Preview
EXHIBIT 1RECEIVED 95/30/2017 G1:48PM 6174264791 HALSTROM LAW OFFICES
85/30/2017 82:53PM 4135335733 BARBACKT PAGE 87
ABIGAIL WILLIAMS & ASSOCIATES, P.C.
Attorneys at Law
446 Main Street, 9° Floor. itm Massachisens 01608
Phone: 5
Fax: (5081793
www medical-law.com
Abigail R. Williams Sains
Erin A. Auwater
nadine 1) ASs Bil
September 25, 2014
Mr. Karl Barbacki
36 Brookline Avenue
Holyoke, MA 01040
Re: Nelli Barback
Dear Mr. Barbacki
Enclosed please find an original Contingent Fee Agreement form for your records.
If you have any questions or concerns please feel free to contact us.
Thank you.
Yours truly.
7 ee
‘arfdy Y. Novoa, Legal Assistant to
Abigail R. Williams, Esquire
EnclosedABIGAIL WILLIAMS & ASSOCIATES, PC
MEDICAL MALPRACTICE CONTINGENT FEE AGREE
To be executed in Duplicate Date: Woy l i
Phe Chent:
Name,
Address: 36 Brookline Avenue. Holvoke, MA 01040
Retains: Abigail Williams & Associates, PC
446 Main Street, 9" Floor
Worcester, MA 01608
to perform the legal services mentioned in paragraph (1) below. The lawyer agrees to
perform them faithfully and with due diligence,
(1) The claim. controversy, and other matters with reference to which the services are to be
performed are:
uly 2, 2013
(2) The contingency upon which compensation is to be paid is recovery of damages, whether
by settlement, judgment or otherwise.
(3) The lawyer agrees to advance, on behalf of the client, all out-of: pocket costs and
expenses, The client is not to be liable to pay court costs and expenses of litigation, other
than from amounts collected for the client by the lawyer
(4) Compensation (including that of any associated counsel) to be paid to the lawyer by
the client on the foregoing contingency shall be the following percentage of the gross amount
collected, Forty percent (40%) of the first one hundred and fifty thousand dollars ($150,000.00)
recovered; Thirty three and one third percent (33-1/3%) of the next one hundred and fifty
thousand dollars ($150,000.00) recovered: Thirty percent (30%) of the next two hundred thousand
dollars ($200,000.00) recovered; Twenty five percent (25%) of any amount by which the recovery
exceeds five hundred thousand dollars ($500,000.00). The percentage shall be applied to the
amount of the recovery not including any attorney's fees awarded by a court or included in a
settlement. The lawyer's compensation shall be such attorney's fees or the amount determined by
the percentage calculation described above, whichever is greater
Adopted June 9, 1997, effective Jamary 1. 1998. Amended November 2, 2000, effective January 2,
2001 Amended December 22. 2011), effective March 13, 2011
‘2
: cuontinvas 3.(5) The client understands that a portion of the compensation payable to the lawyer pursuant
to paragraph 4 above shall be paid to N/A and consents to this division of fees!
(6) If the attorney-client relationship is terminated before the conclusion of the case for any
reason, the attorney may seek payment for the work done and expenses advanced before the
termination. Whether the lawyer will receive any payment for the work done before the
termination, and the amount of any payment, will depend on the benefit to the client of the
services performed by the lawyer as well as the timing and circumstances of the termination
Such payment shall not exceed the lesser of (i) the fair value of the legal services rendered by
the lawyer, or (ii) the contingent fee to which the lawyer would have been entitled upon the
occurrence of the contingency. This paragraph does not give the lawyer any rights to
payment beyond those conferred by existing law
(7) SUCCESSOR COUNSEL PROVISION ______ Not Applicable
Payment of any fees owed to former counsel. The client should initial next to the option selected.
(i) ______ The lawyer is responsible for payment of former counsel's reasonable attorney's fees
and expenses and the cost of resolving any dispute between the client and prior counsel over fees
or expenses; or
Gi) _____ The client is responsible for payment of former counsel's reasonable attorney's fees
and expenses and the cost of resolving any dispute between the client and prior counsel over fees
or expenses.
This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct
adopted by the Massachusetts Supreme Judicial Court
WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT.
Signatures ofclient and. es wyer Witnesses to signatures
(Signature of client) 4 be (Tovclient)
(Signature of lawyer Gaolan
{To lawyer)
Cy
Date Ls
The Supreme Judicial ¢
fees between attorneys, Further, th
not pay any additional legal fees as a resitlt of any r
1/3 of the legal fee will be forwarded to
Adopted June 9. 1997. cffective January 1, 1998. Amended November 2. 2000, effective January 2.
2001 Amended December 22. 2010, offective March 15. 2011.
Lt
Client Initials KSB .EXHIBIT 2Notes in Barbacki, Nellie vs. William Mugg, MD File #: 14-000047
Date Author Category Topic
Note
06/19/2014 Candy Y.Novoa Note Phone Call
Marcia called in w/ a potential claim re: her mother Nellie... she spoke to Abby... she faxed in a few records/notes...
06/19/2014 Candy Y.Novoa Phone Call Meeting
Marcia calle din and spoke to Chris:
Marcia Barnacki called 561-389-7363 following up to her fax she sent to you. She had proposed to call you tomorrow
morning on a conference call with her siblings in her fax and wanted to know if that was going to go forward. I told her
you were out of the office and not expected back till tomorrow so I don’t think the call would be going forward but that
I'd check to make sure you weren’t going to call them from your cell phone while traveling and let her know. If not, she
would like to know when she could make appointment for phone conference in next few weeks — do you want to tell
her we will call her when review done and you have information for them or do you feel you want me to just make
appointment about 2 weeks out?
06/20/2014 Candy Y.Novoa = Phone Call Intake
Spoke with family regarding where to go from here - they will get the medical records from Holyoake, Dr. Mudd and
Healthsouth. They will also send us all of their contact information.
06/30/2014 Candy Y.Novoa Received Medical Records In.
Fr: Marcia (daughter)
copies of med records from 7/5/11 to 7/1/13 from Dr. Mugg.
Ltr stating that her sister Rosalind is working on getting all the updated med records from Holyoke Hospital as well
07/14/2014 Candy Y.Novoa Received medical records
Fr: Rosalind Brezinski
medical records of Nellie Barbacki
07/16/2014 Intern Phone Call Phone Call
Marcia Barbacki called in asking if the paperwork she sent in was received and when her brother could expect to get
_ the paperwork he was supposed to be signing. Her number is 561-389-7363
07/18/2014 Candy Y.Novoa Phone Call
I spoke to Marcia Barbacki.. The following is her brother contact info (POA) for Nelli to send him a CFA and med
auth... and ask him for a copy of the POA
Karl Barbacki (POA)
36 Brookline Ave
Holyoke, MA 01040
07/21/2014 Candy Y.Novoa mailed out
mailed out CFA and med auth to POA Karl Barbacki asking him to sign and send back to us in the SASE provided.. I
also asked him to send us a copy of the POA
Monday, May 09, 2016 TrialWorks Page 1 of 34Date Author Category Topic
Note
01/04/2016 Madeline Rentas = Received mail in
from : Suprerior Court
Order for entry of dismissal NISI.
States, the above entitled action came on before the court, Hon. Bertha D Josephson, and there uponwas reported
settled by counsel of record.
Hand written note from clerk Harry Jenkanowski, Jr. stating
"12-23-15 Order for Entry Of Dismissal, extended 60 days from 12-29-15, by agreement.
01/04/2016 Christine M.Mann Phone Call
vm left for Karl requesting he call to let us know if he is available to meet with attys this week or Jan 18 (MLK day)
01/04/2016 Christine M.Mann Status Review
need f/u call to Karl, will provide any docs, needs to come in.
01/04/2016 Madeline Rentas _— Received Green card
Green card # 7014 2120 0000 8090 8332
from : Karl Barbacki
re: ltr requesting settlement paperwork or questions.
01/05/2016 Christine M.Mann Phone Call
to: Karl
Advise we rec'd his letter, will provide any docs he wants but Abby wants him to come in.
01/06/2016 Christine M.Mann Status Review
Peter is working on reducing lien further, no answer from Karl to make appt to come in. email attys to see if f/u needed.
01/06/2016 Christine M.Mann Draft
draft letter to Barbacki's in ancillary for review by attorneys. Let me know.
01/06/2016 Madeline Rentas Received late entry
Received 1-5-16 via mail
Itr from karl barbacki
requesting a written statement number of hours spent, and files regarding any and all corespondence. Scanned in
correspondence
01/06/2016 Madeline Rentas Received Green card
Green card # 7014 2120 0000 8090 8325
received
re: settlement paperwork
01/06/2016 Christine M. Mann
Made changes per Abby to add paragraph re: medicare lien. Please review revised letter in ancillary. Thanks.
Monday, May 09, 2016 TrialWorks Page 26 of 34EXHIBIT 3ABIGAIL WILLIAMS & ASSOCIATES, LLC
Attorneys at Law
446 Main Street, 9" Floor, Worcester, Massachusetts 01608
Phone: (508) 795-1955
Fax: (508) 795-1710
di
Abigail R. Williams Janet E. Kaufman (1948-2010)
Erin A. Atwater
Peter E. Montgomery
January 8, 2016
VIA E- MAIL AND CERTIFIED MAIL
Karl Barbacki Marcia Barbacki Rosalind Brezinski
36 Brookline Avenue P.O. Box 6992 13 Pine Hill Road
Holyoke, MA 01040 W. Palm Beach, FL 33405 Easthampton, MA 01027
Re: Nellie Barbacki vs. William Mugg, MD
Hampshire Superior Court Civil Action No.: 1580CV00125
Dear Karl, Marcia, and Rosalind:
With your permission and assent, we began negotiating settlement of the above matter on
or about October 15, 2015. You authorized settlement of the above matter on or about October
19, 2015 for the amount of $250,000.00. This case was reported to the Court as settled and the
medical tribunal which was scheduled for November 18, 2015 was cancelled. The stipulation of
settlement was due to be filed with the Court on December 28, 2015. We have obtained an
extension to file these papers on or before February 26, 2016, or the Court may dismiss this case
without prejudice to refile within the applicable statute of limitations. In addition, Dr. Mugg and
his insurance company may pursue the right to enforce the settlement. Therefore, I cannot stress
to you strongly enough the importance of returning the signed General Release of All Claims,
Escrow and Indemnity Agreement, and Settlement Breakdown itemizing our fees, costs, and
liens as soon as possible. Another set of these documents is attached.
If you do not sign and return these documents, the Court will dismiss the case
automatically and Dr. Mugg or his insurance company may not have to make any
payment. While we cannot predict with certainty what Dr. Mugg or his insurer may do, one
option they have is to enforce the settlement agreement in Court. It is not uncommon for a
defendant who prevails on such a motion to be awarded costs, including attorney’s fees, for the
effort to enforce the agreement. In that scenario, your net proceeds from the settlement would be
further reduced.
“[A] Settlement Agreement is still binding, even if it is clear that a party had a change of
heart between the time she agreed to the terms of the settlement and when those terms were
reduced to writing.” McCune v. First Judicial Dist. Of Penn. Probation Department, 99 F. Supp.
2d 565, 566 (E.D. Pa. 2000). Further, “there is a presumption that a settlement entered into by an
attorney has been authorized by the attorney’s client[.]” Michaud v. Michaud, 932 F.2d 77, 80
(1 Cir. 1991). When our demand of $350,000 was rejected and the defendant counter-offered
$125,000, you authorized me to get the most that the defendant was willing to pay on the caseand to settle it. When the defendant made his last offer of $250,000, you authorized me to accept
it. We then contacted defense counsel, accepted the offer, and reported the matter settled to the
Court. The agreement became binding as soon as we contacted defense counsel. See, McCune.
supra.
