Hersh said he anticipated that the defense in his case would aim to reduce the medical expenses that may be presented to the jury, because juries tend to consider past medical expenses when determining the amounts for future medical care and non-economic harm such as pain and suffering.

"There's a million-dollar policy, and our position is by doing what the defendant did as far as the health insurance," Hersh said. "Given what the judge said at the hearing, this would be evidence which could be presented to a jury in a bad faith case. We think the million dollar policy might not be enough and they didn't protect their insured properly."

The most unique hurdle plaintiffs counsel face though is one that was improperly created by the defense, its carrier, and its former attorneys. According to Hersh, Hirschberg's total medical bills amount to many hundreds of thousands of dollars, all of which were submitted through Medicare.

"According to his family, he seems to have aged more quickly following this crash. To this day, he continues to require treatment and care. As his attorneys, we face the typical hurdles presented in any premises case," Hersh said. "Medicare paid a discounted amount of approximately $60,000, but the defense, through its carrier and the carrier's counsel, surreptitiously contacted Mr. Hirschberg's health insurer (Humana Medicare) to improperly have the itemized list of related medical expenses reduced, as is explained further below."

Kirtman said the most interesting aspect of the case is how significantly it prevents our client's ability to achieve justice.

"This is the first time that I've seen something like this done in 12 years of practice, and others should know about it in case it happens elsewhere in our state," he said.

Palm Beach Judge Scott Kerner is the presiding judge.

West Palm Beach attorney defense counsel John Chiocca of Cole, Scott & Kissane did not respond to request for comments.

Sanctions lien

According to Hersh the incident occurred when Hirschberg, was walking through a parking lot with his daughter, who has a disability, heading toward a restaurant in Boca Raton.

"The company that owns the parking lot, the defendant in this case, is a well-known landowner in South Palm Beach that owns a substantial amount of property. Unbeknownst to Mr. Hirschberg, the parking lot pavement had a defect in it that caused a portion of pavement to be elevated right on the approach to a walking path," Hersh said. "This defect caused Mr. Hirschberg to trip and fall. He suffered an elbow fracture that later required a total elbow replacement and a lower back injury that resulted in a fusion surgery. Mr. Hirschberg is left with permanent limitations, including an inability to lift more than five pounds with his injured arm."

Hirschberg filed a Complaint on Dec. 17, 2019, and he later filed an amended complaint on about Dec. 3, 2020.

Hirschberg has health insurance through a Humana Medicare Advantage Plan. The plan paid for his medical care and treatment including two surgeries, the complaint stated.

Pursuant to the Medicare Secondary Payer Act, Humana allegedly asserted a lien in the case and the plaintiff is responsible for satisfying the lien if a recovery is made from the defendants, according to the complaint.

Around Sept. 22, 2021 Humana allegedly provided plaintiff with an update lien totaling $534,424.94 in overall billed charges and $60,546.03 in total benefits paid by Humana. These numbers included all payments made by Humana relating to plaintiff's left elbow and lumbar spine injuries, which Hirschberg alleges resulted from the incident at issue in this case, the complaint stated.

On Jan. 21, 2022, defendants' current counsel provided the undersigned with correspondence from Humana dated Oct. 23, 2021, which allegedly contained vastly different numbers for total billed charges and the amounts paid.

Humana's October correspondence itemized $253,322.78 in total billed charges and $16,437.08 in total benefits provided. All expenses and payments related to plaintiff's back injuries — including the Dec. 16, 2019, fusion surgery — had been removed from the itemized list of claims paid, despite there not having been any adjudication as to whether such expenses and payments were causally related to the subject incident, according to the complaint.

Further investigation revealed that the defendant's carrier's conduct and urge led to the lumbar spine-related payments made by the health insurer being removed from the itemized lien, the complaint stated.

Matt Dorius, an attorney with the law firm Carr Allison in Birmingham, Alabama, on behalf of defendants and their carrier is seeking to have all payments associated with the injury removed from Humana's related charges.

Dorius allegedly contacted the Humana claims representative arguing to the plaintiff's health insurer the injury-related payments should be removed from the itemization and lien since Hirschberg Jan 3, 2019, didn't cause aggravation or any injuries to the lumbar spine.

Dorius sent a follow up email to Humana demanding all payments relating to the lower injuries be removed from Humana's itemization and lien.

Defendants' Response In Opposition to Plaintiff's Motion For Sanctions and To Strike Pleadings For Fraud Upon The Court

In the defendants' response In opposition to plaintiff's motion For sanctions and to strike pleadings for fraud upon the court, they stated Hirschberg failed to provide any evidence that defendants themselves deliberately and intentionally set in motion to interfere with the court or plaintiff's ability to prosecute his case.

According to the defendant's response, they believe the plaintiff's motion for sanctions alleges plaintiff failed to prove convincing evidence that defendants "knowingly" set in motion an unethical scheme that was calculated to interfere with Plaintiff's case that would warrant entry of default.

Defendant also mentioned that no prejudice was suffered by plaintiff as a result of the medical lien reduction because plaintiff can simply present the original medical lien amount at trial, rather than the reduced amount, according to the defendants' response.

Kirtman suggests attorneys have to keep their eyes and ears open.

"We are not suggesting that the lawyer who's currently representing the defendant has done anything wrong in this case. We're not alleging that he's done anything wrong. In the hearing, he was very transparent that this is something the carrier had done out of state. In terms of the most important thing people can take from this is you really have to be vigilant. You have to keep your eyes and ears open," Kirtman said. "You have to be monitoring the liens and make sure that this conduct is not happening in our state. We know it's happening elsewhere, and we know what other carriers are doing. We know that this is happening but we don't know if it's a growing trend or not because the court was very clear that this is a sanctionable conduct that should not exist in our civil justice system."