Wrongful Death Claims

10.8 – Wrongful Death Claims (Rev. 12438; Issued: 01-04-24; Effective: 02-06-24; Implementation: 02-06-24) Wrongful death statutes (including survival statutes) are state laws that permit an entity (such as a decedent’s estate, personal representative or survivors) to assert the claims and rights that the decedent had at the time of death and/or to recover damages arising from that death itself. These laws may include recovery for the deceased’s medical expenses. Medicare’s right of recovery in relation to these statutes is governed by 42 CFR § 411.24 and is as follows (note that the analysis of wrongful death statutes described below would be similar to an analysis of wrongful death actions at common law): a) When a liability insurance payment is made under a wrongful death statute, Medicare may recover on account of that payment if the wrongful death statute permits recovery of the deceased’s medical expenses. If a state wrongful death statute does not permit recovery of the deceased’s medical expenses, Medicare has no claim against recovery obtained solely under that wrongful death statute; b) If the wrongful death statute permits recovery of the deceased’s medical expenses, Medicare will pursue MSP claims arising from a primary payment obtained under that statute. Medicare will pursue its MSP claims even if the claimant who asserts the cause of action under the wrongful death statute: i) fails to explicitly request recovery for the decedent’s medical expenses, and/or ii) only requests recovery for damages/losses incurred by the decedent’s relatives and/or heirs; c) When a wrongful death statue permits full recovery of medical expenses but limits the amount that creditors may obtain from that recovery of past medical expenses, Medicare may recover up to the full amount of its conditional payments from the entire recovery obtained under the wrongful death statute. However, if the wrongful death statute limits the amount of medical expenses that may be recovered from the tortfeasor and/or responsible insurer, Medicare may recover only up to that limited amount of the recovery (or up to the amount of the settlement, judgment, award, or other payment if that amount is less than or equal to Medicare’s claim). When a settlement, judgment, award, or other payment was obtained under a wrongful death theory of liability, documentation of that claim should be retained by the beneficiary’s estate, personal representative, or other claimant. In the event of a dispute, submission of supporting documentation may be required in the form and manner specified by the Secretary. The documentation should be maintained regardless of whether other claims were also asserted, or whether the wrongful death statute was not the sole claim related to the settlement, judgment, award, or other payment. In cases where a lawsuit is actually filed based on a wrongful death theory of liability, such documentation should include the court pleadings (including both the original pleadings and any amendments thereto). There may be cases where: a) a wrongful death lawsuit was filed, but subsequently withdrawn and resolved with a general release; or b) no lawsuit specifically seeking wrongful death recovery was ever filed. In both of these cases, examples of supporting documentation may include: i) a fully executed settlement agreement or release; ii) documents exchanged between the parties during settlement negotiations; and other documents the parties exchanged in anticipation of litigation. Notwithstanding the above scenarios, the settlement documentation must unambiguously indicate that the settlement, judgment, award, or other payment was obtained under the wrongful death theory of liability and must support that position in order for CMS to acknowledge that recovery may be limited accordingly.