On 11/27/2013 JASON CRAIG DAVIS, filed a Personal Injury - Medical Malpractice lawsuit against REGENT OF THE UNI OF CALIF. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE, MICHAEL J. RAPHAEL and DAVID SOTELO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LISA HART COLE
MICHAEL J. RAPHAEL
DAVIS JASON CRAIG
BECKER JEFFREY M.D.
REGENTS OF THE UNIVERSITY OF CALIFORNIA
SUNOVION PHARMACEUTICALS INC.
UCLA HEALTH SYSTEM NPH HOSPITAL
BECKER M.D. JEFFREY B.
THE REGENTS OF THE UNIVERITY OF CALIFORNU
SMITH MARILYN M.
LAW OFFICE OF MARILYN M. SMITH
WEISS DAVID J.
REBACK MCANDREWS KJAR WARFORD STOCKALPER
KJAR JAMES J.
WEISS DAVID J. LAW OFFICES OF
11/27/2013: COMPLAINT FOR DAMAGES 1. NEGLIGENCE - HEALTH CARE PROVIDER; ETC
1/8/2014: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL EX PARTE
3/20/2014: PROOF OF SERVICE SUMMONS
3/21/2014: PROOF OF SERVICE OF SUMMONS
4/3/2014: ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
4/7/2014: ANSWER TO COMPLAINT
2/24/2015: ORDER AND STIPULATION TO CONTINUE TRIAL FSC [AND RELATED MQTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91, 92, 93, 97)
5/29/2015: DEFENDANT'S NOTICE OF MOTION FOR SUMMARY JUDGMENT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ETC
7/22/2015: EX PARTE RULING
7/31/2015: OBJECTIONS TO EVIDENCE IN OPPOSITION TO MOTION OF DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA FOR SUMMARY JUDGMENT
7/31/2015: DECLARATION OF MARILYN M. SMITH IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND IN SUPPORT OF ALTERNATIVE REQUEST FOR CONTINUANCE TO CONDUCT F
7/31/2015: PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; ETC
8/7/2015: DEFENDANT'S REPLY SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
8/14/2015: Minute Order
8/26/2015: NOTICE OF RULING REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
9/9/2015: DEFENDANTS COUNTY OF LOS ANGELES' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF
11/5/2015: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91,92,93,97)
11/6/2015: NOTICE OF MOTION AND MOTION OF PLAINTIFF FOR ORDER COMPELLING DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA TO ATTEND DEPOSITION AND PRODUCE DOCUMENTS AND THINGS AT DEPOSITION AND FOR IMPOSITI
Request (FOR ACCOMMODATIONS BY PERSONS WITH DISABILITIES AND RESPONSE (APPLICANT WAIVES CONFIDENTIALITY OF INFORMATION CONTTAINED IN THIS REQUEST&THE SUPPORTING DECLARATNS) (RESPONSE SIGNED BY JUDGE COLE)) Filed by Attorney for PlaintiffRead MoreRead Less
Statement-Case Management Filed by Attorney for PlaintiffRead MoreRead Less
Statement-Case Management Filed by Attorney for DefendantRead MoreRead Less
Notice of Continuance Filed by Attorney for DefendantRead MoreRead Less
Statement-Case Management Filed by Attorney for DefendantRead MoreRead Less
Notice (Notice of Transfer of Action ) Filed by ClerkRead MoreRead Less
Order (ORDER TRANSFERRING CASE TO IC COURT AND VACATING ALL FUTURE DATES CALENDARED IN PERSONAL INJURY HUB ) Filed by CourtRead MoreRead Less
Points and Authorities (MEMORANDUM AND SECOND DECLARATION OF ANN C. SCHNEIDER IN REPLY TO DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIF OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEPOSITION AND PRODUCE DOCUMENTS;) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Opposition Document (TO PLAINTIFF'S MOTION TO COMPEL; ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Motion to Compel (FOR ORDER COMPELLING DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA TO ATTEND DEPOSITION AND PRODUCE DOCUMENTS AND THINGS AT DEPOSITION AND FOR IMPOSITION OF MONETARY SANCTIONS;) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Answer to Complaint (THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Proof-Service/Summons Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Proof-Service/Summons Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Summons Filed Filed by ClerkRead MoreRead Less
Summons Issued Filed by ClerkRead MoreRead Less
Ord Apptng Guardian Ad Litem (FOR JASON CRAIG DAVIS ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Application-Miscellaneous (RESUBMISSION FOR JASON CRAIG DAVIS GUARDIAN AD LITEM(COPY) ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Application-Miscellaneous (FOR JASON CRAIG DAVIS GUARDIAN AD LITEM ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Complaint Filed Filed by Attorney for PlaintiffRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC528870 Hearing Date: November 06, 2020 Dept: NCD
Case No: BC 528870
Case Name: Davis v. Regents of the University of California, et al.
