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Medicaid Entitled to Recover From Pain and Suffering Claim

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Medicaid, the federal/state partnership program providing medical care for disabled indigents, covers medical care regardless of the cause of the beneficiary’s illness or injury. A Medicaid recipient may file a lawsuit against the person causing an injury for which the beneficiary is receiving Medicaid benefits. In such a case, however, one central Medicaid rule makes it clear: the state Medicaid agency is entitled to recovery of its medical payments from the beneficiary’s settlement or judgment.

That general rule may seem clear, but of course there are complications in application of simple principles. Take, for example, Delano Grey Bear’s claim for the injuries he sustained during an operation.

Mr. Grey Bear had been a Medicaid patient since a car accident in 1978. In 1994 he underwent a surgical procedure that he claimed was botched. The North Dakota Medicaid program paid for his medical care both before and after the surgery, and would have a right to recover a portion (and perhaps all) of any settlement he received in a medical malpractice action.

Mr. Grey Bear hired lawyer Robert V. Bolinske to file suit on his behalf. The insurance company offered (and Mr. Grey Bear accepted) $30,000 in full payment for his claims.

Mr. Bolinske had given the Medicaid agency notice of the process and the agency had done nothing. Mr. Bolinske took his one-third contingency fee and sent half of the rest to the Medicaid agency to partially reimburse it for its expenditures, which were more than the entire $30,000 collected. The agency demanded all the money, though it was willing to let Mr. Bolinske retain 20% as his fees in collecting the judgment. A trial judge agreed and ordered both Mr. Grey Bear and Mr. Bolinske to turn over the funds.

Mr. Bolinske filed appeals both for his client and in his own name, arguing that a portion of the settlement money was to compensate Mr. Grey Bear for his pain and suffering. Medicaid’s claim, he insisted, should be payable only from the portion of the settlement that could be ascribed to medical expenses. And, Mr. Bolinske said, the court had no jurisdiction over him personally, since he had never been served with a lawsuit.

The State Supreme Court agreed with the trial judge that all the proceeds could be claimed by the Medicaid agency, even though some portion was intended to pay for pain and suffering. The Court reversed the award against Mr. Bolinske, however, ruling that the judge did not have jurisdiction over him. Grey Bear v. ND Dep’t of Human Svces, Aug. 23, 2002.

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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.