Lowey Dannenberg Establishes Right of Recovery for Medicare Advantage Organizations under the Medicare Secondary Payer Act


The United Stated Supreme Court denied a grant of certiorari to landmark decision for Humana and Louisiana Blue Cross establishing Medicare Advantage Organizations’ reimbursement recovery rights under the Medicare Secondary Payer Act, In re Avandia Marketing Sales Practices and Products Liability Litigation, 685 F.3d 353 (3d Cir. 2012), cert. denied, 12-690, 2013 WL 1500235 (U.S. Apr. 15, 2013).  In a 31-page opinion, the Third Circuit had found that the Medicare Secondary Payer Act provides Medicare Advantage Organizations like the firm’s client Humana, "secondary payers," a private cause of action against a "primary payer" like the tort-feasor GlaxoSmithKline.  Humana sued Glaxo alleging that the Medicare Secondary Payer Act required Glaxo to reimburse Humana and other MAOs for medical costs they had covered for thousands of patients allegedly harmed by Avandia, which has been linked to stroke and heart attack risk.  The drug maker settled at least $460 million of personal injury claims stemming from Avandia use.