As for the Medicare lien, we were able to negotiate the Medicare lien down from
$133,100.35 to $55,780.26. However, they continually update this amount and as of today it is
now $58,983.17. The lien may continue to fluctuate until Medicare is provided with the signed
copy of the settlement paperwork and a request for their final demand amount is made. We will
continue to request they reduce this amount further. Please note that currently Medicare is
seeking only a lien for the amount of their costs associated with this specific injury. Should your
mother pass away prior to the final demand being made to Medicare with the signed paperwork
attached, they will consider these funds an asset of your mother’s estate and will pursue a lien
against the estate for reimbursement of all of the funds Medicare has paid out on your mother’s
behalf for all medical care from the time of her enrollment to present, which will be a
significantly higher lien amount.
We have called Karl a number of times to see if you have questions and to ask him to
come to our office to discuss any questions any of you may have and to provide him with copies
of any documents he would like to review. In response to Karl’s letter dated January 2, 2016,
our firm does not work on an hourly basis and therefore does not track time spent on cases in that
manner. Our payment is contingent on the amount we are able to settle your case for as outlined
in the Contingent Fee Agreement dated September 24, 2014, which is attached for your
reference, In addition, Karl’s letter requests copies of my correspondence with experts with
whom I consulted regarding your mother’s case. My policy is to discuss all opinions with the
experts verbally prior to anything being put in writing. This is to avoid any negative opinions
becoming discoverable by defense attorneys. As you know, the experts that I discussed this
matter with were not able to give a favorable opinion linking the delay in diagnosis of your
mother’s stroke as the cause of your mother’s injuries and they opined that she would have had
the same injuries regardless of the delay and, therefore, we did not ask for written opinion letters
from them. This was also the reason that we would not have been able to provide the required
positive expert medical opinion letter required to pass the medical tribunal we were scheduled to
attend in November 2015, and why we pursued settlement to avoid this dilemma.
Please contact me upon receipt of this letter so that we can arrange for a meeting at my
office. I am available Monday, January 18, 2016, and would look forward to having you all
come in to discuss this matter and to finalize the settlement paperwork on that date or on another
alternate date/time convenient to you all.
Regards,
Qroduxcand
Abigail R. Williams
ARW/cmm
EnclosuresGENERAL RELEASE OF ALL CLAIMS
In full and complete consideration of the payment by Medical Professional Mutual
Insurance Company (d/b/a ProMutual) of the sum of TWO HUNDRED FIFTY THOUSAND
and 00/100 Dollars ($250,000.00), the receipt and sufficiency of which is hereby acknowledged,
I, NELLIE BARBACKI (the "Releasor"), on behalf of myself and my heirs, executors,
administrators and assigns, agree as follows:
1.0 Release and Discharge
11 I hereby remise, release and forever discharge WILLIAM MUGG, M_D.,
MEDICAL PROFESSIONAL MUTUAL INSURANCE COMPANY (“ProMutual”) and
PROSELECT INSURANCE COMPANY and each of their past, present, and future officers,
directors, partners, stockholders, attorneys, agents, servants, employers, employees, professional
corporations or groups with which they were, are or may be affiliated or employed, medical staff,
representatives, affiliates, parents, subsidiaries, insurers, reinsurers, heirs, executors,
administrators, predecessors and successors in interest, and assigns and all other persons, firms,
or corporations with whom any of the former have been, are now, or may hereafter be affiliated
(collectively, the "Releasees") from all claims, demands, actions, suits, damages, debts, causes of
action and liabilities of every name and nature, whether known or unknown, that I may now have
or have ever had, from the beginning of time to the date of this General Release, including but
not limited to claims, demands, actions, suits, damages, debts, causes of action and liabilities for
bodily injury, death, diminished life expectancy, personal injury, conscious pain and suffering,
emotional distress, loss of consortium or society, loss of use, loss of enjoyment of life, loss of
opportunity, loss of services, lack of informed consent, battery, vicarious liability for the acts or
omissions of any servants, employees, or actual or apparent agents, failure to settle, violations of
General Laws, c. 93A and 176D and any other unfair trade practices or claims settlement
615413.v1practices, compensatory damages, punitive and exemplary damages, fines, legal fees, interest
and costs.
1.2 T understand and affirm that by executing this General Release, I am releasing and
forever discharging the Releasees from all claims, demands, actions, suits, damages, debts,
causes of action and liabilities of every name and nature, whether known or unknown, including,
but in no way limited to those arising from or in any way related to or growing out of, any care
and treatment provided or that should have been provided by any or all of the Releasees to me.
The released and discharged claims, demands, actions, suits, damages, debts, causes of action
and liabilities include but are in no way limited to those claims which were asserted or could
have been asserted in Nellie Barbacki v. William Mugg, M.D., Hampshire County Superior
Court Civil Action No. 1580CV00125 (the “Suit”). I understand and affirm that any injuries,
damages or effects allegedly suffered by me may become worse in time, that I may have suffered
injuries, damages or effects that may not now appear, that may not now be known or suspected
and that there is no reason to know or suspect, and that new injuries, damages (including but not
limited to medical and other expenses that I may incur or effects may arise after the date of this
General Release. It is my intent to release any and all such claims, demands, actions, suits,
damages, debts, causes of action and liabilities against all Releasees, and I hereby acknowledge
that I have received adequate consideration for the release of all such claims, demands, actions,
suits, damages, debts, causes of action and liabilities even if they are unknown or unknowable at
the time of the signing of this General Release.
1.3 I further understand and affirm that this Release is not limited to claims, demands,
damages, actions, suits, debts, causes of action and liabilities arising from or related to or
growing out of, the care and treatment rendered to me on or about July 1, 2013, but is a general
Page 2 of 9release of all potential known and unknown claims. | also understand and affirm that by signing
this General Release, I am setting up a complete bar to any recovery at law or in equity for any
and all claims, demands, actions, suits, damages, debts, causes of action and liabilities against the
Releasees, and I am satisfied with the consideration received in exchange for this broad General
Release of the Releasees.
2.0 No Admission of Liability
I understand and agree that this General Release is to buy peace from further litigation
and is for the compromise of a disputed claim and that the settlement and payment referred to
herein are not and should not be construed as an admission of liability, negligence, damages or
fault or an admission that any of my assertions against any of the Releasees are true.
3.0 Liens and Medicare
3.1. I represent and warrant that I have not received benefits under, enrolled in or
otherwise participated in any government-sponsored or funded health insurance program,
including but not limited to Medicare, (including but not limited to any Medicare prescription
plan or any Medicare Advantage Plan), Medicaid, or any healthcare or health insurance program
for present or former members of the armed services or their relatives, at any time since July 1,
2013, other than as noted below.
3.2 I further warrant and represent after diligent inquiry that 1 am not aware of any
lien or right to repayment (collectively, a “lien”), governmental or otherwise, other than as
noted below, whether valid or invalid, that has been or could be asserted at any time by any
person or private or governmental entity for compensation or payment for any benefits, goods or
services provided to me including, without limitation, medical care or treatment, given or
rendered to me or that may be provided in the future. I acknowledge and agree that in the event
Page 3 of 9that any such liens are asserted or exist at any time, including without limitation any liens that
exist or arise under any federal, state or municipal statute or regulation or under any contract or
employee benefit plan, or any statutory or common law, the resolution of all issues concerning
such liens, including the payment of all valid liens, shall be my sole responsibility and shall not
be the responsibility of any of the Releasees. | further agree to defend and indemnify the
Releasees in the event that any lien or claim, whether at law or in equity, including without
limitation, any claim, liability or penalty under the Medicare Secondary Payer Act (42 U.S.C. §
1395y(b)(2) et seq.), 42 U.S.C. § 1395y(b)(3)(A) or any other law or regulation, is asserted
against any or all of them for compensation, damages or equitable relief for or relating to any
benefits, goods or services or payment thereof, including without limitation for medical care or
treatment, provided or that may be provided to me or in the event that any claim is asserted
arising out of the payment of the consideration set forth in this General Release.
3.3 I understand that as the result of the receipt of Medicare benefits by me that there
is a lien applicable to the funds being paid in consideration for this General Release. | further
understand and agree that due to the potential lien, $75,000 of the consideration being paid for
this release will not be paid to me by ProMutual, but instead will be held in escrow by Abigail
Williams & Associates, LLC pursuant to an executed Escrow and Indemnity Agreement among
me, Abigail Williams & Associates, LLC, as Escrow Agent, and ProMutual (the “Escrow
Agreement”) and will be disbursed pursuant to the terms of the Escrow Agreement.
3.4. Lunderstand and acknowledge that under the Medicare Secondary Payer Act, (42
U.S.C. Section 1395y(b)(2)(A) et seq.), Medicare coverage is secondary to certain sums or
benefits paid under liability insurance, such as the sums being paid in consideration for this
General Release. | further understand that pursuant to the Medicare Secondary Payer Act there
Page 4 of 9is a potential that in the event that Medicare may decline coverage for some or all of my future
medical expenses related to the incident alleged in the Suit against the Releasees, if I have not
exhausted an appropriate set aside of the proceeds of this General Release to pay for those future
medical expenses caused by such incident that otherwise would be paid by Medicare or have not
taken other steps approved by the Centers for Medicare and Medicaid Services (“CMS”) to
protect Medicare’s interests. I also understand that Medicare may demand reimbursement from
me if it pays any medical expenses that should have been paid out of the proceeds of this General
Release and I have not otherwise taken appropriate steps to protect Medicare’s interests with
respect to my future medical expenses. | acknowledge that this General Release shall remain in
full force and effect regardless of any effect that this General Release or the payment reflected in
it might have on my Medicare benefits or obligations to Medicare.
I further represent and warrant that: (i) I will take appropriate steps to protect Medicare’s
interests with respect to any future medical care or treatment that is or may be related to the
incident alleged in the Suit; and (ii) I will not file any claim with Medicare for any future
medical care or treatment that is or may be related to the incident alleged in the Suit, whether
directly or through any of my providers unless I have either exhausted the proceeds of the
settlement reflected in this General Release by payment of such care or treatment or have
otherwise taken one of the following steps for protecting Medicare’s interests: (a) establishment
of an appropriate Medicare Set Aside Account to pay for any of my future medical expenses that
are related to the incident alleged in the Suit; (b) payment to Medicare of an agreed-upon lump
sum payment; or (c) such other method to protect Medicare’s interests as has been agreed to or
authorized by CMS.
Page 5 of 940 Authority of Releasor
I represent and warrant that: (i) I am of legal age and have the sole right and exclusive
authority to execute this General Release; and (ii) I have not sold, assigned, transferred, or
otherwise conveyed any of the claims, demands, actions, suits, damages, debts, causes of action
or liabilities referred to in this General Release.
5.0 Representation of Comprehension of Document; No Inducements
5.1 | hereby acknowledge that I have carefully read this General Release, know and
understand its contents and have consulted with counsel of my choice concerning this General
Release or have had the opportunity to do so,
5.2 I sign this General Release voluntarily and freely, without duress and as my own
free act. This General Release reflects our entire agreement and no promise or inducement that
is not set forth in this General Release has been made to me. I have not relied upon advice or
representations of any of the Releasees or any of their representatives in executing this General
Release.
5.3. Il acknowledge and agree that because I have been given the opportunity
independently to review this General Release with my legal counsel and have had input on the
particular language of its provisions, this General Release shall not be subject to any rules of
interpretation providing for interpretation against the drafter.
6.0 Governing Law
This General Release shall be construed and interpreted in accordance with the laws of
the Commonwealth of Massachusetts.
