Marietta Meisler had a trust that apportioned assets equally between her two children. In 2000, she hired Richard Weinberg to draft another trust that gave her daughter, Carole Meisler, a 60 percent interest in the trust.

After Marietta died, Carole sued Mr. Weinberg for legal malpractice, alleging that his failure to include successor replacement language in the trust led to the estate not being divided according to Marietta’s wishes. Mr. Weinberg filed a motion for summary judgment. The trial court found Carole did not have standing to sue for legal malpractice, and Carole appealed, arguing that as executor, she had standing to sue.

The Ohio Court of Appeals, Eighth District, affirms, holding that Carole does not have standing to sue Mr. Weinberg because she did not have an attorney-client relationship with him and the damages sought are individual to Carole. The court rules that an executor does not have “standing to assert a legal malpractice claim when the estate as a whole has not been diminished.” The court notes that even if Carole has standing, there is no evidence that the attorney acted contrary to Marietta’s wishes.

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2017/2017-Ohio-1563.pdf

In 2008, then 13-year-old Gianinna Gallardo was struck by a vehicle after getting off of a school bus, leaving her in a persistent vegetative state and unable to care for herself in any manner.  Her parents filed a lawsuit against the driver of the vehicle, the school bus driver and the school district.  The case eventually settled for $800,000, or about 4 percent of the case’s $20 million value.  Because Medicaid had provided $862,688.77 in medical payments on Gianinna’s behalf, her attorney advised the Agency for Health Care Administration (AHCA), Florida’s Medicaid agency, of the settlement.   The attorney also advised the agency that $35,367.52 of the settlement represented past medical expenses that were recoverable by AHCA.

Florida’s reimbursement statute uses a uniform formula in which the recipient’s gross settlement is first reduced by 25 percent to account for attorney fees, the remainder is divided in half, and AHCA is then entitled to recover the lesser of its total medical payments or one half.   Under this formula, AHCA would recover $323,508.29 in medical payments from Gianinna’s settlement. 

Gianinna’s parents filed suit against the agency in federal court seeking an injunction and a declaration that Florida’s reimbursement statute violates federal law inasmuch as it allows the state to recover from the portion of her settlement beyond that allocable to past medical expenses.  AHCA countered that it was entitled to satisfy its lien from the portion of the settlement representing compensation for both past and future medical expenses. The parties filed cross motions for summary judgment.

The U.S. District Court, N.D. Florida, grants the Gallardos’ motion for summary judgment and denies AHCA’s motion.  The court finds that, consistent with the U.S. Supreme Court’s decision in Arkansas Department of Health and Human Services, et al. v. Ahlborn (547 U.S. 268 (2006)), AHCA is entitled to recover for past medical payments it made on Gianinna’s behalf only from that portion of the settlement allocated to past medical expenses.  The court rules that where, as here, the state reimbursement law explicitly allows for recovery from the portion of the settlement attributable to future medical care, that portion of the state law violates, and is preempted by, federal Medicaid law.

For the full text of this opinion, click here.