KATHY A. NETRO, Personal Representative of the Estate of Barbara Bromwell, Deceased, Plaintiff - Appellant,
GREATER BALTIMORE MEDICAL CENTER, INC., Defendant-Appellee.
Argued: March 22, 2018
from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District
Somerville Tolley, III, DUGAN BABIJ & TOLLEY, LLC,
Timonium, Maryland, for Appellant. Christina Nicole Billiet,
WARANCH & BROWN, LLC, Lutherville, Maryland, for
M. Brown, WARANCH & BROWN, LLC, Lutherville, Maryland,
WILKINSON, TRAXLER, Circuit Judges, and Leonie M. BRINKEMA,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
WILKINSON, CIRCUIT JUDGE
Netro brought a medical malpractice suit in state court
against the Greater Baltimore Medical Center for its
negligent care of her now-deceased mother. When she won, GBMC
became liable under federal law for payments Medicare had
made for Netro's mother's treatment. GBMC did not
immediately satisfy the judgment. And three weeks after the
state court entered its final order, Netro brought this suit
to recover solely the funds owed to Medicare and to collect
for herself under the Medicare Secondary Payer Act, 42 U.S.C.
§ 1395y, which authorizes a private cause of action for
double damages where a recalcitrant payer "fails"
to reimburse Medicare. But before the litigation went very
far, GBMC paid Netro the state court judgment, which included
the full amount owed to Medicare. This series of events
brings us to the straightforward question in this case: Did
GBMC "fail" to pay the funds owed to Medicare? The
district court said no, and we agree.
1980, Congress enacted the Medicare Secondary Payer Act to
address ballooning medical entitlement costs. Before the
legislation went into effect, Medicare would pay for all
medical treatment within its ambit, even if a private party
such as an insurer was also responsible. The MSP Act
"inverted that system" and made Medicare "an
entitlement of last resort, available only if no private
[party] was liable." Humana Med. Plan, Inc. v. W.
Heritage Ins. Co., 832 F.3d 1229, 1234 (11th Cir. 2016).
designed this new arrangement with an important caveat. Where
a private party responsible for medical costs does not or
cannot promptly meet its obligations, Medicare may pay up
front, so long as the responsible party eventually reimburses
the government. See 42 U.S.C. § 1395y(b)(2)(B).
Congress later added two tools to ensure that so-called
"primary plans" would compensate Medicare for these
"conditional payments": a direct government action
against the responsible party, and a private enforcement
U.S.C. § 1395y(b)(3)(A) provides that "[t]here is
established a private cause of action for damages (which
shall be in an amount double the amount otherwise provided)
in the case of a primary plan which fails to provide for
primary payment (or appropriate reimbursement) . . . ."
Legislative history is scant, but "[c]ourts considering
the provision have generally agreed that the apparent purpose
of the statute is to help the government recover conditional
payments from insurers or other primary payers."
Stalley v. Catholic Health Initiatives, 509
F.3d 517, 524 (8th Cir. 2007) (collecting authorities).
The thinking behind the statute is apparently that (1) the
beneficiary can be expected to be more aware than the
government of whether other entities may be responsible to
pay his expenses; (2) without the double damages, the
beneficiary might not be motivated to take arms against a
recalcitrant insurer because Medicare may have already paid
the expenses and the beneficiary would have nothing to gain
by pursuing the primary payer; and (3) with the private right
of action and the double damages, the beneficiary can pay
back the government for its outlay and still have money left
over to reward him for his efforts.
Id. at 524-25.
June 2011, GBMC performed hip replacement surgery on Barbara
Bromwell. After the surgery, she suffered complications that
resulted in partial paralysis. Bromwell died two years later.
Her daughter, Kathy Netro, was named personal representative
of Bromwell's estate.
filed a medical malpractice suit against GBMC in Maryland
state court. After a trial on the merits, a jury found GBMC
liable for $451, 956 in damages on July 22, 2016. That figure
included compensation for $157, 730.75 in "conditional
payments" made by Medicare for Bromwell's treatment.
Netro was obligated to pass along that portion of the state
court judgment to Medicare.
after the jury verdict, GBMC filed a post-trial motion
seeking to reduce the amount of the initial judgment to more
accurately reflect the medical expenses actually paid, rather
than the amount billed, for Bromwell's care. While the
state court considered the motion, GBMC began making
arrangements to pay Netro. It requested a Tax Identification
Number for Bromwell's estate, but the parties disagreed
about whether that information was necessary to make the
payment. The state court granted GBMC's motion and
entered a final judgment of $389, 014.30 on October 31, 2016.
three weeks later, on November 21, Netro brought this suit in
the United States District Court for the District of
Maryland. Alleging that GBMC refused to pay the state court
judgment, Netro invoked the private cause of action laid out
in the MSP Act.
days after Netro filed the federal suit, GBMC paid her $403,
722.24, which represented the amended final judgment amount
plus post-judgment interest. GBMC then filed a motion arguing
that the district court should dismiss Netro's suit for
lack of standing, or, in the alternative, grant GBMC summary
judgment because it did not "fail" to provide
reimbursement for Medicare.
addressing the standing argument, the district court granted
GBMC's motion for summary judgment on the merits. See
Netro v. Greater Baltimore Med. Ctr. Inc., No. CV
GLR-16-3769, 2017 WL 5635446, at *4 (D. Md. Apr. 13, 2017).
It reasoned that the statute did not require GBMC to pay
Netro or reimburse Medicare immediately after the state
court's final judgment, and that GBMC's December 7
payment had satisfied its obligations under the MSP Act.
appeal followed. We "review legal questions regarding
standing de novo." David v. Alphin, 704 F.3d
327, 333 (4th Cir. 2013). We also "review a district
court's decision to grant summary judgment de novo,
applying the same legal standards as the district court, and
viewing all reasonable inferences drawn from the evidence in
the light that is most favorable to the non-moving
party." Heyer v. U.S. Bureau of Prisons, 849
F.3d 202, 208-09 (4th Cir. 2017).
first consider whether Netro had Article III standing to
bring this suit. "A plaintiff invoking federal
jurisdiction bears the burden of establishing the
'irreducible constitutional minimum' of standing by
demonstrating (1) an injury in fact, (2) fairly traceable to
the challenged conduct of the defendant, and (3) likely to be
redressed by a favorable judicial decision." Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1543-44 (2016). GBMC
argues that Netro lacked standing because the money she
sought to recover was owed to the government, and not to her.
In other words, GBMC contends Netro was not injured.
believe, to the contrary, that Netro suffered a ...