Page 6 of 97.0 Severability
If a court of competent jurisdiction rules that any provision of this General Release is
invalid, illegal, or unenforceable under the law of the governing jurisdiction, then the validity,
legality and enforceability of the remaining provisions of this General Release shall not be
affected or impaired thereby. In the event of such a ruling, then the provision found to be
invalid, illegal or unenforceable shall deemed to be replaced by a valid, legal and enforceable
provision, if any, that is most nearly coextensive with such stricken provision as is consistent
with governing law, and this General Release shall be enforceable as thereby rewritten.
8.0 Headings
The headings in this General Release are for convenience only and shall not limit or
otherwise affect the terms and conditions of this General Release.
9.0 Confidentiality
I agree that I will not disclose and I represent and warrant that my attorneys have agreed
that they will not disclose to any third party the terms of this General Release or the settlement to
which it relates, unless such disclosure is required by law, is agreed to by the Releasees or is
otherwise permitted by this paragraph. I may disclose the terms of this General Release to my
attorneys, accountants or financial planners as reasonably necessary to obtain financial planning
or tax advice, but only if such person agrees not to disclose the terms of this General Release. If
such person makes such disclosure, it shall constitute non-compliance with this paragraph. My
attorneys may publish information about this settlement in verdict and settlement reporters and in
similar publications directed towards members of the legal profession, but only if all identifying
information, including but not limited to my name, the names of the Releasees, the attorneys for
Page 7 of 9the Releasees and the court and docket number of any suit filed by me against any of the
Releasees, is omitted. Non-compliance with the terms of this paragraph of this General Release
will render me liable.
10.0 Delivery of Dismissal with Prejudice
I shall promptly deliver to counsel for the Releasees an executed Stipulation of Dismissal,
with prejudice and without costs to any party, of the Suit and I hereby authorize counsel for the
Releasees to file such Stipulation of Dismissal with the Court. I will cooperate with the
Releasees and execute such further documents as may reasonably become necessary to secure
the dismissal with prejudice of the Suit against the Releasees.
SIGNED under seal this day of
NELLIE BARBACKI
As Power of Attorney For Nellie Barbacki
WITNESSED this _ day of _ , 2015 by:
Print Name of Witness:
Address of Witness:
Page 8 of 9and by:
Print Name of Witness:
Address of Witness:
Page 9 of 9ESCROW AND INDEMNITY AGREEMENT
The parties to this Escrow and Indemnity Agreement (“Escrow Agreement”) are Nellie
Barbacki, (the “Plaintiff’), Abigail Williams & Associates, LLC (the “Escrow Agent”), and
Medical Professional Mutual Insurance Company (“ProMutual”).
WHEREAS ProMutual has agreed to pay a total of Two Hundred Fifty Thousand
Dollars ($250,000) in consideration of a General Release of All Claims dated __
(the “Release”) signed by Plaintiff in settlement of all claims against ProMutual’s insured,
asserted in a suit brought by the Plaintiff against ProMutual’s insureds, in Hampshire Superior
Court, Civil Action No. 1580CV00125 (the “Suit”).
WHEREAS the federal Medicare program has a potential lien against Plaintiff's recovery
in the Suit or a potential right to be reimbursed or paid out of Plaintiff's recovery in the Suit for
various medical expenses paid by Medicare (the “Medicare lien”);
WHEREAS the precise amount, if any, that may be required to be paid to Medicare in
satisfaction of the Medicare lien cannot be determined at this time, pending the receipt of further
information from Medicare, but based upon the Medicare Secondary Payer Recovery Portal
information dated 11/6/2015 from the Medicare Secondary Payer Recovery Contractor for the
Centers for Medicare & Medicaid Services in no event is that amount expected to exceed
$56,145.09.
WHEREAS Plaintiff wishes that ProMutual make the $250,000 payment pursuant to the
Release notwithstanding the current uncertainty about the amount, if any, owed to Medicare; and
WHEREAS all parties intend that the proceeds of the settlement of the Suit after
deducting Plaintiff's costs and attorney’s fees to procure the settlement to the extent permitted by
applicable law, be applied to satisfy the Medicare lien.NOW THEREFORE, the parties to this Escrow Agreement agree and covenant as
follows:
1. ProMutual shall cause a check in the amount of $75,000 made payable to Abigail
Williams & Associates, LLC as Escrow Agent” to be delivered to the Escrow Agent. Upon
receipt of this check, the Escrow Agent shall deposit the funds in an interest bearing account (the
“Escrow Account”) in a federally-insured bank or savings and loan institution. The beneficiaries
of the Escrow Account shall be the Plaintiff, the Centers for Medicare & Medicaid Services
(“CMS”), as administrator of the federal Medicare program or such other entity that is
responsible for the administration of the Medicare benefits that were provided to or paid on
behalf of the Plaintiffs, (collectively, the “Medicare Administrator”) and ProMutual. The sums
in the Escrow Account shall be disbursed solely in accordance with the terms of this Escrow
Agreement.
2. The Escrow Agent shall not disburse any other funds held in the Escrow
Account until CMS or its authorized agent has notified Plaintiff or her counsel in writing of the
amount of any Medicare lien. Following receipt of such notice, the Escrow Agent shall cause the
Medicare lien to be timely paid in full from the funds in the Escrow Account. After the
Medicare lien has been paid in full, the Escrow Agent shall then disburse all remaining funds in
the Escrow Account, if any, to Plaintiff. By agreeing to pay the amount of the Medicare lien, as
determined by CMS or its authorized agent, Plaintiff is not waiving any rights that she may have
to contest any Medicare lien, in whole or in part. If any refund or return of any portion of any
sums paid to satisfy the Medicare lien is made to the Escrow Agent, the amount of such refund
or return shall be paid to the Plaintiff. If the sums in the Escrow Account are not sufficient to
satisfy any lien, Plaintiff shall pay any excess.3. Plaintiff agrees to defend and indemnify ProMutual, together with its employees,
officers, directors and agents, and all of the Releasees (as defined in the Release) and hold all of
them harmless from and against any and all claims, suits, actions, liabilities, fines, penalties,
costs or attorney’s fees arising in any manner from or relating to the payment of the sums set
forth in paragraph 1 above, any actions taken pursuant to this Escrow Agreement or Plaintiff's
failure to timely pay the Medicare lien or any other lien in favor of any person, government
agency or other entity applicable to Plaintiff's recovery in the suit, including but not limited to
any claims, suits, actions liabilities, fines, penalties, costs or attorney’s fees under the Medicare
Secondary Payer Act (42 U.S.C.$ 1395y(b)(2)et seq.) or any regulations under the Medicare
Secondary Payer Act. The Escrow Agent agrees to defend and indemnify ProMutual together
with its employees, officers, directors and agents, and all of the Releasees (as defined in the
Release) from and against any and all claims, suits, actions, liabilities, fines, penalties, costs or
attorney’s fees, including but not limited to any claims, suits, actions, liabilities, fines, penalties,
costs or attorney’s fees under the Medicare Secondary Payer Act (42 U.S.C. $1395y(b)(2) et
seq.) or any regulations under the Medicare Secondary Payer Act, arising from or relating to the
Escrow Agent’s failure to comply with the terms of this Escrow Agreement.
4. Plaintiff agrees and acknowledges that the payment of $75,000.00 to the Escrow
Agent as set forth in paragraph 1 above, together with payment of $175,000.00, reflecting the
balance of the monetary consideration set forth in the Release, the receipt of which is hereby
acknowledged, fully and finally satisfies all of ProMutual’s obligations under the Release, and
Plaintiff releases and forever discharges the Releasees (as defined in the Release) from any and
all claims, demands, obligations, actions, causes of action, rights, damages, costs, expenses andcompensation of any nature whatsoever arising out of ProMutual’s performance of its obligations
under the Release and the settlement reflected in the Release.
5. Other than as expressly set forth in this Escrow and Indemnity Agreement,
nothing in this Escrow and Indemnity Agreement shall negate or supersede any obligations or
rights of any party or any Releasee as set forth in the Release. Plaintiff and the Escrow Agent
agree that the obligations set forth in the Release to maintain the confidentiality of the Release
and the settlement reflected in it shall also apply to this Escrow and Indemnity Agreement.
6. This Escrow Agreement shall be binding on and inure to the benefit of each of the
Party’s respective heirs, executors, administrators, successors in interest and assigns.
7. This Escrow Agreement may be executed in multiple counterparts and shall
become effective immediately following execution by all of the parties.
APPROVED AND AGREED:
Plaintiff
Dated:
Witness: _ _ -
Print Name and Address of Witness:
ESCROW AGENT: _
Abigail Williams & Associates, LLC
Dated:
PROMUTUAL INSURANCE COMPANY:Abigail Williams & Associates, LLC
Attorneys at Law
PRELIMINARY SETTLEMENT BREAKDOWN
Barbacki, Nellie VS William Mugg, MD
Date of Injury: 07/02/2013
Settlement Amount: ${250,000.00
Paid by: Dr William Mugg
Attorney's Fee: 40.00% $}93333.33
(Please see attached copy of Contingent Fee Agreement)
Abigail Williams & Associates $ 93333.33
$ 0.00
$ 0.00
$ 93333.33
Sub Total: $4156,666.67
Costs Incurred by Firm:
Out of Pocket Expenses Incurred on Behalf $ 611.54
of Clients as of: January 8, 2016
(Please see attached itemization)
Payments Made to Lien Holders:
Medicare $ 58,983.17
Trust Check Number
Process of negotiating lien down $
Trust Check Number
Total Outstanding Lien Holders $ 59,594.71
2,
[59,594.71 |
$[97,071.96
Total costs, medical bills/liens to be paid out of settlement
Net Proceeds to Client(s)
Breakdown. I have reviewed this breakdown with my attorneys in person/via email/via phone (circle 1) and have
had an opportunity to ask questions and fully understand the contents of this Settlement Breakdown. I agree with
the amounts set forth in same. I understand that this settlement is full and final against William Mugg, M.D.Further, 1 give my permission to sign the final settlement check on my behalf for the sole purpose of
depositing same in Abigail Williams & Associates, P.C. IOLTA account to clear. | understand that I will be
notified as soon as the check has cleared and that either I will need to pick up___, mailed___ to given address by
return receipt. (Please check I and confirm address)
Furthermore, this acknowledges that Abigail Williams & Associates, P.C. will pay any statutory Medicare
and Mass Health liens at my request and that should other medical providers, governmental agencies, my insurer
or others seek reimbursement at a later date for payment for medical services, medical bills and/or liens, past or
future, hereafter, that such are my responsibility. (PLEASE INITIAL)
If you are signing this Settlement Statement as legal representative of an Estate, once payment of all
claimants has been completed, you are required to disburse all remaining assets to beneficiaries as prescribed by
the Massachusetts Probate Court and obtain receipts. By signing, I hereby acknowledge such responsibility as a
personal representative and agree to indemnify Abigail Williams & Associates, P.C. from any liability and/or
responsibility from my failure to make such disbursements.
Client Name‘CENTERS FOR MEDICARE & MEDICAID SAVIKS
COBR
ation of
Benata sa ecerary
December 24, 2015
268 2 MB 1.000
*** AUTO**MIXED ADC 720 R:268 T:4 P:23 PC:7 F:574402
ABGAIL WILLIAMS
446 MAIN ST 9TH FL
WORCESTER, MA 01608-2359
VofdPedagetagfeenefytenfegebeEtstad fog Ty ype yyfegfldagtet felt
December 24, 2015
268 2 MB 1.000
*** AUTO**MIXED ADC 720 R:268 T:4 P:23 PC:7 F:574402
NELLIE J BARBACKI
PO BOX 670
HOLYOKE, MA 01041-0670
Beneficiary Name: BARBACKI, NELLIE J
Medicare Number: 033013008D
Case Identification Number: 20152 79090 01118
Date of Incident: July 02, 2013
*COPY*
For Information Only
THIS IS NOT A BILL. DO NOT SEND PAYMENT AT THIS TIME.