MOTION FOR DETERMINATION OF MEDI-CAL LIEN
Moving Party: Plaintiff Jason Craig Davis
Responding Party: Respondent Department of Health Care Services
Order reducing Department of Health Care Services’ Medi Cal lien
SUMMARY OF FACTS:
Plaintiff Jason Davis alleges that he is a disabled adult by reason of mental illness, and that his illness interfered with his thinking and judgment, so that he at various times experienced auditory hallucinations, paranoid delusions, mania, and depression. In March of 2012, plaintiff became a patient of defendant Jeffrey Becker, M.D. Plaintiff alleges that in August of 2012 he was admitted to defendant UCLA Health Systems NPH Hospital (“NPH”), which is administered by defendant the Regents of the University of California, due to bizarre behavior and was diagnosed with psychosis NOS, and placed on a hold under Welfare & Institutions Code section 5150 for “grave disability.”
Plaintiff alleges that while hospitalized, defendant NPH changed his medication from Zyprexa to Latuda, manufactured by defendant Sunovion Pharmaceuticals, Inc. Plaintiff alleges that he was discharged from NPH despite the fact that he continued to be gravely disabled and was exhibiting bizarre behavior and experiencing hallucinations, and was released into a sober living home, without supervision as to the effects of the new medication, or for monitoring his reaction to it. Plaintiff alleges that he reported to Dr. Becker concerns about the medication, so that Dr. Becker increased the dosage, but that Dr. Becker then did not return plaintiff’s phone call reporting plaintiff still did not feel right on the medication. On August 30, 2012, plaintiff walked away from the sober living home, walked to a freeway overpass, and then fell backward on to the freeway, sustaining massive injuries, including traumatic brain injury, paralysis of part of right side, and aphasia.
The file shows that on December 20, 2020, the court entered an order on a petition for compromise of a pending action of a person with a disability, which petition had been filed on behalf of plaintiff. The order approved a settlement with defendant Dr. Becker only, in the sum of $1,000,000, and allocated the sum of $376,201 to be disbursed directly to third party Dept. of Health Care Services (Medi-Cal Lien).
Plaintiff by this motion seeks to have the court order DHS to refund what plaintiff believes is an overpayment of the DHS lien in connection with the Dr. Becker settlement. Plaintiff argues that now that the figures are known, and under applicable law, plaintiff had erroneously agreed to a DHS lien which was in excess of the sum actually allowed, that the lien should actually be set at $52,500, and that the court should order reimbursement to plaintiff of the overpayment.
Plaintiff argues that the court should determine the lien amount to be $70,000, with reduction for a share of attorney’s fees paid, calculated by taking the value of the overall claim, which the life care plan here establishes is more than $14 million, and the amount paid toward medical expenses, the $1,000,000 in settlement, and dividing them, leaving a total recovery ratio of 7 per cent. Seven percent of the $1 million settlement payment would be $70,000.
Plaintiff then argues that this figure should be further reduced by 25 percent for fees. Multiplying $70,000 by twenty five percent equals an offset of $17,500 for attorney’s fees, so that the DHS lien is reduced to $52,500, not the $376,201 approved by the court and paid to DHS.
