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Hospital Gets No Credit For Care Not Paid By Medicare

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While in Via Christi’s St. Francis Hospital in Wichita, Kansas, for tests, Lyle Rose fell out of his bed and hit his head. He suffered a subdural hematoma (a blood clot in the brain) and developed other complications. He stayed in the hospital for over a month, but despite the facility’s best efforts he died from his injuries.

Rather than pay for his intensive care stay itself, Via Christi chose to bill Medicare for Mr. Rose’s time in the hospital. Because Medicare pays less than the full cost of patients’ care, Via Christi ended up writing off over $150,000 of the $242,000 it billed for Mr. Rose’s care. Medicare rules precluded Via Christi from seeking payment for any portion of the bill it was required to write off.

After he died, Mr. Rose’s family sued Via Christi for negligence. They alleged that it was the hospital’s fault that he had fallen out of his hospital bed, and a jury ultimately agreed, if only partially. The jury awarded $582,186.01 in damages for Mr. Rose’s death, and ruled that Via Christi was responsible for 36% of that amount, or $209,586.96.

Via Christi then asked the judge to reduce the award because of the unpaid medical care it had provided. Via Christi argued that it had already contributed more than its 36% share of the medical care portion of Mr. Rose’s care; after all, the facility reasoned, the total amount of damages had included the portion of its fee that had been written off.

The trial court agreed and reduced the judgment against Via Christi to just over $115,000. The Kansas Supreme Court, however, reversed the trial judge and reinstated the original judgment against Via Christi.

According to the court, there were two problems with Via Christi’s position. First, Medicare rules prohibit providers from seeking reimbursement for any unpaid portion of a bill otherwise covered by Medicare. Since the Medicare law is federal, it preempted any Kansas state law which arguably might have authorized the offset.

The “collateral source” rule also keeps defendants from introducing information about a plaintiff’s insurance coverage. Medicare, ruled the Kansas court, is after all just an insurance program, and Mr. Rose’s estate should not be penalized for the fact that he was covered by insurance.

Via Christi argued that keeping this information out of the court case gave Mr. Rose’s heirs a windfall. That may be true, reasoned the court, but if there is to be a windfall, it should benefit the victim’s family rather than the hospital. Rose v. Via Christi Health System, October 31, 2003.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.