Wright v. Sebelius
| Decision Date | 07 September 2011 |
| Docket Number | No. 4:11CV3055.,4:11CV3055. |
| Citation | 818 F.Supp.2d 1153 |
| Parties | Donald E. WRIGHT, Plaintiff, v. Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, and Saint Elizabeth Regional Medical Center, Inc., Defendants. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Robert W. Chapin, Jr., Lincoln, NE, for Plaintiff.
Paul D. Boeshart, U.S. Attorney's Office, Joel G. Lonowski, Morrow, Poppe Law Firm, Lincoln, NE, for Defendants.
Plaintiff Donald E. Wright is a Medicare beneficiary who was injured in a motor vehicle accident that occurred in Lincoln, Nebraska, in August 2008. On or about February 23, 2011, Wright filed a lawsuit in the District Court of Lancaster County, Nebraska, against Medicare Secondary Payer Recovery Contractor (“MSPRC”) and Saint Elizabeth Regional Medical Center, Inc., (“Saint Elizabeth”) seeking a declaratory judgment requiring MSPRC to pay Wright's medical bills from Saint Elizabeth. On April 15, 2011, Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, removed the lawsuit to this court in accordance with 28 U.S.C. § 1441 et seq. 1 (Filing 1.)
Defendant Saint Elizabeth has filed a motion (filing 8) to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for the reason that Plaintiff's complaint fails to request any affirmative relief from Saint Elizabeth, and the Secretary has filed a motion (filing 11) to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
1. Plaintiff Donald E. Wright is a Medicare beneficiary who was injured in a motor vehicle accident on August 5, 2008, allegedly as the direct and proximate result of the negligence of an underinsured motorist. (Filing 1–1, Complaint ¶ ¶ 5, 6.)
2. As a result of the motor vehicle accident, Plaintiff alleges that he has suffered multiple injuries, resulting in more than $200,000 in medical bills. ( Id. ¶ 7.)
3. Plaintiff alleges that prior to the filing of this removed action in the Lancaster County District Court on February 23, 2011, he was offered the policy limits of $100,000 from the underinsured driver's insurance carrier. ( Id. ¶ 9.)
4. Plaintiff alleges that at the time of the motor vehicle accident, Plaintiff's primary health insurance carrier was Medicare, operating through its subcontracting entity, MSPRC, for which Plaintiff pays a monthly premium of $96.50, an amount which is deducted from his social security disability payment. ( Id. ¶ 8.)
5. Defendant Saint Elizabeth Regional Medical Center, Inc., has filed a medical lien against Plaintiff in the approximate amount of $50,000, and Plaintiff contends that this filed medical lien “prevents” him from accepting the offer of the policy limits from the underinsured motorist's insurance company “because the bulk of Plaintiff's recovery will be consumed by Saint Elizabeth Regional Medical Center, Inc.'s medical lien.” ( Id. ¶ 10 (capitalization altered).)
6. Plaintiff seeks judgment from this court directing MSPRC to “pay the medical bills of Defendant Saint Elizabeth Regional Medical Center, Inc., which were incurred for the benefit of Plaintiff.” ( Id. at Prayer ¶ A (capitalization altered).)
7. A declaration has been submitted by Debra Bowman, Branch Manager for the Consortium for Financial Management and Fee for Services Operations, Medicare Operations Branch, a division of the Centers for Medicare & Medicaid Services (“CMS”). CMS is the component of the United States Department of Health & Human Services responsible for the administration of the Medicare program. Ms. Bowman is employed by CMS in the Region VIII, Denver, Colorado, regional office. (Filing 12–1, Bowman Decl. ¶¶ 1, 2.)
8. Ms. Bowman's responsibilities include supervising regional office activities that involve the Medicare secondary payer (“MSP”) statute, 42 U.S.C. § 1395y(b). Pursuant to the MSP statute, Medicare payments are conditional, and Medicare is to be reimbursed when its payments on behalf of a beneficiary have been made or can reasonably be expected to be made under an automobile or liability insurance policy. 42 U.S.C. § 1395y(b)(2). CMS employs contractors in its efforts to recover Medicare payments pursuant to the MSP statute. Among them is the Medicare Secondary Payer Recovery Contractor (“MSPRC”). (Filing 12–1, Bowman Decl. ¶¶ 3, 4.)
