Medicare & Wrongful Death: How an Illinois Plaintiff Got it Wrong
A November 2017 decision out of the US District Court in the Northern District of Illinois gives us a very clear case study in how not to use Wrongful Death laws to avoid Medicare liens. Paraskevas v. Price was decided on November 26, 2017. The Court found that Medicare was entitled to its full claim ($253,546.73 reduced to $105,000.00 by the Medicare Appeals Council) even though the plaintiff’s family settled the decedent’s case as only a Wrongful Death action. Why?
It wasn’t true.
Mistake #1 – Including a Survival Claim for Medicals
The Paraskevas case is an example of lien resolution trying to take advantage of state law. It started as both a Wrongful Death and a Survival action in Illinois. That Illinois Survival Act includes provisions that allow a plaintiff to collect for medicals. So, the plaintiffs’ complaint included a demand for medicals. This was mistake number one.
Mistake #2 – Circumventing the “Merits” to Remove the Survival Claim
Then, the plaintiffs settled their late-father’s case. It was after settlement when they also decided to file an amended complaint removing the Survival claims while keeping only the Wrongful Death claims. This was mistake number two.
The two mistakes were enough to allow the Court to find that Medicare is entitled to its full Medicare Lien. We’ve previously discussed matters like Benson v. Sebelius and Taransky v. Sebelius which set these rules (Medicare is entitled to is lien unless you do not claim or release medicals).
Mistake #3 – Failing to Argue the Lien is Unrelated
We don’t know if the plaintiffs made these arguments, but, the lien is that significant that we question it. What did the plaintiffs fail to argue? That much of this was preexisting. The case began as a failure to timely diagnose cancer, which the plaintiff already was going to have to fight cancer. Perhaps these preexisting arguments were made, but, perhaps not.
We recognize it is difficult and often dangerous to argue a case is just a Wrongful Death action. Nevertheless, it is important to properly resolve the Medicare lien and understand what kind of delays are involved with the various appeals.
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].