Question
In our state, wrongful death awards belong to the family and are not subject to claims of the estate -- and the medical expenses incurred by the decedent prior to death are not part of the measure of damages. I am trying to discuss/communicate with MSCRP to get an acknowledgment that the insurance company can pay the settlement without having Medicare liability. Fax communication with MSPRC regarding this issue is going nowhere. Any pointers?
Answer
If a wrongful death statute does not permit recovering medical damages, Medicare has no claim to the wrongful death payments. When a liability insurance payment is made pursuant to a wrongful death action, Medicare may recover from the payment only if the State statute permits recovery of these medical expenses. Generally, if the statute permits recovery of the deceased's medical expenses, Medicare may pursue its payments, even if the action fails to explicitly request damages to cover medical expenses. Thus, in that event, even if the entire cause of action sets forth only the relatives and/or heirs damages and losses, then Medicare may still recover its payments. When State law permits a full recovery of medical damages but limits the amount of the recovery which is payable to creditors as a result of past medical expenses, Medicare may recover against the entire tort recovery, up to the full amount of past Medicare payments. However, when state law limits the amount of the past medical expenses that may be recovered from the tortfeasor and responsible insurer, Medicare may recover only up to that amount (or the amount of the settlement, if the settlement is less than or equal to Medicare's claim.)
Unfortunately, you will still need to report the case to Medicare and provide them with the documentation advising them they do not have any interest in the settlement based on your state’s WD statute, which includes providing them with a copy of the statute. You might also refer them to their own policy under the Medicare Secondary Payer Manual, Section 50.5.4.1.1- Wrongful Death Statutes, which is where the above instructions are derived.
Sylvius von Saucken
