thus provides the court with some discretion in allocating attorney fees. The subsection further provides, however, that the fees paid by SRS may not exceed either two-fifths or one-third of the medical assistance recovered, depending on whether there was a trial or a settlement prior to trial. [1] See id.; cf. Walker v. District of Columbia, 682 A.2d 639, 644 (D.C. 1996) (holding equitable principles statutorily abrogated partly because statute explicitly created exception to full reimbursement to government by requiring government to pay portion of medical assistance recipient’s attorney fees). Section 39-719a(c), as discussed previously, also places a limitation on SRS’ recovery when the injured party’s total damage award has been reduced as a result of negligence attributed to the party pursuant to § 60-258a. See Kan. Stat. Ann. § 39-719a(c).
- ↑ Many cases raising the issue of whether the state’s subrogation right is subject to equitable principles involve a request by an injured party that the state pay a portion of the injured party’s attorney fees and other litigation expenses incurred in obtaining a recovery from a third party. For example, in Hedgebeth v. Medford, 378 A.2d 226 (N.J. 1977), an injured party contended that a pro rata share of the injured party’s attorney fees were properly deducted by the trial court from the state’s Medicaid reimbursement claim. The state supreme court agreed, holding that the state’s statutory subrogation right was governed by equitable principles and that, in accordance with these principles, the state must pay a portion of the recipient’s attorney fees. See id. at 374. Because the requirement that the state share attorney fees and other litigation expenses incurred by the injured party in pursuing a recovery is a prominent equitable principle in medical assistance reimbursement cases, the statutory expression of this principle in § 39719a(b) is an indication that the Kansas legislature was aware of equitable principles and made a choice to include some equitable principles while excluding all others in its enactment of § 39-719a.
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