You should wait at least one year to assess a patients treatment needs. Have you considered notifying Medicare at the onset of your case instead of waiting until a settlement has been reached? Besides, if you're doing your job, you should know what is due Medicare when you constructed your medical specials.

Many attorneys like to keep subrogation parties out of the mix until after a settlement has been reached, because it gives them more bargaining power in negotiating subrogation settlements.

However, Medicare recovery rights are statutory and pay a pro rata share of fees and costs.

Maybe instead of blaming Medicare, just explain to your clients that this wait usually produces a higher recovery. That is - if the benefits are being passed on to your clients.

AJ-

You make a decent point about contacting Medicare early. I agree that too many attorneys wait too long to contact Medicare, if they address Medicare or other subrogation interests at all. Although we're not always able to do it, our goal is to get a Medicare consent form at the first meeting or two and start the process as early as possible.

My frustrations with Medicare are three-fold. First, it takes far too long for Medicare to determine what is owed them. Case in point, I currently have multiple cases where the damages will justify a tender of the other driver's policy limits and my clients' uninsured motorist policies. These cases could settle today (and I could disburse money to clients that could really use the money), but we will be waiting a significant time to resolve them because Medicare can't figure out what they are owed. In one of these cases, the Medicare subrogation department is telling me that there is less than a $100 subrogation interest when I know that Medicare has paid at least five figures. Who knows how long it's going to take them to figure this out?

Second, Medicare takes too long to negotiate. As you probably know, there are too many cases where there is not enough coverage to compensate the client. In those cases, you have to negotiate with Medicare to make the settlements work. And that process takes months. We're trying to give them money, and yet, it's a painful process.

Third, I'm also sure you know about the new Medicare set-aside rules. There is one person in Texas that can approve a set-aside. We're one of the largest states in the country, and we are all dealing with one attorney. The set-aside process just started in Texas. You can imagine the difficulties having one person is going to create when more and more cases get in the queue.

I am also confused about a couple of your statements. You say that a wait will generally increase recovery. I agree that settling a case too early is a big danger; you don't want to settle before you know the full extent of the client's injuries. But I think delay generally hurts the value of claims. I prefer to pursue them as aggressively as makes sense.

And finally, I am concerned by your last sentence. I'm not sure what you're trying to insinuate. But given that I speak and teach on legal malpractice and ethics issues, and that my partner is on the State Bar of Texas professionalism committee, and that my firm has won numerous awards for our pro bono work, I'm pretty comfortable with the way we practice law.