The determination of whether or not the settlement represents the full amount of plaintiff s damages is left to the trial court to be determined at a hearing. In order to protect the rights of the plaintiff and the defendant, a hearing should be conducted on notice to the health care carrier, at which time evidence should be presented demonstrating that the value of the tort case for pain, suffering and disability far outweighs what the plaintiff was able to obtain in settlement. An explanation for the shortfall in the settlement also has to be presented to the fact finder. The lien holder has an opportunity to appear and dispute the plaintiff s scenario. While New Jersey has limited experience with Make Whole Hearings , other jurisdictions have been holding such hearings for many years.
Some plans recognize the concept in their enabling documents.
There is some limited authority for the proposition that a federal court may apply the Doctrine in a state where it exists if the plan documents are silent on the issue. Sophisticated administrators who keep abreast of legal developments have probably circumnavigated the problem by explicitly rejecting the Make Whole Doctrine in their documents. A language change appears to resolve the problem in favor of the plan. Other courts have simply held that the Doctrine does not apply unless the plan adopts it. Medicare has a priority right to reimbursement over any other lien.