Judge: Lee W. Tsao, Case: BC70037, Date: 2023-04-27 Tentative Ruling
Case Number: BC70037 Hearing Date: April 27, 2023 Dept: C
ROMAN v. ALTA LOS
ANGELES HOSPITALS, INC., et al.
CASE NO.: BC70037
HEARING: 04/27/23
#10
TENTATIVE ORDER
Real Party in Interest, Michelle Baass, Director of
California Department of Health Care Services’ special motion to determine
Medi-Cal reimbursement is GRANTED.
Moving party to give notice.
Plaintiff Mayela Roman, by and through her Guardian ad Litem
Amador Roman (“Plaintiff”), initiated this medical malpractice action on April
2, 2018 against various defendants. By December 13, 2019, Plaintiff filed a
notice of settlement as to the entire action. Thereafter, the Court granted
Plaintiff’s petition to establish a special needs trust on January 6, 2020,
approving of the settlement in the amount of $5.9 million. Consequently, on
March 26, 2020, the remaining defendants were dismissed with prejudice from the
Complaint.
On December 2, 2022, Real Party in Interest Michelle Baass,
Director of the Department of Health Care Services (“Department”) filed a
special motion to determine Medi-Cal reimbursement, seeking reimbursement of
its lien in the reduced amount of $227,428.20 pursuant to Welfare &
Institutions Code §§ 14124.72 and 14124.76.
On February 21, 2023, Plaintiff filed her opposition papers.
On March 22, 2023, Department filed its reply papers. In response, Plaintiff filed supplemental
declarations on March 23, 2023.
On April 13, 2023, the Court granted the Department’s ex
parte application for leave to file a supplemental declaration in response to
the declarations filed on March 23, 2023. This supplemental declaration was to
be limited to issues raised within the scope of March 23, 2023 declarations.
(See April 13, 2023 Minute Order.)
On April 18, 2023, Department filed the supplemental
declaration of Brent Garbett.
Evidentiary Objections
Plaintiff objects to various portions of the supplemental
declaration of Brent Garbett on the grounds that the objected material lacks
relevance or is beyond the scope of the declarations filed by Plaintiff on
March 23, 2023.
These objections are overruled in their entirety. Plaintiff
attempts to frame the issue presented by the March 23, 2023 as whether or not
Medi-Cal will provide Plaintiff with all of her future medical needs, including
24-hour a day LVN home care. However, the March 23, 2023 declarations also
question why Medi-Cal has not provided Plaintiff with nursing care. Thus, the
supplemental declaration of Brent Garbett is relevant in explaining what
services have been provided to Plaintiff and how nursing services have not been
requested, even though Plaintiff is eligible for the Home and Community Based
Alteratives Waiver.
Discussion
Legal
Standard
As stated in Aguilera v. Loma Linda University Medical
Center (2015) 235 Cal.App.4th 821:
“In Ahlborn, the United States
Supreme Court held that in seeking reimbursement ‘the State’s assigned rights
extend only to recovery of payments for medical care.’ In response to Ahlborn,
our Legislature amended the California statutes governing claims for
reimbursements made by the Department for funds expended on behalf of injured
parties by the Medi–Cal program. Namely, from any settlement, judgment or award
obtained by an injured party, the Department is limited to recovering payments
it made for medical expenses. (§ 14124.76, subd. (a).) ‘In determining what
portion of a settlement, judgment, or award represents payment for medical
expenses, or medical care, provided on behalf of the beneficiary and as to what
the appropriate reimbursement amount to the director should be, the court shall
be guided by. . . Ahlborn. . . and other relevant statutory and case
law.’ ‘[W]hen the settlement, judgment or award does not specify what portion
thereof was for past medical expenses, an allocation must be made in the
settlement, judgment or award that indicates what portion is for past medical
expenses as distinct from other damages. The director’s recovery is limited to
that portion of the settlement that is allocated to past medical
expenses.”
(Id. at 827 (citing Arkansas Dept. of Health and
Human Services v. Ahlborn (2006) 547 U.S. 268) (other internal citations
omitted).
