In  Aldona Wos, Secretary of North Carolina Department of Health and Human Services v. E.M.A., a minor, by and through her guardian ad litem, Johnson, et al. (decided March 20, 2013) the United States Supreme Court held that a North Carolina statute creating an irrebuttable presumption that the State is entitled to 1/3 of injury settlements received by Medicaid recipients was pre-empted by the federal Medicaid statute.  In that case, a child was born with multiple birth injuries that require her to receive 12-18 hours of skilled nursing care daily.  North Carolina Medicaid pays part of the cost of the ongoing care.

State Used Arbitrary 1/3 Allocation

When a settlement was reached in a medical malpractice case, the State claimed that it was entitled to 1/3 of the settlement without any determination of what portion of the settlement was allocated to payment of medical expenses under a North Carolina statute.  The Supreme Court held that this law ran afoul of a provision in the Medicaid law that allowed a state to recover a portion of a recovery that represents payments for medical care, but prohibits attachments or encumbrances on the rest of the recovery.  It is anticipated that the North Carolina General Assembly will revise the statute to provide a means for determining the amount to be allocated to medical expenses and subject to lien by the state.

Ongoing War Against Injury Victims

This is a small victory in an ongoing war by the North Carolina legislature against the rights of injured people.  Under the guise of tort reform, the General Assembly has been making it more difficult for injured citizens to recover compensation for their injuries and easier for insurance companies and corporations to avoid liability for their wrongful acts and the acts of their representatives and insureds.  These laws have included provisions placing an arbitrary limit on the amount that a person permanently injured with constant pain and even paralysis can recover, no matter how young the victim is, and a law creating a confusing and costly procedure for introducing medical bills into evidence at trial.

Mike McConnell and I successfully represented on appeal a developer being sued by a Homeowners’ Association.  The case, The Glens of Ironduff v. Daly,  was decided today by the North Carolina Court of Appeals and upheld the summary judgment we obtained in favor of the developer.

In the case, the Association sued the developer for damage to a subdivision road.  Although the road had been inspected by a professional engineer, the Association contended that it was located too close to a stream and that erosion by the stream had caused a portion of the shoulder to fall into the stream.  The developer raised the statute of repose as a defense, arguing that the road was completed many years ago and the Association had not raised its claim within the statute of repose.

The Association argued that although the road had been completed for a number of years, the developer had later paved the road and that action had extended the deadline for filing the suit.  The Court of Appeals ruled that the deadline was correctly calculated from the date the road became usable for traffic and the subsequent paving did not extend the time for suing the developer.