Subject: Beneficiary Conditional Payment Letter
Dear NELLIE J BARBACKI:
If we know you have a representative for this matter, we are sending him/her a copy of this
letter. If you have any questions regarding this letter and are represented by an attorney or
other individual in this matter, you may wish to talk to your representative before contacting
us.
NGHP ¢ PO BOX 138832 e OKLAHOMA CITY, OK 73113
TINO
*462015352000036642*
SGLLCPNGHP:
Page | of 10
ENCOB
aedination of
CENTERS FOR METRCARE & MEDICA SERVES Benefits and Recovery
This letter follows a previous letter notifying you/your attorney of Medicare’s priority right of
recovery as defined under the Medicare Secondary Payer provisions. Conditional Medicare
payments for Medicare Part A and Part B Fee-for-Service claims have been made that we believe
are related to your case for the Date of Incident listed above. These conditional payments are
subject to reimbursement to Medicare from proceeds you may receive pursuant to a settlement,
judgment, award, or other payment.
As of the date of this letter, and based upon the available information, Medicare has identified
$58,983.17 in conditional payments that we believe are associated with your case. A listing of
Part A and Part B Fee-for-Service claims that comprise this total is enclosed with this letter;
please review this listing carefully and let us know as soon as possible if this list is incorrect or
inaccurate.
If you believe the enclosed itemization of conditional payments is incomplete, inaccurate, or that
you are not responsible for repaying Medicare for these payments, please provide written
documentation along with an explanation to support your dispute/rebuttal, to the address listed
below. Please include a description of the injury with your response. The following is a list of
documents (not all inclusive) that could assist in processing your dispute/rebuttal request:
Statute of limitations submitted by the insurer
Physicians statement or discharge summary
Independent medical exams
Medical records
Written statement defining similar injuries or pre-existing conditions
oe eee
Please also be advised that we are still investigating this case file to obtain any other outstanding
Medicare conditional payments; therefore, the enclosed listing of current conditional payments is
not final. We request that you/your attorney refrain from sending any monies to Medicare prior
to submission of settlement information and receipt of a demand/recovery calculation letter from
our office. This will eliminate underpayments, overpayments, and/or associated delays. Once the
case settles, please furnish our office with the information requested on the attached “Final
Settlement Detail Document”.
We have posted this conditional payment information under the “MyMSP” tab of the
wwwomymedicare gov website. The information at www.mymedicare. gov will be updated weekly
with any changes or newly processed claims. If you wish, you may track the medical expenses
that were paid by Medicare, and if you have an attorney or other representative, provide him/her
with this information. This may help you with finalizing your settlement.
NGHP « PO BOX 138832 * OKLAHOMA CITY, OK 73113 SGLLCPNGHP
Page 2 of 10_—.
(EMS COB‘R
CEMS cate
If you have any questions concerning this matter, please contact the Benefits Coordination &
Recovery Center (BCRC) by phone at 1-855-798-2627 (TTY/TDD: 1-855-797-2627 for the
hearing and speech impaired), in writing at the address below, or by fax to 405-869-3309. When
sending correspondence, please include the Beneficiary Name along with the Medicare and Case
Identification Numbers (shown above).
Sincerely,
BCRC
CC: ABGAIL WILLIAMS
Enclosures: Final Settlement Detail Document
Payment Summary Form
NGHP « PO BOX 138832 « OKLAHOMA CITY, OK 73113 SGLLCPNGHP
Page 3 of 10
*472015352000036642"(EMS
{CENTERS FOR MEDICARE & MEDICAID SERVICES
COBR
Soantination of
Bonalits and Recovery
Payment Summary Form
Report Number: RMCAN - 5-5
Contractor: NGHP Date:: 12/24/2015
Time: — 06:17:38
Page 5 of 10
Beneficiary Name: BARBACKI, NELLIE J Case ID: 20152 79090 O1118
Beneficiary HICN: 033013008D Case Type: L - Liability
Date of Incident: 07/02/2013
ros ten Hee Being mrotername ICD BR amas Tobne foal, Rants Cro
60 21319700464807NTA 0 05901 HOLYOKE MEDICAL ICD-9 43411, E8859, 07/03/2013 07/08/2013 $14,607.92 $14,029.21 $14,029.21
CENTER V1254, V142,
V1588, V4986,
V5865, V5869,
25000, 2724,
3319, 4019,
41401, 4280,
42831, 4359,
56400, 7810,
8260
*492015352000036642"
(MN60
20
20
40
CMS
COBR
Coortination of
CENTERS FOR MEDICARE & MEDICMO SERVICES Benefits and Recovery
21321400129904ALA 0 10101 HEALTHSOUTH Icp-9 V5789, V1254, 07/08/2013 07/29/2013 $30,101.99 $24,586.92
REHABILITATION 04149, 25000,
HOSPITAL OF 2724, 4019,
WESTERN MA 41401, 42731,
42830, 4380,
43811, 43820,
43882, 43883,
5990, 71590,
7818, 78194,
7840, 78720,
78820, 7906,
9160
21322101609007MAA 0 14201 = WINGATEATSOUTH _ICD-9 5789, 25000, 07/25/2013 07/31/2013 $2,341.70 $1,716.25
HADLEY REHAB & 4019, 41400,
SKILLED NURSING 42731, 43889,
7197, 72887,
78722
21325301839007MAA 0. 14201 = WINGATEATSOUTH —ICD-9 —_—-V5789, 25000, 08/01/2013 08/24/2013 $15,449.83 $12,287.71
HADLEY REHAB & 4019, 41400,
SKILLED NURSING 42731, 43889,
7197, 72887,
78722
21407001287407MER 0 14011 VNA & HOSPICE OF 1cD-9 V571, 25000, 1/16/2014 02/28/2014 ——$2,210.01_—-$3,729.18
COOLEY DICKINSON 43819, 7242,
72887, 7812
21528600708907MAR 0 15004 PROVIDENCE Icp-9 5990, V1302, 09/08/2015 09/08/2015 $0.00 $1,632.01
HOMECARE 5861, V5883,
25000, 4019,
41400, 42830
21529500521704NTA 0 05901 HOLYOKEMEDICAL ICD-10 ‘14891, Z5181, 10/13/2015 10/13/2015 $92.00 $90.57
CENTER Z7901
21530100657004NTA 0 05901 HOLYOKEMEDICAL —ICD-10 —RO789, E1165, 10/17/2015 10/18/2015 $7,431.50 $1,467.34
CENTER 12510, 1482,
15033, R531,
Z7901,
279899, Z8673
$24,586.92
$1,716.25
$12,287.71
$2,210.01
$0.00
$90.57
$1,467.34
Page 6 of 1040
40
7
7
7
Wl
7
W
7
81
CeEMS.
COB'R
Coordination of
Sanefite and Recovery
21530700488004NTA 0 05901 HOLYOKE MEDICAL ICD-10 1509, J90 30/19/2015 10/19/2015 $98.00 $14.08
CENTER
21531000880004NTA 0 05901 HOLYOKE MEDICAL ICD-10 1482, E119, 10/29/2015 10/29/2015 $393.00 $146.42
CENTER 110, 1509, J90,
R54
21532700920804NTA O 05901 HOLYOKE MEDICAL ICD-10 N390 11/05/2015 11/05/2015 $125.00 $33.53
CENTER
21533000140304NTA 0 05901 HOLYOKE MEDICAL ICD-10 14891, Z5181, 11/12/2015 11/12/2015 $92.00 $90.57
CENTER Z7901
700213186307290 001 14202 AMERICAN MEDICAL IcD-9 8290 07/03/2013 07/03/2013 $1,585.46 $342.74
RESPON,
700213186307290 002 14202 AMERICAN MEDICAL 1CD-9 8290 07/03/2013 07/03/2013 $21.35 $5.00
RESPON
700213196299590 001 14202 HSU, WEN C ICD-9 42731, 43491 07/03/2013 07/03/2013 $0.00 $0.00
700213196299590 002 14202 HSU, WEN C IcD-9 42731, 43491 07/03/2013 07/03/2013 $0.00 $0.00
709714065901333 ool 14212 AROSE, BRUCE ICD-9 8260 07/03/2013 07/03/2013 $33.00 $6.75
700213203498130 001 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/09/2013 07/09/2013 $393.00 $157.72
78079
700213203496820 001 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/12/2013. 07/12/2013 $144.00 $55.96
78079
700213203496820 002 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/15/2013 07/15/2013 $201.00 $80.65
78079
700213206078850 001 14202, ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/19/2013 07/19/2013 $144.00 $55.96
78079
700913228653260 001 14202 GLICKSTEIN, MARC ICD-9 43491 08/05/2013 08/05/2013 $0.00 $0.00
700913228653260 002 14202 GLICKSTEIN, MARC IcD-9 43491 08/05/2013 08/05/2013 $100.00 $20.33
700913238133830 001 14202 ELDER, ANN MARIAL — ICD-9 436, 4019, 08/21/2013 08/21/2013 $205.00 $71.32
42731
13275714044000 001 16003 LINCARE INC. ICD-9 43889 08/24/2013 08/24/2013 $358.81 $86.79
$14.08
$146.42
$33.53
$90.57
$342.74
$5.00
$0.00 aes
$0.00
$6.75
712 =
$55.96
6 eee
$55.96
$0.00
$20.33
$71.32
$86.79
Page 7 of 10
*4A2015352000036642*n
7
7
7
7
7
7
7
7
7
71
W
W
7
7
CMS
700215281780970
700215281780970
700215281780970
700215281780970
700215281780970
700215281780970
70091530668 1840
700215321858840
700215321858840
700215321858840
700215321858840
700215321858840
700215321858840
700215282601540
70021 5292691290
(CENTERS FOR MUDICARE & MEDICAID SERVICES Bonofits and Recovery
001 14212 SHETH, NIRAV R icD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00
4280, 4299
002 14212 SHETH, NIRAV R ICD-9 42731, 4019, 95/04/2015 05/04/2015 $0.00 $0.00
4280, 4299
003 14212, SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00
4280, 4299
004 14212 SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00
4280, 4299
005 14212 SHETH, NIRAV R TCD-9 42731, 4019, 05/04/2015 05/04/2015 $204.00 $62.72
4280, 4299
006 14212 SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00
4280, 4299
01 14212 NOYES, ELIZABETH J ICD-9 5990, 25000, 09/08/2015 09/08/2015 $100.00 $33.84
41400
001 14212 SHETH, NIRAV R IcD-9 42731, 25000, 09/11/2015 09/11/2015 $204.00 $63.03
4019, 4280
002 14212 SHETH, NIRAV R ICD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00
4019, 4280
003 14212 SHETH, NIRAV R ICD-9 42731,25000, 09/11/2015 09/11/2015 $0.00 $0.00
4019, 4280
004 14212 SHETH, NIRAVR ICcD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00
4019, 4280
005 14212 SHETH, NIRAV R ICD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00
4019, 4280
006 14212 SHETH, NIRAV R IcD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00
4019, 4280
001 14212 SYSTEM IcD-9 25000, V5861 09/25/2015 09/25/2015 $10.00 $4.22
COORDINATED SERV
001 14212 AMERICAN MEDICAL. ICD-10 RO79 10/16/2015 10/16/2015 $1,593.54 $352.30
RESPON
$62.72
$0.00
$33.84
$63.03
$0.00
$0.00
$0.00
$0.00
$0.00
$4.22
$352.30
Page 8 of 107
71
7
aA
81
7
7
W
71
71
81
71
nN
700215292691290.