“The Ahlborn formula is the ratio of the settlement
to the total claim, when applied to the benefits provided by the Department.
Expressed mathematically, the Ahlborn formula calculates the
reimbursement due as the total settlement divided by the full value of the
claim, which is then multiplied by the value of benefits provided.
(Reimbursement Due = [Total Settlement ÷ Full Value of Claim] × Value of
Benefits Provided.)” (Aguilera, supra, 235 Cal.App.4th at 828.) “[F]uture
health care expenses must be excluded, as a matter of law, in applying the Ahlborn
formula to reduce the Department’s lien . . . [when] it is reasonably probable
[that] the Department will pay [the plaintiff’s] future health care expenses.”
(Aguilera, supra, 235 Cal.App.4th at pp. 831, 833
Welfare and Institutions Code § 14124.785 provides: “The
director’s recovery is limited to the amount derived from applying Section
14124.72, 14124.76, or 14124.78, whichever is less, to the total settlement,
judgment, or award amount upon resolution of all actions or claims associated
with the injury with regard to each and every defendant. All statutes of
limitations related to the recovery of the director’s lien are tolled until the
director receives notification of the resolution of all actions or claims
associated with the injury with regard to each and every defendant.” (Welf.
& Inst. Code § 14124.785.)
Merits
Here, Department asserts that, as calculated under Welfare
and Institutions Code §§ 14124.72 and 14124.76, it is entitled to a total lien
amount of $227,428.20, considering it provided benefits to Plaintiff that
totaled $309,530.42. (Motion at pp. 7-8; Valadez Decl. ¶¶ 4, 10, Exh. B.)
In opposition, Plaintiff contends that Department’s lien
amount should be further reduced to $166,022.37 because the settlement amount
here was less than the full value of the case when taking into account
Plaintiff’s future medical costs. (Opposition at pp. 2-3; Howard Decl. 10-12, Exhs.
1-3.) As a result, Plaintiff asserts that, under Ahlborn, Department’s
right to recover on its lien is limited to the amount of the settlement that
represents the payment for past medical expenses. (Opposition at pp. 4-8.)
Thus, Plaintiff reasons that because the ratio between the settlement and the
full value is 73%, Department’s lien should be reduced to 73% of its value
and then reduced by another 25% pursuant
to Welfare and Institutions Code § 14124.72(d), which amounts to $166,022.73.
(Opposition at pp. 9-10.)
In reply, Department argues that its lien amount should not
be further reduced as requested by Plaintiff because Plaintiff’s future medical
costs can be excluded from the Ahlborn formula, considering that there
is a reasonable probability that Medi-Cal will provide Plaintiff’s future
medical care. (Reply at pp. 4-10.) In this regard, Department asserts that
Plaintiff’s medical condition will not improve. (Reply at pg. 6; Garbett Decl. ¶¶
6-7; Goldie Decl. ¶¶ 19, 21.) Further,
Department asserts that Plaintiff would continue to be eligible for Medi-Cal
and that the program is operationally and financially viable to continue.
(Reply at pp. 6-8; Garbett Decl. ¶ 7; McDonald Decl. ¶¶ 6-8; Elliot Decl. ¶ 14;
Walker Decl. ¶ 23.) Moreover, it is likely that, based on Plaintiff’s life care
plan, Medi-Cal will continue to pay for Plaintiff’s medical care, except for a
couple de minimis items. (Reply at pg. 8; Elliott Decl. ¶¶ 8, 11; Clarence Decl.
¶ 15, Exh. 3.) Thus, Department reasons that Plaintiff’s future special
damages, valued at $6,644,400.00, should not be considered, and consequently,
Plaintiff’s settlement amount would exceed the case value. (Reply at pg. 8.)
Therefore, Department argues that following the Ahlborn formula would
lead to a lien amount that would violate the law. (Reply at pg. 9.)
