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Help sued and wife is medicare recipient


britre
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I need some help. My wife and I are being sued for $100 of medical debt (yea I know, $100??) My wife is a Medicare recipient with no secondary insurance and less than $300 income per month from SSI disability. Lawyer is claiming Doctrine of necessities. We live in a common law state guided by statutory 50/50 rules

 

Question 1: Medicare rules I found state no one except the beneficiary can be held responsible for a Medicare covered beneficiary. Can I motion to dismiss me the spouse?

 

Question 2: This claim arises from a co insurance payment that was not received by the hospital for whatever reason. Prior to lawsuit we agreed in writing four days before the suit was filed to pay debt in full in payments. Lawyers excuse for filing suit is we ceased and desisted phone contact and he does not make settlements in writing. Do I have case for bad faith and malicious prosecution?

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The necessaries doctrine comes from the English common law duty of a husband to provide for the necessary expenses of his wife and child.

 

Under this doctrine a person selling goods to a wife or child can charge the husband or father.

 

The condition is that the goods must be essential for the beneficiary’s sustenance.

 

To prevail under the theory of the doctrine of necessaries, the provider of the necessary services or goods must show that:

(1) services or goods were provided to the spouse;

(2) services or goods were necessary for the health and well-being of the receiving spouse;

(3) the person against whom the action is brought was married to the person to whom the necessary services or goods were provided at the time such services were provided; and

(4) the payment for the necessaries has not been made.

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My wife is a Medicare recipient with no secondary insurance and less than $300 income per month from SSI disability. Lawyer is claiming Doctrine of necessities.

 

Just to clarify, being on SSI does not mean you cannot be sued.  All it means is that they cannot garnish those funds to satisfy a judgment.  However, if you have joint checking or savings they can garnish any funds that are not from SSI.

 

Medicare has NOTHING to do with being able to sue patients for outstanding bills and affords no such protection for amounts owed for care received.  

 

That said, I am shocked a provider would go to the expense over such a small amount.  I would call the provider and ask what the situation is.  They have the power to tell the lawyer to drop it.

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We do not have joint anything. This scum bucket added me to the suit for the very reason my wife is judgment proof. They are robbing the bank that has the money. I knew nothing of this debt until the day they sent a dunning letter. By the way, my wife is a monthly almost weekly patint at this hospital. It is not the hospital who wants the money, its th debt collection law firm

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We do not have joint anything. This scum bucket added me to the suit for the very reason my wife is judgment proof. They are robbing the bank that has the money. I knew nothing of this debt until the day they sent a dunning letter. By the way, my wife is a monthly almost weekly patint at this hospital. It is not the hospital who wants the money, its th debt collection law firm

You stated you were being sued, but here you say they are robbing the bank that gas the money. Do they already have a judgement against you? Or are you in the middle of the lawsuit?

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Ok. So let me go this route...

 

Yes we are in the lawsuit. My wife is primary defendant, I am Et Al

My wife is a Medicare Beneficiary recipient. She has no other insurance. Her Medicare is under her former last name.

We do not have any shared money resources such as joint checking, I own the house and the loan on it and my own finances i.e. Credit Cards, Check Acct's

 

I work for a living and was and have not been present for any of the multiple ER visits, procedures ect... that this Health group who sued my wife and me for the $100 provided. I also never signed any COA agreements ever. My wife signed for herself. She is in fact a frequent patient who is recognized by name in the hospital that is suing for the $100. They never said a word about this specific unpaid co-insurance. Other bills have and are being paid.

 

I think question two was answered as even if a dime is left unpaid, the services provided are a part of payment for the services therefore the services are not paid for no matter how little is unpaid.

 

Question one I think was answered also stating the beneficiary is judgment proof so therefore the family members are on the hook for co-insurance payments that may not have been paid.

 

And to clarify that point. Instead of staying with filing a lawsuit against my wife only (who is judgment proof) this law firm decided to sue me the spouse who is not judgment proof, holds a job and owns property. My big fear is my financial life will be ruined by a judgment on my record for a lousy $100 that no one ever refused to pay. We said we would pay, four days later they sue. Their excuse for suing (and I have this in discovery admissions) is we told them to cease and desist phone contact and the law firm does not make payment arrangements in writing, only by telephone. Hope this adds some clarity to my post.

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First of all is there an affidavit in the complaint? Is the injured party in court or is there just the attorney? If the only person there is the attorney that is fraud, attorneys cannot testify as to the facts of the case.

In order for the court to have subject matter jurisdiction there has to be four things, Two parties opposing each other, (thats two) the court has to have subject matter jurisdiction, and the most important is a competent witness. 

common law 101 first class I had in law school.

Common law state that there has to be a sworn affidavit of injury and an injured party look around the court room is the injured party there? Your injured party in this case would be someone from the doctors office or hospital that is competent to testify. If either one of these are not present you motion the court to dismiss the case for a lack of a sworn statement of injury and no injured party present. The attorney will try to say that he represents the injured party and he is appearing for them, this is not true, he may represent them and he may be appearing for them but he cannot testify as to any of the facts of the case. If attorneys could testify as to the facts there never need be a witness at any trial. Actual facts not mere allegations of complaint are determinative of jurisdiction. No witness no subject matter jurisdiction.

 

Attorneys cannot advance documents from another person expecting someone to rely on those documents in which that person may have to surrender money, property, or rights; especially if they have any suspect that they could be false.

