Here is a scenario that plays out daily in America. You were injured in a car wreck, you settled with your insurance company or won a judgment in court, and now you are ready to be paid. Then your attorney says he or she cannot settle because of TRICARE, the Department of Defense health care program.
For active duty or retired veterans, and their families, this is playing out in a real and very intrusive way. Congress has provided the services with the right to recover both for medical care and, if you are active duty, convalescent or sick leave (you are reading this correctly – convalescent leave that you are forced to take must be paid back), paid for by the service.
This means that before your attorney or insurance company can pay you, they must first pay TRICARE. The law that governs the amount of this right is 10 U.S.C.A. § 1095(h)(i)(2). That law states that collections shall occur under the Medical Care Recovery Act (MCRA).
Under the MCRA, the law is fairly clear where there is enough money to go around, TRICARE gets paid back everything; however, what if there isn't enough money to go around?
In this instance, the Federal Government will hold your money hostage. It could take years to be paid any portion of what your attorney already has in hand.
So how do they do this and what are your options?
The Federal Government will claim that it is due all the money and leave paid and will hold up disbursement of funds until you go to court.
Fortunately, our courts aren't quite as generous. 42 U.S.C. § 2652(c) provides that “no action taken by the United States in connection with the rights afforded under this legislation shall operate to deny to the injured person the recovery for that portion of his damage not covered hereunder.”
The courts have read this to mean that if there isn't enough money to go around, there is no priority between a plaintiff and the government. In that instance, the Court will use its Equity powers and provide each party with a pro-rata share of the proceeds.
Okay, so what does this mean to you, the injured Plaintiff? First, it means that unless you can reach a settlement with the government, you are going to have to go to court to protect your rights.
Second, you must get a judgment to identify what percent of the judgment belongs to the federal government, and what percent belongs to you.
Finally, the court will reduce both to divide up the limited funds. This means that your percentage of the money will be reduced by the same percentage as the federal government.
This is very complicated and requires detailed legal knowledge to sort through the various legal issues and courts. If you are a TRICARE member and have been injured in an accident, feel free to contact us to get help determining your rights in this situation. This is not something that you can do on your own. Your initial consultation with us is FREE.
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