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March 2013
Insights into North Carolina Law  
from Civil Litigation Attorney MIKE  DAISLEY  

MARCH MADNESS? (Or has the Supreme Court just told North Carolina to march to a different drummer?)

Earlier this month, SCOTUS forces NC to change the amounts recovered in some catastrophic injury cases involving Medicaid.




     The Supreme Court of the United States (aka "SCOTUS" aka "The Supremes") recently handed down a decision that will bring profound changes in the way North Carolina disburses settlement proceeds in catastrophic injury claims.

(Not "SCOTUS")

     Before this month's decision, whenever a person on Medicaid was injured by someone else's carelessness, but there was not enough funds recovered from the careless party to pay for all of the injured person's expenses and damages, attorneys were required to pay back to Medicaid basically one third of all those funds. 

     No more.  In the case of Wos v. E.M.A., the High Court decided that "North Carolina's scheme is "arbitrary" and often leads to results where a person already badly harmed gets injured even further by the civil justice system.  The Court summarized the essential problem with North Carolina's practice this way: 


"The state law has no process for determining what portion of a beneficiary's tort recovery is attributable to medical expenses. Instead, the State has picked an arbitrary percentage and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care... 
The State offers no evidence showing that its allocation is reasonable...and the law provides no mechanism for determining whether its allocation is reasonable in any particular case. 

     My good buddy, Chris Nichols from Raleigh (who is sort of the "Guru" of disbursements in North Carolina) was a behind-the-scenes strategist for the Plaintiffs in this appeal.  

     Congrats to Chris, and more especially to the thousands of injured parties in North Carolina who will receive fairer and more logical treatment from the Medicaid system, as they try to recover from devastating injuries.       


WHO GETS THE MONEY?  The Challenge of Disbursements:

     This whole area of settlement disbursements is a growing challenge in civil litigation.  In the old days (Lord, I'm sounding more like a geezer each day, it seemed like my biggest task was holding the negligent parties accountable for all the harms and losses they had caused my clients.  But more and more it seems, even after all the effort that goes into obtaining a good verdict or settlement, there is an enormous amount of work left to be done with the determination of how those funds are distributed.

Injuries in a Public Place & the NC Law of Contributory Negligence
Check out my quick video on
NC's arcane law of 
"Contributory Negligence."

     A recent settlement serves as a good example.  The defendant  company that created the unsafe condition resulting in my client's significant leg injuries claimed that it had done nothing wrong. The injury was my client's fault, they said, and they owed her nothing.  

     Because of North Carolina's antiquated "Contributory Negligence" defense, there was a chance the client might end up with nothing after a trial.  A compromise was reached at mediation, but the settlement amount barely covered the costs of her medical treatment, with almost nothing left to cover future disabilities.

     Thus, even after the settlement funds had been received and closing documents filed with the Court, a considerable amount of time was spent working with the medical providers to satisfy medical liens so that everyone was at least partially paid and no bills went into collections.  Fortunately, Medicaid was not involved in her particular case, but if it had been, it would have complicated the final settlement process even more.

     If you ever have questions on how to distribute settlement proceeds, or any other matters involving North Carolina litigation practices, I hope you won't hesitate to come by for a cup of coffee to discuss it with me.  Even if I can't help, I'm always happy to listen and point you to someone who can.


All the best,

Michel C. Daisley

Litigation Attorney & Certified Mediator

DaisleyLaw, PLLC

2412 Arty Avenue

Charlotte, NC  28208


email:  MDaisley@DaisleyLaw.com

More Informational VIDEOS...
    Whether you access them through our firm's website, or login to our YouTube Channel, or simply search on Google for "DaisleyLaw videos," you will find a number of quick and (I hope) helpful tips and insights into such things as testifying at depositions, and customer and visitor injuries and North Carolina's law of contributory negligence, or whether to speak at a mediation.   
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Civil Litigation Attorney
& Certified Mediator
DaisleyLaw, PLLC
2412 Arty Avenue
Charlotte, NC  28208
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