Thursday, May 22, 2008

Medicaid, Wrongful Death Case

Posted by Matthew Garretson

Husband, wife and two kids are involved in an accident. Father dies at age 31 as the sole bread winner (no conscious pain and suffering, but taken to the hospital), mom has extensive injuries and both kids have injuries (not quite as severe) all paid through Medicaid. We have a $60K offer of limits from tortfeasor (two policies) and $240K offer of limits from UIM carrier.

Questions: can all $300,000 in insurance proceeds be allocated to wrongful death? Can Medicaid subrogate against the underinsurance proceed (or only against a liable party or third party in 5101.58)?

The law doesn't seem real clear on these issues. Am I missing something in my research?

-Ohio Attorney

Based on your description, it appears that if there was no conscious pain & suffering, that a survivorship claim is limited, at best. As a result, allocating all to the wrongful death statutory beneficiaries under R.C. 2125.02 is more than likely acceptable. The Judge will be comparing the death of a person and his associated injuries with the loss of a husband and father. Under the statute (2125.02) the wife and children are conclusively presumed to have been injured for loss of society, companionship, etc. We have taken the position before that in an instance where settlement proceeds are allocated to WD beneficiaries, the Medicaid lien that follows the decedent does not follow to the those beneficiaries. Getting the Judge to allocate in this manner is just a matter of explaining the facts of the case. BUT, to be sure of a result, I would notify ODJFS as well - give them a chance to argue in court if they want to - that the children should not get it all (along with wife).

It would appear that there is likely to be some conditional payments made by Medicaid for the benefit of the children, but you note their injuries were not as severe, so opening a tort recovery file on them would likely not lead to a significant recovery amount.

The UIM question I do not know off the top of my head, but I believe that question may be rendered moot if the allocation goes to beneficiaries for whom injury-related care has not been paid by Medicaid.