Wrongful Death Cases: Can Medicare Still Have its Superlien?
We received this question directly from a plaintiff last week (who also happens to be a practicing attorney): Can Medicare claim its reimbursement right where the case is only a Wrongful Death action?
Answer: Maybe.
Three Medicare cases help us get to the analysis. First there was Bradley v. Sebelius (621 F.3d 1330, 11th Cir. 2010). Bradley involved a settlement under the Florida Wrongful Death Statute for $52,000.00 where Medicare claimed a $22,480.89 lien (after reduction pursuant to 42 CFR 411.37). This case ended with a reduction to $787.50 under the premise that Medicare was only entitled to the percentage of settlement for medical payments.
The second case is Benson v. Sebelius (771 F.Supp.2d 68, DC Dist. 2011). Benson involved a settlement under the Pennsylvania Wrongful Death and Survivor laws. This case differed from Bradley because the plaintiff expressly claimed medical costs in her complaint (whereas Bradley was settled without a complaint). Medicare was entitled to its full amount in this case.
Third is Taransky v. Sec. of US Dept. of Health & Human Servs. (760 F.3d 307, 3rd Cir. 2014). Taransky involves the New Jersey Collateral Source Statute that says a plaintiff cannot recover where she has already received funding from a different source (e.g., health insurance). While Taransky is significantly more complex than the other cases, it does give one additional piece of the puzzle: the plaintiff released all claims (including medical).
These three cases give us a theoretical three factor test:
- Does the underlying claim allow for medical expenses?
- Did the plaintiff claim medical expenses at any point?
- Did the plaintiff release medical expenses (including a general release)?
Number three creates a problem because many settlement releases release “any and all claims.” Yet, it also can be distinguished using number one: if you cannot claim medical expenses by law, then your general release could not have released what you could not claim.
It is important to properly resolve the Medicare lien. We encourage you to ask for help in Medicare lien resolution from an expert source. To discuss your lien resolution needs, call Massive today at 844.633.5436 or send us an email at [email protected].