Negligence – Hospice – Preemption

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Where two plaintiffs have brought suit over hospice care, the defendants should not be granted summary judgment despite their argument that the plaintiffs’ negligence and G.L.c. 93A claims are preempted by the Medicare Act, 42 U.S.C. section1395w-26(b)(3).

“… [S]tate tort law claims are not preempted if they do not seek the provision or reimbursement of Medicare benefits. Critically, the record indicates that [plaintiff Patricia] Marble received her Medicare benefits directly from the government and not from a Medicare Advantage private insurer under Part C of the Act. …

“… Numerous courts have concluded that section1395w-26(b)(3) does not preempt common law negligence claims against Medicare Advantage providers for the substandard provision of medical care. …

“… This Court concludes that Marble’s medical malpractice and Chapter 93A claims against the defendant hospice providers are not preempted by section1395w-26(b)(3) of the Medicare Act. …”

Marble, et al. v. Amedisys, Inc., et al. (Lawyers Weekly No. 12-001-21) (19 pages) (Pasquale, J.) (Plymouth Superior Court) (Docket No. PLCV-2018-00473) (January 2021).

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