An attorney has an obligation under oath to make an inquiry, reasonable under the circumstances, to determine whether or not there is a legal obligation. If they do not document and verify the allegations they commit fraud in the name of the person they represent.
 

Subject matter jurisdiction  can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties.  Subject matter is two part: The statutory or common law authority for the for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings.

 

If for any reason you feel that the court does not have personal or subject matter jurisdiction you can challenge that at any time. Once challenged it has to be proven and burden of proof will be upon the plaintiff to prove such. The court itself cannot determine whether or not they have jurisdiction. You can also collaterally attack any judgment the court makes if it does not have and does not keep jurisdiction. And yes, the court can loose jurisdiction at any time during the proceedings over a number of reasons.

No petetion in the record of the case, Defective Petition, Fraud committed in the procurement of jurisdiction, Fraud upon the court, Violation of due process, Where no justiciable issue is presented to the court through proper pleadings. just to name a few.

 

Remember this sentence,,,If no affidavit is in the case they have yet to name a witness, if there is no witness there is no injury, if there is no injury there is no wrong, if there is no wrong there is no remedy, if there is no remedy there is no case. Your motion to dismiss would be as such,,,first you object, then you state, "motion to dismiss with prejudice, there is no sworn statement of injury and there is no witness present."
 

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Maybe I'm oversimplifying, but if the total debt is only $100.00, wouldn't the best course of action be to pay the $100.00?  Especially considering the OP had already agreed to do exactly that?

 

Yes and the OC that continued with suit instead of settling for what was owed is going to experience the wrath of the court for wasting its time.  Instead of splitting hairs over disability, bank accounts, or the why the better thing to do in order to avoid a judgment is to settle this with the OC ASAP.

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Hmmmm this is very simmilar to my case, same firm, same affidavit verbatim, same summary judgment motion, only difference is defendant agreed to pay in full via agreement previously made with hospital.  And again after debt verified and 4 days before the lawsuit was filed. Hospital will not settle or take payment and states it is out of their system, law firm wont settle without costs, stuck in the mud. Did I mention the Hippa violation?

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Guest usctrojanalum

No HIPAA violations here.  The collection of outstanding debt is an exception.  Also there is nothing you can personally doe about a HIPAA violation.  It does not afford the patient a private right of action (meaning you can't sue based on a violation of HIPAA).  The patient has to file a complaint with the OCR and if they find there is a violation after an investigation a first time violation is like a $50 or $100 fine or something.  

 

That being said, If your biggest fear is that your financial life will be ruined, just pay the $100 and maybe look to do business with a different hospital if possible.

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Not true. Debt collectors can have your Statement on Account, SS#, payment history, and COA. They CAN NOT have written test results, written doctors diagnosis notes and medical orders for tests, blood test results, or any other personal medical information regardless of it's relationship to a debt owed. If anyone experiences this they need to file a complaint with the provider pronto and push for rectification.

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Here is the rub friends. Called the OP they said "written off as bad debt, call collections agency" called collection agency they said "can't help you referred to attorney" both will not take or accept payment. Attorney was offered full payment prior to suit (was requested to give consideration in the form of smaller payments lets say $25 per rmonth) Sues without an answer very quickly. WILL NOT SETTLE. When offered full payment as the amount does not justify a court trial, stated if there was an offer of tender he needed service fee, filing fee, and attorneys fees (almost $300 more than that lousy $100) no judgment here but thinks he should get attorneys fees????

 

Sooooo Just wanted to stop the pay the provider comments and pay the money. They simply refuse to take the money and want profit in the way of attorney fees and a filing fee for a lawsuit that did not need to be filed.

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Not true. Debt collectors can have your Statement on Account, SS#, payment history, and COA. They CAN NOT have written test results, written doctors diagnosis notes and medical orders for tests, blood test results, or any other personal medical information regardless of it's relationship to a debt owed. If anyone experiences this they need to file a complaint with the provider pronto and push for rectification.

 

If you request validation they can have them in order to comply with the consumer request for validation.  As long as the CA has a business relationship with the provider it is not a HIPAA violation.  

 

Court is also the other exception to HIPAA.  In order to sue the law firm can request those documents as part of evidence and does not need a release from the patient.  

 

As has been already said there is no private right of action for HIPAA violations any way.  All you can do is make a complaint to OCR and if the violation is severe enough the fine will not be a slap on the wrist.  

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This is exactly my thought, but.... worried though, Nothing is in dispute except we never refused to pay at anytime, plaintiff could be entitled to summary judgment for the fact irregardless the payment was not received. That means we are under a heavy rock with no escape even if the judge shows compassion, how does he not follow the law and allow us to avoid financially crippling judgment?

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Guest usctrojanalum

Once a lawsuit is initiated, they are entitled to the filing and service fees that have already been accrued.  I'd be very wary of paying any attorneys fees though.

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Good news! We settled and dismissed. judge was having none of the attorney's summary judgment motion. Judge even accepted my argument against doctrine of necessities which was that voluntary medical procedures can not be  deemed "reasonable and necessary" and no hospital employee can be an expert on such. Also that under marital property state law, both partners are equal and 50% stake holders in debts and credits unless death should separate them and at that time a spouse does need to have some stake in the settlement of the others affairs. Also, proof a person "refused to pay" is actually in fact, quite hard to prove in a court of law. Unfortunately, if you never refused to pay, you agreed to pay at all times and therefore a settlement is the effected outcome. Thanks for all the posters help here and hopefully my days in debtors court are over!

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