9. According to Ms. Bowman, her staff obtained documents from the MSPRC concerning Medicare's payments on behalf of Medicare beneficiary Donald E. Wright as the result of a motor vehicle accident on or about August 5, 2008. Included among those documents was an MSPRC letter to Donald E. Wright dated March 25, 2011. That letter, which included a Medicare Payment Summary Form, is attached to Ms. Bowman's declaration. (
10. Ms. Bowman's declaration states that claims for medical services provided to Donald E. Wright were paid for by Medicare, as shown on the Medicare Payment Summary Form. The MSPRC has preliminarily calculated Medicare payments in the amount of $36,779.38 that are subject to a claim for reimbursement. However, any claim for reimbursement by Medicare is subject to final settlement of Plaintiff's claim against a primary payer. ( Id. ¶ 6.)
11. Pursuant to the statutory authority set forth above, CMS intends to assert, at the appropriate time, its right to recover Medicare payments made on behalf of Donald E. Wright. The amount of CMS's claim for reimbursement of Medicare payments is calculated according to 42 C.F.R. § 411.37. ( Id. ¶ 7.)
12. Ms. Bowman has examined the relevant Medicare files and records and has concluded that Donald E. Wright has neither settled his claim against a primary payer nor initiated the administrative procedures available to contest a Medicare claim for reimbursement. ( Id. ¶ 8.)
Plaintiff's complaint, as it relates to Saint Elizabeth, merely states that Saint Elizabeth is a provider of health care services in Lincoln, Nebraska; Saint Elizabeth has filed a medical lien against Plaintiff for approximately $50,000; the medical lien prevents Plaintiff from accepting a $100,000 settlement offer from an insurance company on behalf of the motorist who allegedly caused Plaintiff's injuries; and the court should enter judgment against the Secretary “to pay the medical bills of Defendant SAINT ELIZABETH REGIONAL MEDICAL CENTER, INC., which were incurred for the benefit of Plaintiff, Donald E. Wright.” (Filing 1–1 at CM/ECF p. 3.)
A complaint states a plausible claim for relief if its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Here, the plaintiff is demanding that MSPRC pay the medical expenses he incurred at Saint Elizabeth following the accident. The plaintiff's complaint does not allege that Saint Elizabeth is liable for any sort of misconduct, nor does it request any type of relief as to Saint Elizabeth. Therefore, the motion to dismiss (filing 8) filed on behalf of defendant Saint Elizabeth shall be granted.
The Secretary has filed a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Filing 11.)
This court is one of limited jurisdiction where an action is presumed to lie outside the court's limited jurisdiction and “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Additionally, the United States, as sovereign, is immune from suit except to the extent that it has consented to be sued. Any terms or limitation on the government's consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). The consent must be express and unequivocal. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349.
The burden of proving subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1) falls on the plaintiff. Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990). The appropriate standard for review of a Rule 12(b)(1) motion depends on whether the motion challenges the facial sufficiency or factual truthfulness of the plaintiff's jurisdictional allegations. Osborn, 918 F.2d at 729 n. 6; see also Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir.2007.)
If the defendant brings a facial attack under Rule 12(b)(1) by arguing that under the facts alleged in the complaint, the court does not have subject-matter jurisdiction, then the court will treat the factual allegations in the complaint as true and will determine whether those allegations are sufficient to establish subject-matter jurisdiction. See Osborn, 918 F.2d at 729 n. 6. In contrast, when a defendant makes a factual attack, the court may consider matters outside of the pleadings that relate to the existence of subject-matter jurisdiction. See Osborn, 918 F.2d at 729 n. 6, 730. In doing so, “the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). The court must dismiss the action if it determines, at any time, that it lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3.)
In the present case, the government is contesting the facts surrounding whether Plaintiff has exhausted his available administrative remedies prior to commencing this suit. Thus, it is appropriate that the court consider the government's tendered factual showings, such as the Declaration of Debra Bowman described in the “Background” section above. (Filing 12–1.) Osborn, 918 F.2d at 730 (...
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