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What money can Medicaid and Medicare recoup or not recoup from a wrongful death lawsuit award?

Rensselaer, NY |

My mother went into a nursing home as a Medicaid patient. She had no estate other than her Social Security and Medicare which went toward her care in the nursing facility. After seven months in a nursing home my mother died as a result of a nursing home wrongdoing. She was taken from the nursing home after the incident and placed in a hospital where she died after two days. Our family sued and a settlement amount should be reached soon. What claims do Medicaid and Medicare have and not have on any award money?

Attorney Answers 6


  1. It really depends upon the settlement language. If moneys are paid to your mother's personal representative for damages she sustained, it is recoverable as part of her estate. Medical expenses paid by Medicare as a result of her injury as due back to Medicare. If money is paid to the family for their loss then it should not be recoverable.


  2. Your question is far too complex and fact dependent for Avvo. Medicaid and Medicare are entitled to be repaid for tort occasioned costs from any tort recovery of the Medicaid/Medicare recipient or her estate. However, I suspect that certain wrongful death proceeds would not be subject to such claims, but this depends on state wrongful death law. I do special needs settlement work in New York and could consult by phone. In any case, with proper settlement design, it may be possible to limit exposure to such claims.
    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  3. Generally speaking, money paid as a settlement for "wrongful death" is not subject to any liens on the deceased's estate because the damaged parties are the survivors, not the deceased. Money paid for damages to the deceased due to negligence or other actionable torts, will be subject to Medicaid and/or Medicare liens AT LEAST to the extent that Medicaid or Medicare paid for care that was required due to the negligence or other actionable tort. The attorney handling this lawsuit for you is in the best position to explain this to you in detail because they will know all the facts and circumstances of your case. Good luck!

    Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@hotmail.com. All of Ms. Brown’s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.


  4. I am sorry for your loss. As far as parties with interests against your settlement proceeds it depends.
    You will be expected to reimburse Medicare and Medicaid for medical expenses directly related to the incident: the hospitalization, ambulance, ER, etc. The amount you pay may be reduced by the costs of collection (% taken out for attorney fees and costs).

    As far as Medicaid liens for the care provided at the nursing home unrelated to the wrongful death that is a different issue. You should consult a NY nursing home attorney who can assist with the answer to this question you can find one on AVVO.

    Good luck.

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  5. They have statutory liens that have to be addressed. It is different in every case and state (Medicaid).

    This answer is provided as a public service for informational purposes only and is not intended as legal advice. Providing this information does not create an attorney-client relationship nor is any information shared considered privileged or confidential. As with all legal matters, you should contact an experienced attorney and be aware that there are time limits for asserting potential claims.


  6. More information is needed to properly evaluate.

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