golfing or how difficult I am being. 


Another obstacle in resolving limited jurisdiction cases or cases that fall under CCP 1775.5 is squeezing just a few more hundred (seldom thousand) dollars from the carrier.  There are some carriers that come to the court ordered mediations set in their ways that their first offer was their last and final and the mediation is just a waste of time. 

You can go through all the risks and economics you want, but you are always facing multi-billion dollar corporations vs. an individual plaintiff.  Believe me, they couldn’t care less about the economics of one of these cases.  Now, the plaintiff on the other hand has to be told of the economics as it directly effects them, not the carrier.

There are two ways to attack this.  First, you have to be verse enough with insurance lingo to explain to the plaintiff (again, not necessarily counsel) that unfortunately, the carrier does not look at them as an individual, rather as a number or a liability (I recommend everyone read this book [I have a dozen copies if anyone wants one-just email me].  It’s changed my perspective of the individual plaintiff – What is Life Worth? – The Unprecedented Effort to Compensate the Victims of 9/11 by Kenneth R. Feinberg).

Explain how the insurance process works.  When a claim is received, it is reviewed and a value is placed on the case.  Then one or several reserves are established based on the evaluation.  Unless there is new evidence to dramatically change the carrier’s evaluation, the reserve will not change and the value will not change.

You can typically determine these numbers as “insurance company” numbers, i.e., in increments of $500 or $2,500.  If the plaintiff is at $9,000 and the carrier is at $6,000, the case will settle at $7,500.  This is the psychological number for the carrier.  If the case is close to resolving for $25,000, say the plaintiff is at $30k and the carrier is at $22,500, the carrier does not want to break the psychological barrier of $25,000.  You need to let the plaintiff know this insight and prepare them for accepting $24,500-this will send the adjuster back to the office looking like a hero for saving $500.00.

Again, there are exceptions to the rule.  If you are working on a case that has a peculiar exposure such as lost earnings, publicity, true loss of consortium, then the carrier might hit or even break through that psychological number.  All this needs to be somehow communicated with the plaintiff and the carrier (not the attorney) needs to see that you understand their way of thinking.

If you have been able to establish the proper rapport with the claim representative and you are at an impasse (hundreds, not thousands), talk to the claim representative and ask them how else the case can be settled. 

Was there a PD claim?  Can money be paid on a different reserve?  Other reserves tend to be the key.  Some carriers set an indemnity reserve, PD reserve, MP reserve and an expense reserve.  Find out from the carrier if there are other open or available reserves to consider.  If there are multiple plaintiff’s and there is an agreed number with one and not the other, can the carrier pay a little more on one and have the plaintiffs work out the numbers?  There might be a higher reserve on one plaintiff vs. the other.

Double check outstanding medical bills and make sure MP is eliminated as a possible source of money.  Double check the PD, loss of use, rental and/or deductible and make sure all those were properly paid.  Chances are that something was overlooked and you can find the few hundred dollars needed for a resolution.


The insight of this article is the reason I believe my skills as a mediator separates me from the typical attorney/judge mediator.  I have worked with many carriers and settled thousands of cases on their behalf.  Knowing how a carrier thinks is advantageous to all parties in a mediation.

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Massey vs. Mercy Medical

massey v. mercy medical

Attached is the recent case decision rendered by the California Court of Appeal, Third Appellate District (Shasta) entitled Carl R. Massey v. Mercy Medical Center Redding et. al. (2009) which stands for the proposition that certain medical negligence actions involving nursing care do not require expert testimony.

The Court of Appeal in Massey ruled that expert opinion testimony was not required for a jury to resolve the question of whether the nurse’s conduct had fallen short of the reasonable standard of care, the panel reversed the trial court’s order granting the defense’s motion for nonsuit.

See attached for entire case summary.

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Judgments – D.R.S. Trading Company, Inc. v. Vaughn Barnes, DJDAR 17859 (December 23, 2009)

This matter involved an issue as to whether or not a court has power to reconsider a decision under Code of Civil Procedure Section 1008, after a judgment has been entered.  The appeals court affirmed the trial court in finding that the existence of a judgment does not preclude a court from reconsideration of a motion it is explicitly empowered to consider after judgment has been rendered.  Here, the court was asked to consider a motion pursuant to California Code of Civil Procedure Section 473 (sub. b) with regard to relief from a judgment if it was the result of a mistake.  The appeals court found that although California Code of Civil Procedure Section 1008 prohibited reconsideration of the merits of the entered judgment, it did not bar reconsideration after entry of judgment, which was authorized under section 473 (sub. b).

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Expert Testimony – Carl R Massey v. Mercy Medical Center Redding, 2009 DJDAR 17759 (December 22, 2009)

This action for negligence against a nurse and, vicariously, the hospital that employed the nurse involved a post-operative patient who sustained injury after falling from a walker.  The nurse had placed plaintiff on the walker and then left him unattended.

The appeals court concluded that the question of the nurse’s alleged negligence for the fall posed a question of common knowledge and therefore did not require expert opinion testimony.  Consequently, the appeals court reversed that part of the trial court’s judgment that concluded otherwise and that dismissed the negligence action after plaintiff made his opening statement.

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Unfair Competition – Joseph Birdsong v. Apple, Inc., 2009 DJDAR 18087 (December 30, 2009)

Plaintiff bought two of the defendant’s devices which came with headphones that produced sounds as loud as 115 decibels.  The defendant included a warning that with each device regarding permanent hearing loss occurrence if the headphones were used at a high volume.  Plaintiff filed an action against the defendant claiming that a defect existed in the device because the product posed an unreasonable risk of hearing loss to its users.  The U.S. District Court dismissed the claims for various reasons, among them that they lack standing to assert a claim under California’s Unfair Competition Law (UCL).

The U.S. Court of Appeals – 9th Circuit affirmed.  To have standing under the UCL, plaintiff must established that it has suffered an injury in fact and lost money or property as a result of the Unfair Competition.  Here, the plaintiff did not claim that it suffered or imminently would suffer hearing loss from use of  the device.  At most, plaintiff alleged that some devices have the capability of producing unsafe volumes of sound and that consumers may listen to these unsafe sound levels.  This court found that this allegation was insufficient to satisfy the injury element under the UCL.  Further this court found no merit in a hypothetical allegation of economic harm should the plaintiff argue that the risk of hearing loss reduce the value of its device.  Thus, the district court did not err in dismissing the plaintiff’s complaint.

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Unfair Competition – Manuela Zermeno v. Precis, Inc., DJDAR 17875 (December 23, 2009)

Plaintiffs appealed from the judgment entered against them in their unfair competition action after the trial court found that the pre-trial settlement of their damaged claims meant they no longer had standing to sue under the new standing requirements of Proposition 64.  On November 2, 2004, the voters approved Proposition 64, which amended the unfair competition law to state that a person has standing to sue for unfair competition only if he “has suffered injury in fact and has lost money or property as a result of [such] unfair competition” . See Business and Professions Code  Sections 17203 and 17204. 

The appeals court held that the changed standing rule was not intended to apply the cases pending when it took effect where a plaintiff had suffered actual injuries required by the new law, but settled that portion of its action before Proposition 64 took effect.  Therefore, the trial court was an error and the appeals court reversed.

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