Saturday, May 19, 2012
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Pending Appeals and Tactics
by J. Michael Hayes

Pending Appeals and Tactics

MEDICARE: Toepfer appeal challanging assessment of medical expenses by CMS is before an Administrative Law Judge to be argued on November 18, 2010.  We are about to initiate suit in Federal Court naming CMS as a "necessary party" Defendant pursuant to FRCP 20 to force them to pursue their own medical expense recovery claims and to shorten the above protracted administrative appeal process.

WORKERS' COMPENSATION:  Appeal to the Appellate Division, 4th Department motion in Traska & Robinson to sever the pain and suffering claims from the insurer's medical recovery claim on Ethical grounds was argued September 7, 2010.  The decisions usually are rendered in two months.

MEDICAID:  The County of Erie has been sued as a "necessary party" Defendant pursuant to CPLR 1001 to force them to prove their own recovery claim.  Again, the grounds are Ethical.  The attorney should really only represent one client at at time for any particular lawsuit.  To represent multiple parties is a conflict of interests. Professional Rules of Conduct, Rule 1.8(g).

On the Workers' Compensation front, the 4th Department of the Appellate Division on October 1, 2010 in Traska and Robinson "affirmed  for reasons stated in the decision at Supreme Court".

This could be one of those "stealth" orders where the decision is presented in such a manner that no one can know, and therefore may not cite, pursue or follow, the ideas presented upon the motion.  The concept is that if there is no discoverable record or decision, the concern that an attorney should not be forced to represent two competing parties on the same claim, will be hidden and the statue quo maintained. 

However, Ethics and Conflicts of Interests are not issues to be taken lightly.  A lawyer stands upon his good name and his integrity.  This conflict issue requires clarification, not covering up, and needs to be seriously considered by the higher courts.  Injured victims, who are relying on their attorneys to represent them solely, are entitled to honest, not conflicted, representation.

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