Plaintiff relies on Welfare & Institutions Code Section 14124.76, which provides:
“(a) No settlement, judgment, or award in any action or claim by a beneficiary to recover damages for injuries, where the director has an interest, shall be deemed final or satisfied without first giving the director notice and a reasonable opportunity to perfect and to satisfy the director's lien. Recovery of the director's lien from an injured beneficiary's action or claim is limited to that portion of a settlement, judgment, or award that represents payment for medical expenses, or medical care, provided on behalf of the beneficiary. All reasonable efforts shall be made to obtain the director's advance agreement to a determination as to what portion of a settlement, judgment, or award that represents payment for medical expenses, or medical care, provided of behalf on the beneficiary. Absent the director's advance agreement as to what portion of a settlement, judgment, or award represents payment for medical expenses, or medical care, provided on behalf of the beneficiary, the matter shall be submitted to a court for decision. Either the director or the beneficiary may seek resolution of the dispute by filing a motion, which shall be subject to regular law and motion procedures. 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 the United States Supreme Court decision in Arkansas Department of Health and Human Services v. Ahlborn (2006) 547 U.S. 268 and other relevant statutory and case law.
(b) If the beneficiary has filed a third-party action or claim, the court where the action or claim was filed shall have jurisdiction over a dispute between the director and the beneficiary regarding the amount of a lien asserted pursuant to this section that is based upon an allocation of damages contained in a settlement or compromise of the third-party action or claim…. When an action is pending, the person making the motion shall pay a regular law and motion fee. Notwithstanding Section 1064 of the Code of Civil Procedure, either the beneficiary or the director may appeal the final findings, decision, or order.
(c) The court shall issue its findings, decision, or order, which shall be considered the final determination of the parties' rights and obligations with respect to the director's lien, unless the settlement is contingent on an acceptable allocation of the settlement proceeds, in which case, the court's findings, decision, or order shall be considered a tentative determination. If the beneficiary does not serve notice of a rejection of the tentative determination, which shall be based solely upon a rejection of the contingent settlement, within 30 days of the notice of entry of the court's tentative determination, subject to further consideration by the court pursuant to subdivision (d), the tentative determination shall become final. Notwithstanding Section 1064 of the Code of Civil Procedure, either the beneficiary or the director may appeal the final findings, decision, or order.
(d) If the beneficiary does not accept the tentative determination, which shall be based solely upon a rejection of the contingent settlement, any party may subsequently seek further consideration of the court's findings upon application to modify the prior findings, decision, or order based on new or different facts or circumstances. The application shall include an affidavit showing what application was made before, when, and to what judge, what order or decision was made, and what new or different facts or circumstances, including a different settlement, are claimed to exist. Upon further consideration, the court may modify the allocation in the interest of fairness and for good cause.”
The United States Supreme Court in Arkansas Department of Health and Human Services v. Ahlborn (2006) 547 U.S. 263, found that the statutory lien provisions then existing in the state of Arkansas did not comply with federal law to the extent they permitted the State to place a lien on or force assignment of a personal injury settlement other than as limited to payments for medical care. In that case, the parties had stipulated that the settlement sum amounted to approximately one-sixth of the reasonable value of the claim, and that if the lien were limited to past medical expenses, the Arkansas Department of Health Services would be entitled to $35,581.47 of the $215,645.30 paid to medical providers on plaintiff’s behalf.
California has codified this holding, as set forth above, in Welfare & Institutions Code § 14124.76 (a).