750215299409310
750215299421070
700215303158610
700215303158610
700215303 158610
700215303158610
700215310016920
700215296650040
700215296650040
700215310016990
15309741342000
7009153020885 10
7009153020885 10
7009 15302088510
70091530668 1850
70091530668 1850
15320781328000
700215313462470
700215313462470
CMS
co
BR
Coordination of
‘ENTERS FOR MEDICARE & MEDICNO SERVICES Benefits and Recovery
002 14212 AMERICAN MEDICAL ICD-10 RO79 10/16/2015 10/16/2015 $74.13 $12.53
RESPON
001 13102 JEFFERSON ICD-10 15030, 14891 10/17/2015 10/17/2015 $221.00 $43.16
RADIOLOGY PC
001 13102 BLONDER, DAVID B. ICD-10 390 10/17/2015 10/17/2015 $35.00 $7.75
001 14212 HSU, WEN C ICD-10 RO789 10/17/2015 10/
Preview
EXHIBIT 1RECEIVED 95/30/2017 G1:48PM 6174264791 HALSTROM LAW OFFICES 85/30/2017 82:53PM 4135335733 BARBACKT PAGE 87 ABIGAIL WILLIAMS & ASSOCIATES, P.C. Attorneys at Law 446 Main Street, 9° Floor. itm Massachisens 01608 Phone: 5 Fax: (5081793 www medical-law.com Abigail R. Williams Sains Erin A. Auwater nadine 1) ASs Bil September 25, 2014 Mr. Karl Barbacki 36 Brookline Avenue Holyoke, MA 01040 Re: Nelli Barback Dear Mr. Barbacki Enclosed please find an original Contingent Fee Agreement form for your records. If you have any questions or concerns please feel free to contact us. Thank you. Yours truly. 7 ee ‘arfdy Y. Novoa, Legal Assistant to Abigail R. Williams, Esquire EnclosedABIGAIL WILLIAMS & ASSOCIATES, PC MEDICAL MALPRACTICE CONTINGENT FEE AGREE To be executed in Duplicate Date: Woy l i Phe Chent: Name, Address: 36 Brookline Avenue. Holvoke, MA 01040 Retains: Abigail Williams & Associates, PC 446 Main Street, 9" Floor Worcester, MA 01608 to perform the legal services mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence, (1) The claim. controversy, and other matters with reference to which the services are to be performed are: uly 2, 2013 (2) The contingency upon which compensation is to be paid is recovery of damages, whether by settlement, judgment or otherwise. (3) The lawyer agrees to advance, on behalf of the client, all out-of: pocket costs and expenses, The client is not to be liable to pay court costs and expenses of litigation, other than from amounts collected for the client by the lawyer (4) Compensation (including that of any associated counsel) to be paid to the lawyer by the client on the foregoing contingency shall be the following percentage of the gross amount collected, Forty percent (40%) of the first one hundred and fifty thousand dollars ($150,000.00) recovered; Thirty three and one third percent (33-1/3%) of the next one hundred and fifty thousand dollars ($150,000.00) recovered: Thirty percent (30%) of the next two hundred thousand dollars ($200,000.00) recovered; Twenty five percent (25%) of any amount by which the recovery exceeds five hundred thousand dollars ($500,000.00). The percentage shall be applied to the amount of the recovery not including any attorney's fees awarded by a court or included in a settlement. The lawyer's compensation shall be such attorney's fees or the amount determined by the percentage calculation described above, whichever is greater Adopted June 9, 1997, effective Jamary 1. 1998. Amended November 2, 2000, effective January 2, 2001 Amended December 22. 2011), effective March 13, 2011 ‘2 : cuontinvas 3.(5) The client understands that a portion of the compensation payable to the lawyer pursuant to paragraph 4 above shall be paid to N/A and consents to this division of fees! (6) If the attorney-client relationship is terminated before the conclusion of the case for any reason, the attorney may seek payment for the work done and expenses advanced before the termination. Whether the lawyer will receive any payment for the work done before the termination, and the amount of any payment, will depend on the benefit to the client of the services performed by the lawyer as well as the timing and circumstances of the termination Such payment shall not exceed the lesser of (i) the fair value of the legal services rendered by the lawyer, or (ii) the contingent fee to which the lawyer would have been entitled upon the occurrence of the contingency. This paragraph does not give the lawyer any rights to payment beyond those conferred by existing law (7) SUCCESSOR COUNSEL PROVISION ______ Not Applicable Payment of any fees owed to former counsel. The client should initial next to the option selected. (i) ______ The lawyer is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses; or Gi) _____ The client is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses. This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT. Signatures ofclient and. es wyer Witnesses to signatures (Signature of client) 4 be (Tovclient) (Signature of lawyer Gaolan {To lawyer) Cy Date Ls The Supreme Judicial ¢ fees between attorneys, Further, th not pay any additional legal fees as a resitlt of any r 1/3 of the legal fee will be forwarded to Adopted June 9. 1997. cffective January 1, 1998. Amended November 2. 2000, effective January 2. 2001 Amended December 22. 2010, offective March 15. 2011. Lt Client Initials KSB .EXHIBIT 2Notes in Barbacki, Nellie vs. William Mugg, MD File #: 14-000047 Date Author Category Topic Note 06/19/2014 Candy Y.Novoa Note Phone Call Marcia called in w/ a potential claim re: her mother Nellie... she spoke to Abby... she faxed in a few records/notes... 06/19/2014 Candy Y.Novoa Phone Call Meeting Marcia calle din and spoke to Chris: Marcia Barnacki called 561-389-7363 following up to her fax she sent to you. She had proposed to call you tomorrow morning on a conference call with her siblings in her fax and wanted to know if that was going to go forward. I told her you were out of the office and not expected back till tomorrow so I don’t think the call would be going forward but that I'd check to make sure you weren’t going to call them from your cell phone while traveling and let her know. If not, she would like to know when she could make appointment for phone conference in next few weeks — do you want to tell her we will call her when review done and you have information for them or do you feel you want me to just make appointment about 2 weeks out? 06/20/2014 Candy Y.Novoa = Phone Call Intake Spoke with family regarding where to go from here - they will get the medical records from Holyoake, Dr. Mudd and Healthsouth. They will also send us all of their contact information. 06/30/2014 Candy Y.Novoa Received Medical Records In. Fr: Marcia (daughter) copies of med records from 7/5/11 to 7/1/13 from Dr. Mugg. Ltr stating that her sister Rosalind is working on getting all the updated med records from Holyoke Hospital as well 07/14/2014 Candy Y.Novoa Received medical records Fr: Rosalind Brezinski medical records of Nellie Barbacki 07/16/2014 Intern Phone Call Phone Call Marcia Barbacki called in asking if the paperwork she sent in was received and when her brother could expect to get _ the paperwork he was supposed to be signing. Her number is 561-389-7363 07/18/2014 Candy Y.Novoa Phone Call I spoke to Marcia Barbacki.. The following is her brother contact info (POA) for Nelli to send him a CFA and med auth... and ask him for a copy of the POA Karl Barbacki (POA) 36 Brookline Ave Holyoke, MA 01040 07/21/2014 Candy Y.Novoa mailed out mailed out CFA and med auth to POA Karl Barbacki asking him to sign and send back to us in the SASE provided.. I also asked him to send us a copy of the POA Monday, May 09, 2016 TrialWorks Page 1 of 34Date Author Category Topic Note 01/04/2016 Madeline Rentas = Received mail in from : Suprerior Court Order for entry of dismissal NISI. States, the above entitled action came on before the court, Hon. Bertha D Josephson, and there uponwas reported settled by counsel of record. Hand written note from clerk Harry Jenkanowski, Jr. stating "12-23-15 Order for Entry Of Dismissal, extended 60 days from 12-29-15, by agreement. 01/04/2016 Christine M.Mann Phone Call vm left for Karl requesting he call to let us know if he is available to meet with attys this week or Jan 18 (MLK day) 01/04/2016 Christine M.Mann Status Review need f/u call to Karl, will provide any docs, needs to come in. 01/04/2016 Madeline Rentas _— Received Green card Green card # 7014 2120 0000 8090 8332 from : Karl Barbacki re: ltr requesting settlement paperwork or questions. 01/05/2016 Christine M.Mann Phone Call to: Karl Advise we rec'd his letter, will provide any docs he wants but Abby wants him to come in. 01/06/2016 Christine M.Mann Status Review Peter is working on reducing lien further, no answer from Karl to make appt to come in. email attys to see if f/u needed. 01/06/2016 Christine M.Mann Draft draft letter to Barbacki's in ancillary for review by attorneys. Let me know. 01/06/2016 Madeline Rentas Received late entry Received 1-5-16 via mail Itr from karl barbacki requesting a written statement number of hours spent, and files regarding any and all corespondence. Scanned in correspondence 01/06/2016 Madeline Rentas Received Green card Green card # 7014 2120 0000 8090 8325 received re: settlement paperwork 01/06/2016 Christine M. Mann Made changes per Abby to add paragraph re: medicare lien. Please review revised letter in ancillary. Thanks. Monday, May 09, 2016 TrialWorks Page 26 of 34EXHIBIT 3ABIGAIL WILLIAMS & ASSOCIATES, LLC Attorneys at Law 446 Main Street, 9" Floor, Worcester, Massachusetts 01608 Phone: (508) 795-1955 Fax: (508) 795-1710 di Abigail R. Williams Janet E. Kaufman (1948-2010) Erin A. Atwater Peter E. Montgomery January 8, 2016 VIA E- MAIL AND CERTIFIED MAIL Karl Barbacki Marcia Barbacki Rosalind Brezinski 36 Brookline Avenue P.O. Box 6992 13 Pine Hill Road Holyoke, MA 01040 W. Palm Beach, FL 33405 Easthampton, MA 01027 Re: Nellie Barbacki vs. William Mugg, MD Hampshire Superior Court Civil Action No.: 1580CV00125 Dear Karl, Marcia, and Rosalind: With your permission and assent, we began negotiating settlement of the above matter on or about October 15, 2015. You authorized settlement of the above matter on or about October 19, 2015 for the amount of $250,000.00. This case was reported to the Court as settled and the medical tribunal which was scheduled for November 18, 2015 was cancelled. The stipulation of settlement was due to be filed with the Court on December 28, 2015. We have obtained an extension to file these papers on or before February 26, 2016, or the Court may dismiss this case without prejudice to refile within the applicable statute of limitations. In addition, Dr. Mugg and his insurance company may pursue the right to enforce the settlement. Therefore, I cannot stress to you strongly enough the importance of returning the signed General Release of All Claims, Escrow and Indemnity Agreement, and Settlement Breakdown itemizing our fees, costs, and liens as soon as possible. Another set of these documents is attached. If you do not sign and return these documents, the Court will dismiss the case automatically and Dr. Mugg or his insurance company may not have to make any payment. While we cannot predict with certainty what Dr. Mugg or his insurer may do, one option they have is to enforce the settlement agreement in Court. It is not uncommon for a defendant who prevails on such a motion to be awarded costs, including attorney’s fees, for the effort to enforce the agreement. In that scenario, your net proceeds from the settlement would be further reduced. “[A] Settlement Agreement is still binding, even if it is clear that a party had a change of heart between the time she agreed to the terms of the settlement and when those terms were reduced to writing.” McCune v. First Judicial Dist. Of Penn. Probation Department, 99 F. Supp. 2d 565, 566 (E.D. Pa. 2000). Further, “there is a presumption that a settlement entered into by an attorney has been authorized by the attorney’s client[.]” Michaud v. Michaud, 932 F.2d 77, 80 (1 Cir. 1991). When our demand of $350,000 was rejected and the defendant counter-offered $125,000, you authorized me to get the most that the defendant was willing to pay on the caseand to settle it. When the defendant made his last offer of $250,000, you authorized me to accept it. We then contacted defense counsel, accepted the offer, and reported the matter settled to the Court. The agreement became binding as soon as we contacted defense counsel. See, McCune. supra. As for the Medicare lien, we were able to negotiate the Medicare lien down from $133,100.35 