Bill Text: CA SB1528 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Medical services: damages.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2012-09-01 - From Assembly without further action. [SB1528 Detail]

Download: California-2011-SB1528-Amended.html

---

BILL NUMBER: SB 1528	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  AUGUST 24, 2012
	AMENDED IN ASSEMBLY  JUNE 27, 2012
	AMENDED IN SENATE  MAY 15, 2012
	AMENDED IN SENATE  APRIL 30, 2012

INTRODUCED BY   Senator Steinberg

                        FEBRUARY 24, 2012

   An act to add Section 3284 to the Civil Code,   and
 to amend Sections 23004.1 and 23004.2 of the Government
Code,   and to amend Section 14124.70 of the Welfare and
Institutions Code,   relating to  health  
medical  services.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1528, as amended, Steinberg.  Health services.
  Medical services: damages. 
   Existing law establishes, as a general rule, that compensation is
the relief or remedy provided by law for a violation of private
rights. Existing law provides that a person suffering detriment from
the unlawful act or omission of another may recover damages from the
person at fault. 
   This bill would express the intent of the Legislature to establish
a framework for compensating persons with injuries due to the fault
of 3rd parties. The bill would also specify that when a person is
compensated for an injury due to the fault of another, the lien
rights and other rights of the parties provided in specified
provisions shall be maintained.  
   Existing law provides for the Medi-Cal program, which is
administered by the State Department of Health Care Services, under
which qualified low-income individuals receive health care services.
The Medi-Cal program is, in part, governed and funded by federal
Medicaid Program provisions. Under existing law, when benefits are
provided or will be provided to a Medi-Cal beneficiary for which
another person or insurer is liable, the Director of Health Care
Services may recover from that person or insurer the reasonable value
of benefits provided, as defined and as prescribed.  
   This bill would provide that an injured person whose health care
is provided through a public or private capitated health care service
plan shall be entitled to recover as damages the reasonable and
necessary value of medical services. This bill would provide that a
Medi-Cal beneficiary shall be entitled to recover from the person or
party responsible the reasonable and necessary value of medical
services. 
   Existing law provides procedures under which, in any case in which
a 3rd person is liable to pay for health services provided by a
county to an injured or diseased person, the county may recover from
that 3rd person or be subrogated to any right or claim that the
injured or diseased person, including identified parties in interest,
have against that 3rd person. Under these procedures, the county's
right of action abates during the pendency of an action brought for
damages against the 3rd person by the injured or diseased person and
continues as a first lien against any judgment recovered by the
injured or diseased person.
   This bill would provide that the county's right of action would
continue under this provision as a first lien against any judgment,
settlement, compromise, arbitration award, mediation settlement, or
other recovery for past medical expenses obtained by the injured or
diseased person. The bill would make that lien subject to any liens
for attorney's fees and costs incurred by the person or person's
representative, estate, or survivors.
   Existing law authorizes a county to compromise, or settle and
execute a release of, any claim, as provided. Existing law also
authorizes a county to waive that claim, as provided.
   This bill would require specified factors to be considered when a
county is requested to compromise or waive any claim, as provided.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3284 is added to the Civil Code, to read:

   3284.  (a) It is the intent of the Legislature to establish a
framework for compensating persons with injuries due to the fault of
third parties.
   (b) When a person is compensated for an injury due to the fault of
another, the lien rights provided for in Sections 3040 and 3045.1 of
this code and the rights of the parties under Section 3333.1 of this
code or of public entities under Section 985 of the Government Code
shall be maintained. 
    3284.    An injured person whose health care is
provided through a public or private capitated health care service
plan shall be entitled to recover as damages the reasonable and
necessary value of medical services. 
  SEC. 2.  Section 23004.1 of the Government Code is amended to read:

   23004.1.  (a) Subject to Section 23004.3, in any case in which the
county is authorized or required by law to furnish hospital,
medical, surgical, or dental care and treatment, including prostheses
and medical appliances, to a person who is injured or suffers a
disease, under circumstances creating a tort liability upon some
third person to pay damages therefor, the county shall have a right
to recover from that third person the reasonable value of the care
and treatment so furnished or to be furnished, or shall, as to this
right, be subrogated to any right or claim that the injured or
diseased person, his or her guardian, personal representative,
estate, or survivors has against that third person to the extent of
the reasonable value of the care and treatment so furnished or to be
furnished.
   (b) The county may, to enforce rights established under
subdivision (a), institute and prosecute legal proceedings against
the third person who is liable for the injury or disease in the
appropriate court, either in its own name or in the name of the
injured person, his  or her  guardian, personal
representative, estate, or survivors. This action shall be commenced
within the period prescribed in Section 340 of the Code of Civil
Procedure. In the event that the injured person, his or her guardian,
personal representative, estate, survivors, or any of them brings an
action for damages against the third person who is liable for the
injury or disease, the county's right of action shall abate during
the pendency of that action, and continue as a first lien against any
judgment, settlement, compromise, arbitration award, mediation
settlement, or other recovery for past medical expenses obtained by
the injured or diseased person, his or her guardian, personal
representative, estate, or survivors, against the third person who is
liable for the injury or disease, to the extent of the reasonable
value of the care and treatment so furnished or to be furnished.
Consistent with the common fund doctrine, the lien  is
  shall be  subject to any liens for attorney's
fees and costs incurred by the person or person's representative,
estate, or survivors. If the third person who is liable is insured,
the county shall notify the third person's insurer, when known to the
county, in writing of the lien within 30 days following the filing
of the action by the injured or diseased person, his or her guardian,
personal representative, estate, or survivors, against the third
person who is liable for the injury or disease. However, the failure
to so notify the insurer shall not prejudice the claim or cause of
action of the injured or diseased person, his or her guardian,
personal representative, estate, or survivors, or the county.
  SEC. 3.  Section 23004.2 of the Government Code is amended to read:

   23004.2.  (a) The county may (1) compromise, or settle and execute
a release of, any claim which the county has by virtue of the rights
established by Section 23004.1; or (2) waive any such claim, in
whole or in part, for the convenience of the county, or if the
governing body of the county determines that collection would result
in undue hardship upon the person who suffered the injury or disease
resulting in care or treatment described in Section 23004.1.
   (b) If a request is made to compromise or waive any claim
established by Section 23004.1, the following factors shall be
considered:
   (1) The total value of the damages suffered by the injured person
or the survivors in comparison to the amount actually recovered by
way of judgment, settlement, compromise, arbitration award, or
mediation settlement.
   (2) Other liens being asserted against the recovery that would
reduce the final recovery to the person or survivors and whether or
not other lienholders have agreed to compromise or waive their liens.

   (3) Whether or not the claim established by Section 23004.1 would
exceed 50 percent of the moneys ultimately recovered by the person or
survivor under any final judgment, compromise, or settlement
agreement after paying a prior lien.
   (4) Any other factors that would be just, fair, and equitable to
consider when presented with a request to compromise or waive a claim
established by Section 23004.1.
   (c) No action taken by the county in connection with the rights
afforded under Section 23004.1 or this section shall be a bar to any
action upon the claim or cause of action of the injured or diseased
person, his or her guardian, personal representative, estate, or
survivors against the third person who is liable for the injury or
disease, or shall operate to deny to the injured person the recovery
for that portion of his or her damage not covered hereunder.
   SEC.   4.    Section 14124.70 of the 
   Welfare and Institutions Code   is amended
to read: 
   14124.70.   (a)    As used in this article:

   (a) 
    (1)  "Carrier" includes any insurer as defined in
Section 23 of the Insurance Code, including any private company,
corporation, mutual association, trust fund, reciprocal or
interinsurance exchange authorized under the laws of this state to
insure persons against liability or injuries caused to another, and
also any insurer providing benefits under a policy of bodily injury
liability insurance covering liability arising out of the ownership,
maintenance or use of a motor vehicle which provides uninsured
motorist endorsement or coverage, pursuant to Section 11580.2 of the
Insurance Code. 
   (b) 
    (2)  "Beneficiary" means any person who has received
benefits or will be provided benefits under this chapter because of
an injury for which another person or party may be liable. It
includes such beneficiary's guardian, conservator or other personal
representative, his estate or survivors. 
   (c) 
    (3)  "Reasonable value of benefits" means both of the
following: 
   (1) 
    (A)  Except in a case in which services were provided to
a beneficiary under a managed care arrangement or contract,
"reasonable value of benefits" means the Medi-Cal rate of payment,
for the type of services rendered, under the schedule of maximum
allowances authorized by Section 14106 or, the Medi-Cal rate of
payment, for the type of services rendered, under regulations adopted
pursuant to this chapter, including but not limited, to Section
14105. 
   (2) 
    (B)  If services were provided to a beneficiary under a
managed care arrangement or contract, "reasonable value of benefits"
means the rate of payment to the provider by the plan for the
services rendered to the beneficiary, except in cases where the plan
pays the provider on a capitated or risk sharing basis, in which case
it means the value of the services rendered to the beneficiary
calculated by the plan as the usual customary and reasonable charge
made to the general public by the provider for similar services.

   (d) 
    (4)  "Lien" means the director's claim for recovery,
from a beneficiary's tort action or claim, of the reasonable value of
benefits provided on behalf of the beneficiary. 
   (b) In order to protect the director's lien right to recovery to
the fullest extent possible and consistent with Arkansas Dept. of
Health and Human Services v. Ahlborn (2006) 547 U.S. 268, the
beneficiary shall be entitled to recover from the person or party
responsible the reasonable and necessary value of medical services.