The formula stipulated to by the parties in Ahlborn is the formula plaintiff argues should be applied here, which it has been observed has been adopted by numerous courts when there is no agreed upon allocation;
“Settlements, however, are often not allocated between past medical expenses and other damages. This was the situation in Ahlborn. (Ahlborn, supra, 547 U.S. at p. 274, 126 S.Ct. 1752.) Thus, the parties in Ahlborn stipulated to the use of a formula (the Ahlborn formula) as an allocation method. (Id. at p. 281, fn. 10, 126 S.Ct. 1752.) Numerous courts have since accepted the Ahlborn formula as an acceptable method of approximating the amount of medical expenses. ( *828 Lopez v. Daimler Chrysler Corp. (2009) 179 Cal.App.4th 1373, 1378, 102 Cal.Rptr.3d 285 (Lopez ); Lima v. Vouis (2009) 174 Cal.App.4th 242, 260, 94 Cal.Rptr.3d 183 (Lima ); Bolanos, supra, 169 Cal.App.4th at p. 748, 87 Cal.Rptr.3d 174; see also, In re E.B. (2012) 229 W.Va. 435, 461, 729 S.E.2d 270; Idaho Dep't of Health & Welfare v. Hudelson (2008) 146 Idaho 439, 446, 196 P.3d 905; Lugo v. Beth Israel Med. Ctr. (N.Y.Sup.Ct.2006) 13 Misc.3d 681, 687–688, 819 N.Y.S.2d 892.) The Ahlborn formula is the ratio of the settlement to the total claim, when applied to the benefits provided by the Department. (Bolanos, supra, 169 Cal.App.4th at p. 753, 87 Cal.Rptr.3d 174.) 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] x Value of Benefits Provided.)
Aguilera v. Loma Linda University Medical Center (2015) 235 Cal.App.4th 821, 827-828.
Plaintiff indicates that it has conducted this calculation, as set forth above, by taking the value of the overall claim, which the life care plan here establishes is more than $14 million, and the amount paid toward medical expenses, the $1,000,000 in settlement, and dividing them, leaving a total recovery ratio of 7 per cent. Seven percent of the $1 million settlement payment would be $70,000.
Plaintiff also has reduced from the total 25% to account for attorney’s fees, in reliance on Welfare & Institutions Code § 14124.72, which provides, with respect to third party liability:
(c) When an action or claim is brought by persons entitled to bring such actions or assert such claims against a third party who may be liable for causing the death of a beneficiary, any settlement, judgment or award obtained is subject to the director's right to recover from that party the reasonable value of the benefits provided to the beneficiary under the Medi-Cal program, as provided in subdivision (d).
(d) The director's claim for reimbursement of the benefits provided to the beneficiary shall be limited to the amount of the director's lien, as defined in subdivision (d) of Section 14124.70. If the action or claim is brought by the beneficiary alone and the beneficiary incurs a personal liability to pay attorney's fees and costs of litigation, the amount of the director's lien that is reimbursed shall be reduced by 25 percent, which represents the director's reasonable share of attorney's fees paid by the beneficiary, and that portion of the cost of litigation expenses 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.”
DHS argues in opposition that it is entitled to reimbursement for expenses, and that this required application of three statutes. Welfare & Institutions Code Section 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.”
DHS indicates that application of Section 14124.72 would exceed application of the other two statutes, so should not be utilized here. There does not appear to be any dispute about that here. The DHS calculation would be $757,634.49, which would be more than the total calculated and sought to be preserved under the DHS analysis.
DHS argues that the appropriate statute to be applied is Section 14124.78, which limits the recovery of the DHS to one half of the amount of settlement obtained by the Medi-Cal beneficiary after deducting attorney’s fees and litigation costs.
Section 14124.78 provides:
“Notwithstanding any other provision of law, in no event shall the director recover more than the beneficiary recovers after deducting, from the settlement judgment, or award, attorney's fees and litigation costs paid for by the beneficiary. If the director's recovery is determined under this section, the reductions in subdivision (d) of Section 14124.72 shall not apply.”
Applying this calculation, DHS argues that the total settlement was for $1,000,000, and deducting the attorney’s fees paid by the beneficiary and approved of $216,213.00 and the costs paid and approved of $36,346, the sum remaining is $747,411.00. Dividing that sum in two, because DHS may not recover more than plaintiff, results in a lien recovery of $373,720.50. Evidently, although Davis paid Medi Cal $376,201.25, DHS refunded $2,480.75, for a total of $373,720.50 which has been paid to Medi Cal and which DHS argues is the proper amount it is entitled to retain.