to $55,780.26. However, they continually update this amount and as of today it is now $58,983.17. The lien may continue to fluctuate until Medicare is provided with the signed copy of the settlement paperwork and a request for their final demand amount is made. We will continue to request they reduce this amount further. Please note that currently Medicare is seeking only a lien for the amount of their costs associated with this specific injury. Should your mother pass away prior to the final demand being made to Medicare with the signed paperwork attached, they will consider these funds an asset of your mother’s estate and will pursue a lien against the estate for reimbursement of all of the funds Medicare has paid out on your mother’s behalf for all medical care from the time of her enrollment to present, which will be a significantly higher lien amount. We have called Karl a number of times to see if you have questions and to ask him to come to our office to discuss any questions any of you may have and to provide him with copies of any documents he would like to review. In response to Karl’s letter dated January 2, 2016, our firm does not work on an hourly basis and therefore does not track time spent on cases in that manner. Our payment is contingent on the amount we are able to settle your case for as outlined in the Contingent Fee Agreement dated September 24, 2014, which is attached for your reference, In addition, Karl’s letter requests copies of my correspondence with experts with whom I consulted regarding your mother’s case. My policy is to discuss all opinions with the experts verbally prior to anything being put in writing. This is to avoid any negative opinions becoming discoverable by defense attorneys. As you know, the experts that I discussed this matter with were not able to give a favorable opinion linking the delay in diagnosis of your mother’s stroke as the cause of your mother’s injuries and they opined that she would have had the same injuries regardless of the delay and, therefore, we did not ask for written opinion letters from them. This was also the reason that we would not have been able to provide the required positive expert medical opinion letter required to pass the medical tribunal we were scheduled to attend in November 2015, and why we pursued settlement to avoid this dilemma. Please contact me upon receipt of this letter so that we can arrange for a meeting at my office. I am available Monday, January 18, 2016, and would look forward to having you all come in to discuss this matter and to finalize the settlement paperwork on that date or on another alternate date/time convenient to you all. Regards, Qroduxcand Abigail R. Williams ARW/cmm EnclosuresGENERAL RELEASE OF ALL CLAIMS In full and complete consideration of the payment by Medical Professional Mutual Insurance Company (d/b/a ProMutual) of the sum of TWO HUNDRED FIFTY THOUSAND and 00/100 Dollars ($250,000.00), the receipt and sufficiency of which is hereby acknowledged, I, NELLIE BARBACKI (the "Releasor"), on behalf of myself and my heirs, executors, administrators and assigns, agree as follows: 1.0 Release and Discharge 11 I hereby remise, release and forever discharge WILLIAM MUGG, M_D., MEDICAL PROFESSIONAL MUTUAL INSURANCE COMPANY (“ProMutual”) and PROSELECT INSURANCE COMPANY and each of their past, present, and future officers, directors, partners, stockholders, attorneys, agents, servants, employers, employees, professional corporations or groups with which they were, are or may be affiliated or employed, medical staff, representatives, affiliates, parents, subsidiaries, insurers, reinsurers, heirs, executors, administrators, predecessors and successors in interest, and assigns and all other persons, firms, or corporations with whom any of the former have been, are now, or may hereafter be affiliated (collectively, the "Releasees") from all claims, demands, actions, suits, damages, debts, causes of action and liabilities of every name and nature, whether known or unknown, that I may now have or have ever had, from the beginning of time to the date of this General Release, including but not limited to claims, demands, actions, suits, damages, debts, causes of action and liabilities for bodily injury, death, diminished life expectancy, personal injury, conscious pain and suffering, emotional distress, loss of consortium or society, loss of use, loss of enjoyment of life, loss of opportunity, loss of services, lack of informed consent, battery, vicarious liability for the acts or omissions of any servants, employees, or actual or apparent agents, failure to settle, violations of General Laws, c. 93A and 176D and any other unfair trade practices or claims settlement 615413.v1practices, compensatory damages, punitive and exemplary damages, fines, legal fees, interest and costs. 1.2 T understand and affirm that by executing this General Release, I am releasing and forever discharging the Releasees from all claims, demands, actions, suits, damages, debts, causes of action and liabilities of every name and nature, whether known or unknown, including, but in no way limited to those arising from or in any way related to or growing out of, any care and treatment provided or that should have been provided by any or all of the Releasees to me. The released and discharged claims, demands, actions, suits, damages, debts, causes of action and liabilities include but are in no way limited to those claims which were asserted or could have been asserted in Nellie Barbacki v. William Mugg, M.D., Hampshire County Superior Court Civil Action No. 1580CV00125 (the “Suit”). I understand and affirm that any injuries, damages or effects allegedly suffered by me may become worse in time, that I may have suffered injuries, damages or effects that may not now appear, that may not now be known or suspected and that there is no reason to know or suspect, and that new injuries, damages (including but not limited to medical and other expenses that I may incur or effects may arise after the date of this General Release. It is my intent to release any and all such claims, demands, actions, suits, damages, debts, causes of action and liabilities against all Releasees, and I hereby acknowledge that I have received adequate consideration for the release of all such claims, demands, actions, suits, damages, debts, causes of action and liabilities even if they are unknown or unknowable at the time of the signing of this General Release. 1.3 I further understand and affirm that this Release is not limited to claims, demands, damages, actions, suits, debts, causes of action and liabilities arising from or related to or growing out of, the care and treatment rendered to me on or about July 1, 2013, but is a general Page 2 of 9release of all potential known and unknown claims. | also understand and affirm that by signing this General Release, I am setting up a complete bar to any recovery at law or in equity for any and all claims, demands, actions, suits, damages, debts, causes of action and liabilities against the Releasees, and I am satisfied with the consideration received in exchange for this broad General Release of the Releasees. 2.0 No Admission of Liability I understand and agree that this General Release is to buy peace from further litigation and is for the compromise of a disputed claim and that the settlement and payment referred to herein are not and should not be construed as an admission of liability, negligence, damages or fault or an admission that any of my assertions against any of the Releasees are true. 3.0 Liens and Medicare 3.1. I represent and warrant that I have not received benefits under, enrolled in or otherwise participated in any government-sponsored or funded health insurance program, including but not limited to Medicare, (including but not limited to any Medicare prescription plan or any Medicare Advantage Plan), Medicaid, or any healthcare or health insurance program for present or former members of the armed services or their relatives, at any time since July 1, 2013, other than as noted below. 3.2 I further warrant and represent after diligent inquiry that 1 am not aware of any lien or right to repayment (collectively, a “lien”), governmental or otherwise, other than as noted below, whether valid or invalid, that has been or could be asserted at any time by any person or private or governmental entity for compensation or payment for any benefits, goods or services provided to me including, without limitation, medical care or treatment, given or rendered to me or that may be provided in the future. I acknowledge and agree that in the event Page 3 of 9that any such liens are asserted or exist at any time, including without limitation any liens that exist or arise under any federal, state or municipal statute or regulation or under any contract or employee benefit plan, or any statutory or common law, the resolution of all issues concerning such liens, including the payment of all valid liens, shall be my sole responsibility and shall not be the responsibility of any of the Releasees. | further agree to defend and indemnify the Releasees in the event that any lien or claim, whether at law or in equity, including without limitation, any claim, liability or penalty under the Medicare Secondary Payer Act (42 U.S.C. § 1395y(b)(2) et seq.), 42 U.S.C. § 1395y(b)(3)(A) or any other law or regulation, is asserted against any or all of them for compensation, damages or equitable relief for or relating to any benefits, goods or services or payment thereof, including without limitation for medical care or treatment, provided or that may be provided to me or in the event that any claim is asserted arising out of the payment of the consideration set forth in this General Release. 3.3 I understand that as the result of the receipt of Medicare benefits by me that there is a lien applicable to the funds being paid in consideration for this General Release. | further understand and agree that due to the potential lien, $75,000 of the consideration being paid for this release will not be paid to me by ProMutual, but instead will be held in escrow by Abigail Williams & Associates, LLC pursuant to an executed Escrow and Indemnity Agreement among me, Abigail Williams & Associates, LLC, as Escrow Agent, and ProMutual (the “Escrow Agreement”) and will be disbursed pursuant to the terms of the Escrow Agreement. 3.4. Lunderstand and acknowledge that under the Medicare Secondary Payer Act, (42 U.S.C. Section 1395y(b)(2)(A) et seq.), Medicare coverage is secondary to certain sums or benefits paid under liability insurance, such as the sums being paid in consideration for this General Release. | further understand that pursuant to the Medicare Secondary Payer Act there Page 4 of 9is a potential that in the event that Medicare may decline coverage for some or all of my future medical expenses related to the incident alleged in the Suit against the Releasees, if I have not exhausted an appropriate set aside of the proceeds of this General Release to pay for those future medical expenses caused by such incident that otherwise would be paid by Medicare or have not taken other steps approved by the Centers for Medicare and Medicaid Services (“CMS”) to protect Medicare’s interests. I also understand that Medicare may demand reimbursement from me if it pays any medical expenses that should have been paid out of the proceeds of this General Release and I have not otherwise taken appropriate steps to protect Medicare’s interests with respect to my future medical expenses. | acknowledge that this General Release shall remain in full force and effect regardless of any effect that this General Release or the payment reflected in it might have on my Medicare benefits or obligations to Medicare. I further represent and warrant that: (i) I will take appropriate steps to protect Medicare’s interests with respect to any future medical care or treatment that is or may be related to the incident alleged in the Suit; and (ii) I will not file any claim with Medicare for any future medical care or treatment that is or may be related to the incident alleged in the Suit, whether directly or through any of my providers unless I have either exhausted the proceeds of the settlement reflected in this General Release by payment of such care or treatment or have otherwise taken one of the following steps for protecting Medicare’s interests: (a) establishment of an appropriate Medicare Set Aside Account to pay for any of my future medical expenses that are related to the incident alleged in the Suit; (b) payment to Medicare of an agreed-upon lump sum payment; or (c) such other method to protect Medicare’s interests as has been agreed to or authorized by CMS. Page 5 of 940 Authority of Releasor I represent and warrant that: (i) I am of legal age and have the sole right and exclusive authority to execute this General Release; and (ii) I have not sold, assigned, transferred, or otherwise conveyed any of the claims, demands, actions, suits, damages, debts, causes of action or liabilities referred to in this General Release. 