Damages sought in personal injury cases typically include medical expenses, wage loss and pain and suffering. But there are additional damages that can be claimed and can be overlooked by plaintiff's attorneys.

Where the plaintiff is a Medicare beneficiary, for example, it is often found that the medical expenses related to the injury were paid by Medicare instead of by an appropriate "primary payer" (group health insurer, no fault insurer, workers' comp insurer, negligent party or insurer for the negligent party.)

Where Medicare has made payments that should have been made by another, the Medicare beneficiary (among others) has a statutory cause of action for damages equal to double the amount of the Medicare payments. And the beneficiary who recovers the double damages doesn't have to share it with Uncle Sam!

The Medicare Secondary Payer law (part of the federal Social Security Act) provides at 42 USC 1395y(b)(3)(A): "There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A)."

This law creates a private right of action with double recovery to encourage private parties who are aware of non-payment by primary plans to bring actions to enforce Medicare's rights.

A primary plan's responsibility for such payment may be demonstrated by a judgment against the primary payer, a settlement by a primary payer (even where liability is denied) or "by other means." 42 USC 1395y(b)(2)(ii).

"By other means" includes but is not limited to a "settlement, award or contractual obligation." 42 CFR 411.22.  Contractual obligations to make payment of medical expenses exist, for example, in insurance policies and self-insurance plans for workers' compensation, liability, no fault and group health coverage.

It is increasingly common, for example, for Medicare beneficiaries injured in auto accidents to add a count for double damages under the Medicare Secondary Payer law in their suits against the PIP carrier. The PIP carrier's status as a primary payer vis-a-vis Medicare is established by the contractual obligation represented by the no fault policy of insurance.

An action for double damages, however, may not be available in the typical third party claim. The law provides no private cause of action against an alleged tortfeasor whose responsibility for payment of a Medicare beneficiary's medical costs has not been previously established by agreement or otherwise. Glover v. Liggett Group, Inc, 459 F2d 1304 (11th Cir, 2006).

Section 1395y(b)(3)(A) has been interpreted to provide that the plaintiff is entitled to the entire recovery - with no obligation to share with the government. United Seniors Assn v. Philip Morris USA et al, 500 F3d 19 (1st Cir, 2007).