Madison - St. Clair Record

Monday, September 23, 2019

IL SC to hear parents' class action seeking compensation for lead test paid for entirely by Medicaid


By Heather Isringhausen Gvillo | Feb 28, 2019

The Illinois Supreme Court has agreed to hear a class action in which the parents of minor children who underwent lead toxicity testing claim they should be able to recover damages for the cost of the tests even though they were paid for entirely by Medicaid. 

The certified class specifically excludes any parent or legal guardian who did not incur an expense, obligation or liability for the lead toxicity testing for their children. 

However, the parents argue that even though the costs of the tests were covered by Medicaid, they nonetheless incurred an expense, obligation or liability for the cost of the testing. 

The circuit court granted summary judgment for the defendants in the case, but the First District Appellate Court reversed, finding that the state’s collateral source rule applied to preclude the use of evidence demonstrating that the testing costs were fully funded by Medicaid. The case now sits before the Illinois Supreme Court. 

According to a decision out of the First District Appellate Court, Mary Lewis, Tashswan Banks and Kathleen O’Sullivan filed the class action on behalf of themselves and all others similarly situated in Cook County against Lead Industries Association Inc., Atlantic Richfield Co., ConAgra Grocery Products Inc., NL Industries Inc. and The Sherwin-Williams Company. They seek to recover the costs of blood lead screening their children underwent as required by the Illinois Lead Poisoning Prevention Act. 

The class consists of the “parents or legal guardians of children who, between Aug. 18, 1995 and Feb. 19, 2008, were between six month sand six years of age and during that age bracket lived in zip codes identified by the Illinois Department of Public Health as ‘high risk’ areas … and had a venous or capillary blood test for lead toxicity, excluding such parents and legal guardians who incurred no expense, obligation or liability for the lead toxicity testing for their children.”

The defendants moved for summary judgment on Oct. 6, 2016, arguing that none of the three plaintiffs incurred any expense, obligation or liability for the lead toxicity testing for their children. 

Lewis and Banks had both asserted during their deposition testimonies that they were Medicaid recipients when their children were tested and neither of them paid for the tests. Additionally, O’Sullivan was insured by BlueCross Blue Shield and allegedly had no recollection of paying for the blood testing for her children.

Cook County Circuit Judge Peter Flynn granted summary judgment on April 20, 2017, finding that neither Lewis nor Banks is actually a member of the class because they did not incur any expense, obligation or liability. He also found that O’Sullivan failed to show that she was a member of the class because she did not present facts showing she incurred an expense for the testing.

On Nov. 6, 2017, Lewis and Banks appealed to the First District Appellate Court. O’Sullivan is not a party to their appeal.

Justice Thomas Hoffman delivered the Sept. 7 appellate court decision with Justices Joy Cunningham and Maureen Connors concurring. 

The issue before the court is “whether the parents of minor children who underwent lead toxicity testing that was paid for entirely by Medicaid incurred an ‘expense, obligation or liability’ for the cost of testing.”

Lewis and Banks argue that they had to pay the cost of the testing for their children at the time the services were rendered, even though the cost was paid for by Medicaid “on some future date.”

“Invoking the ‘collateral source rule,’ Lewis and Banks argue that their right to recovery for the reasonable value of their children’s lead toxicity testing is not diminished by the fact Medicaid paid the entire cost,” the appellate court decision states.

The appellate court agreed, holding that a “parent’s right of action is not affected by the fact that a third party paid those expenses.”

“One of the justifications for the collateral source rule is that a tortfeasor should not benefit from, or take advantage of, the contracts or other relations that may exist between an injured party and third persons.

“That justification is no less compelling in a case involving a purely economic injury than in a case involving personal injury," the appellate decision states.

“And it matters little that the benefit bestowed upon the injured party is the result of a relationship with the government such as her entitlement to Medicaid benefits,” it continues. 

After the First District reversed and remanded summary judgment, the Illinois Supreme Court agreed to hear an appeal. 

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