The opposition argues that this case is distinguishable from Ahlborn, as here the DHS did not agree in advance to any allocation, and that even when a Ahlborn-like analysis may be applied, it must be calculated pursuant to the holding in Aguilera that for purposes of apportioning a DHS lien for prior medical expenses, it is inequitable for a Medi-Cal beneficiary to use the estimated value of his future health care expenses that he will be paid by Medi-Cal to reduce the lien:
“future health care expenses must be excluded, as a matter of law, in applying the Ahlborn formula to reduce the Department's lien, because if future health care expenses were to be included, the Department would be forced to accept a lower percentage of its total lien based on the amount of future benefits that will be paid by Medi–Cal. However,…excluding such expenses is contingent on the Department presenting sufficient evidence that it will in fact pay Ashlynn's expenses as long as she qualifies for the benefits that she is presently receiving.”
Aguilera, at 831-832.
Such factor may be established by a factual showing, as follows:
“Any declarations must establish the declarant's expertise in Medi–Cal benefits, funding and eligbility determinations. (Evid.Code, § 720.) The declarations must also be supported with citations to applicable statutes or regulations regarding current Medi–Cal eligibility, the type of health care currently available under Medi–Cal, past funding to pay for such health care, and estimated future funding to pay for the type of health care at issue. Based on the evidence provided, the trial court must make a determination whether it is reasonably probable the Department will pay Ashlynn's future health care expenses. If the trial court makes such a finding, it is directed to exclude these expenses from its Ahlborn
Aguilera, at 833.
DHS submits evidence concerning this issue, and detailed declarations establishing expertise, citations to statutes and regulations and provide information regarding what future expenses it is reasonably probable that Medi-Cal will pay. [McDonald Decl., paras. 7, 8; Attarian Decl., para. 4-12; Sanchez Decl., paras. 4, 5, 7-11, 13, 14].
The declarations establish that it is reasonably probable that Medi-Cal will pay future expenses, and that all expenses in the care plan will be covered except for certain services approximating $33,094.27. [See Sanchez Decl., paras 7-11, 14].
DHS then argues that this leaves total adjusted damages of general damages of $250,000, the reasonable value of past medicals (gross lien) in the sum of $1,058,640.65, projected future medicals not covered by Medi-Cal of $33,094.27, which totals $1,341,734.92. The ratio of Davis’s present third party recovery to his uncovered future damages ($1,000,000/$1,341,734.92) would be 74.5%. Multiplying the amount of Medi-Cal services provided to plaintiff as of July 2, 2018, $1,058,640.65 by 74.5% results in a lien of $788,687.28, which, even adding an additional 25% reduction for attorney’s fees and $36,346 in costs another approximately $200,000, would exceed the sum under the DHS formula.
It accordingly appears that DHS has sufficiently established that the appropriate determination of the amount of the lien is the one conducted under Welfare & Institutions Code section 14124.78, in the sum of $373,720.50, which is what has been paid by plaintiff. The court determines that the Medi-Cal lien should be in that amount, and no further reimbursement required.
The matter is also on calendar for a hearing on a motion for approval of compromise of claim by disabled person and a petition to confirm a minor’s compromise. No moving papers have evidently yet been filed. It would appear that there may be some intention to eventually petition for approval of a settlement with defendant Regents of the University of California for $500,000.
Since there are no moving papers, those matters will be taken off calendar.
Plaintiff’s Motion for Reimbursement Determination Relating to Department of Health Care is DENIED. The Court finds that the Department of Health Services has sufficiently established by appropriate evidence that it is reasonably probable the Department will pay plaintiff’s future health care expenses as outlined in the life care plan, and that future health care costs would be reduced by a sufficient sum to establish that an Ahlborn analysis under Welfare & Institutions Code section 14124.76 in this case would result in a lien which would exceed the amount of a lien calculated under Welfare & Institutions Code section 14124.78. The Court finds that the Department has sufficiently established that the appropriate determination of the amount of the lien is the one conducted under Welfare & Institutions Code section 14124.78, in the sum of $373,720.50, which is what has been paid by plaintiff. The determines the Medi-Cal lien should be in that amount, and the motion for reimbursement is accordingly denied.
Remaining matters on calendar this date will not be heard. No moving papers have been filed.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.