Subrogation Claims In Personal Injury Cases

In car accidents, tractor-trailer accidents, medical malpractice or other serious injury cases, in the event a settlement is reached, there is always the possibility of a subrogation claim being asserted by a third party against the settlement proceeds. Subrogation claims are usually claims held by insurance carriers that have paid medical benefits. The victim who was injured by the negligent truck driver, for example, may have incurred hundreds of thousands in medical bills for expensive surgery. If a third party health insurance carrier pays these bills, the health insurance company will seek to get its money back out of any settlement fund. The victim wants the money for him or herself because they will need it for their lifetime due to the severity of their injuries. Moreover, the reason that they are entitled to the compensation because they are the ones that have experienced the pain and suffering and have had to go through the horrible ordeal of being so seriously injured. On the other hand, the healthcare provider contends that it is entitled to its portion of the money because it paid the money usually under a contract that may contain a right of reimbursement or an alleged right of subrogation.
In Georgia there is a “made whole” doctrine which basically states that unless the victim of a personal injury claim has been made whole for all of their economic and non-economic damages, there is no valid claim of subrogation by a third party health insurance carrier. This general rule is subject to multiple exceptions including cases where the alleged subrogation claimant is a federal ERISA plan which is self-funded. In cases where companies provide for ERISA self-funded insurance plans for their employees, there may be a valid lien under federal law for such a plan’s subrogation interests. Again, all of these cases are factually specific and it is necessary that any victim in such a case confer with experienced counsel. While every case is different, in virtually any serious injury or personal injury case, subrogation is something that will have to be considered by the victim and their counsel if and when a case is settled.

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