5.0 Representation of Comprehension of Document; No Inducements 5.1 | hereby acknowledge that I have carefully read this General Release, know and understand its contents and have consulted with counsel of my choice concerning this General Release or have had the opportunity to do so, 5.2 I sign this General Release voluntarily and freely, without duress and as my own free act. This General Release reflects our entire agreement and no promise or inducement that is not set forth in this General Release has been made to me. I have not relied upon advice or representations of any of the Releasees or any of their representatives in executing this General Release. 5.3. Il acknowledge and agree that because I have been given the opportunity independently to review this General Release with my legal counsel and have had input on the particular language of its provisions, this General Release shall not be subject to any rules of interpretation providing for interpretation against the drafter. 6.0 Governing Law This General Release shall be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts. Page 6 of 97.0 Severability If a court of competent jurisdiction rules that any provision of this General Release is invalid, illegal, or unenforceable under the law of the governing jurisdiction, then the validity, legality and enforceability of the remaining provisions of this General Release shall not be affected or impaired thereby. In the event of such a ruling, then the provision found to be invalid, illegal or unenforceable shall deemed to be replaced by a valid, legal and enforceable provision, if any, that is most nearly coextensive with such stricken provision as is consistent with governing law, and this General Release shall be enforceable as thereby rewritten. 8.0 Headings The headings in this General Release are for convenience only and shall not limit or otherwise affect the terms and conditions of this General Release. 9.0 Confidentiality I agree that I will not disclose and I represent and warrant that my attorneys have agreed that they will not disclose to any third party the terms of this General Release or the settlement to which it relates, unless such disclosure is required by law, is agreed to by the Releasees or is otherwise permitted by this paragraph. I may disclose the terms of this General Release to my attorneys, accountants or financial planners as reasonably necessary to obtain financial planning or tax advice, but only if such person agrees not to disclose the terms of this General Release. If such person makes such disclosure, it shall constitute non-compliance with this paragraph. My attorneys may publish information about this settlement in verdict and settlement reporters and in similar publications directed towards members of the legal profession, but only if all identifying information, including but not limited to my name, the names of the Releasees, the attorneys for Page 7 of 9the Releasees and the court and docket number of any suit filed by me against any of the Releasees, is omitted. Non-compliance with the terms of this paragraph of this General Release will render me liable. 10.0 Delivery of Dismissal with Prejudice I shall promptly deliver to counsel for the Releasees an executed Stipulation of Dismissal, with prejudice and without costs to any party, of the Suit and I hereby authorize counsel for the Releasees to file such Stipulation of Dismissal with the Court. I will cooperate with the Releasees and execute such further documents as may reasonably become necessary to secure the dismissal with prejudice of the Suit against the Releasees. SIGNED under seal this day of NELLIE BARBACKI As Power of Attorney For Nellie Barbacki WITNESSED this _ day of _ , 2015 by: Print Name of Witness: Address of Witness: Page 8 of 9and by: Print Name of Witness: Address of Witness: Page 9 of 9ESCROW AND INDEMNITY AGREEMENT The parties to this Escrow and Indemnity Agreement (“Escrow Agreement”) are Nellie Barbacki, (the “Plaintiff’), Abigail Williams & Associates, LLC (the “Escrow Agent”), and Medical Professional Mutual Insurance Company (“ProMutual”). WHEREAS ProMutual has agreed to pay a total of Two Hundred Fifty Thousand Dollars ($250,000) in consideration of a General Release of All Claims dated __ (the “Release”) signed by Plaintiff in settlement of all claims against ProMutual’s insured, asserted in a suit brought by the Plaintiff against ProMutual’s insureds, in Hampshire Superior Court, Civil Action No. 1580CV00125 (the “Suit”). WHEREAS the federal Medicare program has a potential lien against Plaintiff's recovery in the Suit or a potential right to be reimbursed or paid out of Plaintiff's recovery in the Suit for various medical expenses paid by Medicare (the “Medicare lien”); WHEREAS the precise amount, if any, that may be required to be paid to Medicare in satisfaction of the Medicare lien cannot be determined at this time, pending the receipt of further information from Medicare, but based upon the Medicare Secondary Payer Recovery Portal information dated 11/6/2015 from the Medicare Secondary Payer Recovery Contractor for the Centers for Medicare & Medicaid Services in no event is that amount expected to exceed $56,145.09. WHEREAS Plaintiff wishes that ProMutual make the $250,000 payment pursuant to the Release notwithstanding the current uncertainty about the amount, if any, owed to Medicare; and WHEREAS all parties intend that the proceeds of the settlement of the Suit after deducting Plaintiff's costs and attorney’s fees to procure the settlement to the extent permitted by applicable law, be applied to satisfy the Medicare lien.NOW THEREFORE, the parties to this Escrow Agreement agree and covenant as follows: 1. ProMutual shall cause a check in the amount of $75,000 made payable to Abigail Williams & Associates, LLC as Escrow Agent” to be delivered to the Escrow Agent. Upon receipt of this check, the Escrow Agent shall deposit the funds in an interest bearing account (the “Escrow Account”) in a federally-insured bank or savings and loan institution. The beneficiaries of the Escrow Account shall be the Plaintiff, the Centers for Medicare & Medicaid Services (“CMS”), as administrator of the federal Medicare program or such other entity that is responsible for the administration of the Medicare benefits that were provided to or paid on behalf of the Plaintiffs, (collectively, the “Medicare Administrator”) and ProMutual. The sums in the Escrow Account shall be disbursed solely in accordance with the terms of this Escrow Agreement. 2. The Escrow Agent shall not disburse any other funds held in the Escrow Account until CMS or its authorized agent has notified Plaintiff or her counsel in writing of the amount of any Medicare lien. Following receipt of such notice, the Escrow Agent shall cause the Medicare lien to be timely paid in full from the funds in the Escrow Account. After the Medicare lien has been paid in full, the Escrow Agent shall then disburse all remaining funds in the Escrow Account, if any, to Plaintiff. By agreeing to pay the amount of the Medicare lien, as determined by CMS or its authorized agent, Plaintiff is not waiving any rights that she may have to contest any Medicare lien, in whole or in part. If any refund or return of any portion of any sums paid to satisfy the Medicare lien is made to the Escrow Agent, the amount of such refund or return shall be paid to the Plaintiff. If the sums in the Escrow Account are not sufficient to satisfy any lien, Plaintiff shall pay any excess.3. Plaintiff agrees to defend and indemnify ProMutual, together with its employees, officers, directors and agents, and all of the Releasees (as defined in the Release) and hold all of them harmless from and against any and all claims, suits, actions, liabilities, fines, penalties, costs or attorney’s fees arising in any manner from or relating to the payment of the sums set forth in paragraph 1 above, any actions taken pursuant to this Escrow Agreement or Plaintiff's failure to timely pay the Medicare lien or any other lien in favor of any person, government agency or other entity applicable to Plaintiff's recovery in the suit, including but not limited to any claims, suits, actions liabilities, fines, penalties, costs or attorney’s fees under the Medicare Secondary Payer Act (42 U.S.C.$ 1395y(b)(2)et seq.) or any regulations under the Medicare Secondary Payer Act. The Escrow Agent agrees to defend and indemnify ProMutual together with its employees, officers, directors and agents, and all of the Releasees (as defined in the Release) from and against any and all claims, suits, actions, liabilities, fines, penalties, costs or attorney’s fees, including but not limited to any claims, suits, actions, liabilities, fines, penalties, costs or attorney’s fees under the Medicare Secondary Payer Act (42 U.S.C. $1395y(b)(2) et seq.) or any regulations under the Medicare Secondary Payer Act, arising from or relating to the Escrow Agent’s failure to comply with the terms of this Escrow Agreement. 4. Plaintiff agrees and acknowledges that the payment of $75,000.00 to the Escrow Agent as set forth in paragraph 1 above, together with payment of $175,000.00, reflecting the balance of the monetary consideration set forth in the Release, the receipt of which is hereby acknowledged, fully and finally satisfies all of ProMutual’s obligations under the Release, and Plaintiff releases and forever discharges the Releasees (as defined in the Release) from any and all claims, demands, obligations, actions, causes of action, rights, damages, costs, expenses andcompensation of any nature whatsoever arising out of ProMutual’s performance of its obligations under the Release and the settlement reflected in the Release. 5. Other than as expressly set forth in this Escrow and Indemnity Agreement, nothing in this Escrow and Indemnity Agreement shall negate or supersede any obligations or rights of any party or any Releasee as set forth in the Release. Plaintiff and the Escrow Agent agree that the obligations set forth in the Release to maintain the confidentiality of the Release and the settlement reflected in it shall also apply to this Escrow and Indemnity Agreement. 6. This Escrow Agreement shall be binding on and inure to the benefit of each of the Party’s respective heirs, executors, administrators, successors in interest and assigns. 