In response to Department’s reply, Plaintiff contends that
the Court should adhere to Ahlborn formula because it is not a
reasonable probability that Department will provide her with her future medical
needs. Specifically, Plaintiff asserts that she requires 24-hour a day LVN
nursing care, and Medi-Cal has not provided such care within the last 12
months. (Howard Suppl. Decl. ¶¶ 14-18; Roman Decl. ¶¶ 5, 15-17; Motion, Howard
Decl. ¶ 10, Exh. 2.) However, based on the evidence presented by Department,
the Court does not find this argument persuasive. Department’s reply papers
acknowledge that Plaintiff requires a 24-hour a day LVN nursing care based on
her Life Care Plan, and this care is available through the HCBA Waiver.
(Garbett Decl. ¶¶ 5, 8; Exh. A.) Mr. Garbett’s declaration further indicates
that Plaintiff has been approved for the HCBA wavier as of July 24, 2020, and
the requested services would be provided as long as they were determined to be
medically necessary. (Garbett Decl. ¶ 8.) Furthermore, Mr. Garbett’s
supplemental declaration indicates that nursing services were provided to
Plaintiff during the treatment period of June 8, 2021 through December 8, 2021.
(Garbett Suppl. Decl. ¶ 6.) Thereafter, it is indicated that nursing services
were not been performed during the treatment period of December 9, 2021 through
August 17, 2022, and during a reassessment of her Plan of Treatment by her Care
Management Team, it was determined that nursing services were not needed during
the treatment period of August 18, 2022 through February 14, 2023. (Garbett
Suppl. Decl. ¶¶ 2, 9, 11.) Plaintiff has
not raised concerns regarding the lack of nursing services, and Plaintiff has
not requested authorization for such services since September 10, 2021.
(Garbett Suppl. Decl. ¶¶ 10, 12-13.) Considering Plaintiff had been offered LVN
care services in the past through Medi-Cal, it is not unimaginable that these
services would forever cease when Plaintiff’s evidence suggests that these
services are medically necessary. Instead, Department’s evidence shows that
Plaintiff has not requested LVN care services, despite them being medically
necessary, and Plaintiff’s counsel’s attempt to persuade Department into a
binding agreement to provide LVN care services is unavailing. (See Howard
Suppl. Decl. ¶ 19.) Also, the suggestion that Plaintiff would be forced into a
nursing facility by Medi-Cal is not supported by the evidence. (See Howard
Suppl. ¶ 8; Roman Decl. ¶ 9.) Therefore, it is reasonably probable that
Plaintiff’s future medical care would be paid for through Medi-Cal.
As a point of clarification, the Court notes that, in its
argument that the Ahlborn formula should not be followed, Department
contends that Plaintiff’s future medical care is $6,644,400. (Reply at pg. 8.)
However, this amount includes future damages in addition to Plaintiff’s future
medical care. As indicated in Plaintiff’s opposition, the cost of her life care
plan for future medical expenses is $4,444,368.00. (Opposition at pg. 3.)
Subtracting this amount from Plaintiff’s proposed case value, the adjusted case
value equals $3,592,877.42, which is still less than the $5.9 million
settlement amount. By dividing this settlement amount by the adjusted case
value, the ratio is 1.64. However, if the Ahlborn formula is followed,
Department’s lien amount would be greater than the value of benefits that were
conferred on Plaintiff, and this result would violate Welfare and Institutions
Code § 14124.76(a).
Consequently, in determining Department’s recovery, the
Court merely needs to adhere to Welfare and Institutions Code § 14124.785 by
applying either Sections 14124.72, 14124.76, or 14124.78. For purposes here, it
is undisputed that the value of the medical expenses is $309,530.42. (Valadez
Decl. ¶ 4; Opposition at pg. 3.) Under Welfare and Institutions Code §
14124.72(d), a 25% reduction is applied to the aforementioned amount for a
total lien amount of $232,147.82. Also, the lien is reduced further by
Department’s share of litigation costs of $4,719.62, which is “determined by
multiplying the actual litigation expenses by the ratio of the amount
reimbursed to the director as satisfaction of the director's lien, prior to
deducting reasonable attorney's fees and litigation expenses, to the full
amount of the settlement, judgment, or award.” (Welf. & Inst. Code §
14124.72(d).) Thus, the total lien that Department may recover is $232,147.82.
Accordingly, Department’s special motion to determine
Medi-Cal reimbursement is GRANTED.