7. This Escrow Agreement may be executed in multiple counterparts and shall become effective immediately following execution by all of the parties. APPROVED AND AGREED: Plaintiff Dated: Witness: _ _ - Print Name and Address of Witness: ESCROW AGENT: _ Abigail Williams & Associates, LLC Dated: PROMUTUAL INSURANCE COMPANY:Abigail Williams & Associates, LLC Attorneys at Law PRELIMINARY SETTLEMENT BREAKDOWN Barbacki, Nellie VS William Mugg, MD Date of Injury: 07/02/2013 Settlement Amount: ${250,000.00 Paid by: Dr William Mugg Attorney's Fee: 40.00% $}93333.33 (Please see attached copy of Contingent Fee Agreement) Abigail Williams & Associates $ 93333.33 $ 0.00 $ 0.00 $ 93333.33 Sub Total: $4156,666.67 Costs Incurred by Firm: Out of Pocket Expenses Incurred on Behalf $ 611.54 of Clients as of: January 8, 2016 (Please see attached itemization) Payments Made to Lien Holders: Medicare $ 58,983.17 Trust Check Number Process of negotiating lien down $ Trust Check Number Total Outstanding Lien Holders $ 59,594.71 2, [59,594.71 | $[97,071.96 Total costs, medical bills/liens to be paid out of settlement Net Proceeds to Client(s) Breakdown. I have reviewed this breakdown with my attorneys in person/via email/via phone (circle 1) and have had an opportunity to ask questions and fully understand the contents of this Settlement Breakdown. I agree with the amounts set forth in same. I understand that this settlement is full and final against William Mugg, M.D.Further, 1 give my permission to sign the final settlement check on my behalf for the sole purpose of depositing same in Abigail Williams & Associates, P.C. IOLTA account to clear. | understand that I will be notified as soon as the check has cleared and that either I will need to pick up___, mailed___ to given address by return receipt. (Please check I and confirm address) Furthermore, this acknowledges that Abigail Williams & Associates, P.C. will pay any statutory Medicare and Mass Health liens at my request and that should other medical providers, governmental agencies, my insurer or others seek reimbursement at a later date for payment for medical services, medical bills and/or liens, past or future, hereafter, that such are my responsibility. (PLEASE INITIAL) If you are signing this Settlement Statement as legal representative of an Estate, once payment of all claimants has been completed, you are required to disburse all remaining assets to beneficiaries as prescribed by the Massachusetts Probate Court and obtain receipts. By signing, I hereby acknowledge such responsibility as a personal representative and agree to indemnify Abigail Williams & Associates, P.C. from any liability and/or responsibility from my failure to make such disbursements. Client Name‘CENTERS FOR MEDICARE & MEDICAID SAVIKS COBR ation of Benata sa ecerary December 24, 2015 268 2 MB 1.000 *** AUTO**MIXED ADC 720 R:268 T:4 P:23 PC:7 F:574402 ABGAIL WILLIAMS 446 MAIN ST 9TH FL WORCESTER, MA 01608-2359 VofdPedagetagfeenefytenfegebeEtstad fog Ty ype yyfegfldagtet felt December 24, 2015 268 2 MB 1.000 *** AUTO**MIXED ADC 720 R:268 T:4 P:23 PC:7 F:574402 NELLIE J BARBACKI PO BOX 670 HOLYOKE, MA 01041-0670 Beneficiary Name: BARBACKI, NELLIE J Medicare Number: 033013008D Case Identification Number: 20152 79090 01118 Date of Incident: July 02, 2013 *COPY* For Information Only THIS IS NOT A BILL. DO NOT SEND PAYMENT AT THIS TIME. Subject: Beneficiary Conditional Payment Letter Dear NELLIE J BARBACKI: If we know you have a representative for this matter, we are sending him/her a copy of this letter. If you have any questions regarding this letter and are represented by an attorney or other individual in this matter, you may wish to talk to your representative before contacting us. NGHP ¢ PO BOX 138832 e OKLAHOMA CITY, OK 73113 TINO *462015352000036642* SGLLCPNGHP: Page | of 10 ENCOB aedination of CENTERS FOR METRCARE & MEDICA SERVES Benefits and Recovery This letter follows a previous letter notifying you/your attorney of Medicare’s priority right of recovery as defined under the Medicare Secondary Payer provisions. Conditional Medicare payments for Medicare Part A and Part B Fee-for-Service claims have been made that we believe are related to your case for the Date of Incident listed above. These conditional payments are subject to reimbursement to Medicare from proceeds you may receive pursuant to a settlement, judgment, award, or other payment. As of the date of this letter, and based upon the available information, Medicare has identified $58,983.17 in conditional payments that we believe are associated with your case. A listing of Part A and Part B Fee-for-Service claims that comprise this total is enclosed with this letter; please review this listing carefully and let us know as soon as possible if this list is incorrect or inaccurate. If you believe the enclosed itemization of conditional payments is incomplete, inaccurate, or that you are not responsible for repaying Medicare for these payments, please provide written documentation along with an explanation to support your dispute/rebuttal, to the address listed below. Please include a description of the injury with your response. The following is a list of documents (not all inclusive) that could assist in processing your dispute/rebuttal request: Statute of limitations submitted by the insurer Physicians statement or discharge summary Independent medical exams Medical records Written statement defining similar injuries or pre-existing conditions oe eee Please also be advised that we are still investigating this case file to obtain any other outstanding Medicare conditional payments; therefore, the enclosed listing of current conditional payments is not final. We request that you/your attorney refrain from sending any monies to Medicare prior to submission of settlement information and receipt of a demand/recovery calculation letter from our office. This will eliminate underpayments, overpayments, and/or associated delays. Once the case settles, please furnish our office with the information requested on the attached “Final Settlement Detail Document”. We have posted this conditional payment information under the “MyMSP” tab of the wwwomymedicare gov website. The information at www.mymedicare. gov will be updated weekly with any changes or newly processed claims. If you wish, you may track the medical expenses that were paid by Medicare, and if you have an attorney or other representative, provide him/her with this information. This may help you with finalizing your settlement. NGHP « PO BOX 138832 * OKLAHOMA CITY, OK 73113 SGLLCPNGHP Page 2 of 10_—. (EMS COB‘R CEMS cate If you have any questions concerning this matter, please contact the Benefits Coordination & Recovery Center (BCRC) by phone at 1-855-798-2627 (TTY/TDD: 1-855-797-2627 for the hearing and speech impaired), in writing at the address below, or by fax to 405-869-3309. When sending correspondence, please include the Beneficiary Name along with the Medicare and Case Identification Numbers (shown above). Sincerely, BCRC CC: ABGAIL WILLIAMS Enclosures: Final Settlement Detail Document Payment Summary Form NGHP « PO BOX 138832 « OKLAHOMA CITY, OK 73113 SGLLCPNGHP Page 3 of 10 *472015352000036642"(EMS {CENTERS FOR MEDICARE & MEDICAID SERVICES COBR Soantination of Bonalits and Recovery Payment Summary Form Report Number: RMCAN - 5-5 Contractor: NGHP Date:: 12/24/2015 Time: — 06:17:38 Page 5 of 10 Beneficiary Name: BARBACKI, NELLIE J Case ID: 20152 79090 O1118 Beneficiary HICN: 033013008D Case Type: L - Liability Date of Incident: 07/02/2013 ros ten Hee Being mrotername ICD BR amas Tobne foal, Rants Cro 60 21319700464807NTA 0 05901 HOLYOKE MEDICAL ICD-9 43411, E8859, 07/03/2013 07/08/2013 $14,607.92 $14,029.21 $14,029.21 CENTER V1254, V142, V1588, V4986, V5865, V5869, 25000, 2724, 3319, 4019, 41401, 4280, 42831, 4359, 56400, 7810, 8260 *492015352000036642" (MN60 20 20 40 CMS COBR Coortination of CENTERS FOR MEDICARE & MEDICMO SERVICES Benefits and Recovery 21321400129904ALA 0 10101 HEALTHSOUTH Icp-9 V5789, V1254, 07/08/2013 07/29/2013 $30,101.99 $24,586.92 REHABILITATION 04149, 25000, HOSPITAL OF 2724, 4019, WESTERN MA 41401, 42731, 42830, 4380, 43811, 43820, 43882, 43883, 5990, 71590, 7818, 78194, 7840, 78720, 78820, 7906, 9160 21322101609007MAA 0 14201 = WINGATEATSOUTH _ICD-9 5789, 25000, 07/25/2013 07/31/2013 $2,341.70 $1,716.25 HADLEY REHAB & 4019, 41400, SKILLED NURSING 42731, 43889, 7197, 72887, 78722 21325301839007MAA 0. 14201 = WINGATEATSOUTH —ICD-9 —_—-V5789, 25000, 08/01/2013 08/24/2013 $15,449.83 $12,287.71 HADLEY REHAB & 4019, 41400, SKILLED NURSING 42731, 43889, 7197, 72887, 78722 21407001287407MER 0 14011 VNA & HOSPICE OF 1cD-9 V571, 25000, 1/16/2014 02/28/2014 ——$2,210.01_—-$3,729.18 COOLEY DICKINSON 43819, 7242, 72887, 7812 21528600708907MAR 0 15004 PROVIDENCE Icp-9 5990, V1302, 09/08/2015 09/08/2015 $0.00 $1,632.01 HOMECARE 5861, V5883, 25000, 4019, 41400, 42830 21529500521704NTA 0 05901 HOLYOKEMEDICAL ICD-10 ‘14891, Z5181, 10/13/2015 10/13/2015 $92.00 $90.57 CENTER Z7901 21530100657004NTA 0 05901 HOLYOKEMEDICAL —ICD-10 —RO789, E1165, 10/17/2015 10/18/2015 $7,431.50 $1,467.34 CENTER 12510, 1482, 15033, R531, Z7901, 279899, Z8673 $24,586.92 $1,716.25 $12,287.71 $2,210.01 $0.00 $90.57 $1,467.34 Page 6 of 1040 40 7 7 7 Wl 7 W 7 81 CeEMS. COB'R Coordination of Sanefite and Recovery 21530700488004NTA 0 05901 HOLYOKE MEDICAL ICD-10 1509, J90 30/19/2015 10/19/2015 $98.00 $14.08 CENTER 21531000880004NTA 0 05901 HOLYOKE MEDICAL ICD-10 1482, E119, 10/29/2015 10/29/2015 $393.00 $146.42 CENTER 110, 1509, J90, R54 21532700920804NTA O 05901 HOLYOKE MEDICAL ICD-10 N390 11/05/2015 11/05/2015 $125.00 $33.53 CENTER 21533000140304NTA 0 05901 HOLYOKE MEDICAL ICD-10 14891, Z5181, 11/12/2015 11/12/2015 $92.00 $90.57 CENTER Z7901 700213186307290 001 14202 AMERICAN MEDICAL IcD-9 8290 07/03/2013 07/03/2013 $1,585.46 $342.74 RESPON, 700213186307290 002 14202 AMERICAN MEDICAL 1CD-9 8290 07/03/2013 07/03/2013 $21.35 $5.00 RESPON 700213196299590 001 14202 HSU, WEN C ICD-9 42731, 43491 07/03/2013 07/03/2013 $0.00 $0.00 700213196299590 002 14202 HSU, WEN C IcD-9 42731, 43491 07/03/2013 07/03/2013 $0.00 $0.00 709714065901333 ool 14212 AROSE, BRUCE ICD-9 8260 07/03/2013 07/03/2013 $33.00 $6.75 700213203498130 001 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/09/2013 07/09/2013 $393.00 $157.72 78079 700213203496820 001 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/12/2013. 07/12/2013 $144.00 $55.96 78079 700213203496820 002 14202 ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/15/2013 07/15/2013 $201.00 $80.65 78079 700213206078850 001 14202, ELDER, ANN MARIAL — ICD-9 43820, 43812, 07/19/2013 07/19/2013 $144.00 $55.96 78079 700913228653260 001 14202 GLICKSTEIN, MARC ICD-9 43491 08/05/2013 08/05/2013 $0.00 $0.00 700913228653260 002 14202 GLICKSTEIN, MARC IcD-9 43491 08/05/2013 08/05/2013 $100.00 $20.33 700913238133830 001 14202 ELDER, ANN MARIAL — ICD-9 436, 4019, 08/21/2013 08/21/2013 $205.00 $71.32 42731 13275714044000 001 16003 LINCARE INC. ICD-9 43889 08/24/2013 08/24/2013 $358.81 $86.79 $14.08 $146.42 $33.53 $90.57 $342.74 $5.00 $0.00 aes $0.00 $6.75 712 = $55.96 6 eee $55.96 $0.00 $20.33 $71.32 $86.79 Page 7 of 10 *4A2015352000036642*n 7 7 7 7 7 7 7 7 7 71 W W 7 7 CMS 700215281780970 700215281780970 700215281780970 700215281780970 700215281780970 700215281780970 70091530668 1840 700215321858840 700215321858840 700215321858840 700215321858840 700215321858840 700215321858840 700215282601540 70021 5292691290 (CENTERS FOR MUDICARE & MEDICAID SERVICES Bonofits and Recovery 001 14212 SHETH, NIRAV R icD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00 4280, 4299 002 14212 SHETH, NIRAV R ICD-9 42731, 4019, 95/04/2015 05/04/2015 $0.00 $0.00 4280, 4299 003 14212, SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00 4280, 4299 004 14212 SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00 4280, 4299 005 14212 SHETH, NIRAV R TCD-9 42731, 4019, 05/04/2015 05/04/2015 $204.00 $62.72 4280, 4299 006 14212 SHETH, NIRAV R ICD-9 42731, 4019, 05/04/2015 05/04/2015 $0.00 $0.00 4280, 4299 01 14212 NOYES, ELIZABETH J ICD-9 5990, 25000, 09/08/2015 09/08/2015 $100.00 $33.84 41400 001 14212 SHETH, NIRAV R IcD-9 42731, 25000, 09/11/2015 09/11/2015 $204.00 $63.03 4019, 4280 002 14212 SHETH, NIRAV R ICD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00 4019, 4280 003 14212 SHETH, NIRAV R ICD-9 42731,25000, 09/11/2015 09/11/2015 $0.00 $0.00 4019, 4280 004 14212 SHETH, NIRAVR ICcD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00 4019, 4280 005 14212 SHETH, NIRAV R ICD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00 4019, 4280 006 14212 SHETH, NIRAV R IcD-9 42731, 25000, 09/11/2015 09/11/2015 $0.00 $0.00 4019, 4280 001 14212 SYSTEM IcD-9 25000, V5861 09/25/2015 09/25/2015 $10.00 $4.22 COORDINATED SERV 001 14212 AMERICAN MEDICAL. ICD-10 RO79 10/16/2015 10/16/2015 $1,593.54 $352.30 RESPON $62.72 $0.00 $33.84 $63.03 $0.00 $0.00 $0.00 $0.00 $0.00 $4.22 $352.30 Page 8 of 107 71 7 aA 81 7 7 W 71 71 81 71 nN 700215292691290. 750215299409310 750215299421070 700215303158610 700215303158610 700215303 158610 700215303158610 700215310016920 700215296650040 700215296650040 700215310016990 15309741342000 7009153020885 10 7009153020885 10 7009 15302088510 70091530668 1850 70091530668 1850 15320781328000 700215313462470 700215313462470 CMS co BR Coordination of ‘ENTERS FOR MEDICARE & MEDICNO SERVICES Benefits and Recovery 002 14212 AMERICAN MEDICAL ICD-10 RO79 10/16/2015 10/16/2015 $74.13 $12.53 RESPON 001 13102 JEFFERSON ICD-10 15030, 14891 10/17/2015 10/17/2015 $221.00 $43.16 RADIOLOGY PC 001 13102 BLONDER, DAVID B. ICD-10 390 10/17/2015 10/17/2015 $35.00 $7.75 001 14212 HSU, WEN C ICD-10 RO789 10/17/2015 10/