If you filed a claim for survival damages, or the wrongful death lawsuit or statute permits you to recover medical expenses, then the Medicare lien is required to be paid from the settlement proceeds. But if your claim was filed only for the decedent’s wrongful death, and not for the right to seek reimbursement of medical expenses, then the Medicare lien does not have to be paid from the proceeds of the wrongful death settlement.

The Department of Health and Human Services manages the Medicare program, which was established to pay the medical expenses of certain people. If a Medicare recipient was injured by a third party, then any payment by Medicare to cover the recipient’s medical bills is considered provisional, and Medicare must be repaid if the third party’s liability insurer subsequently pays for those expenses.

In Hall v. United Security, 2012 IL App (1st) 112158-11, the defendants made a motion to include Medicare as a payee on the check in settlement of a wrongful death action. The lawsuit did not consist of a claim covered by the Illinois Survival Act, and the trial court sided with the plaintiff. Upon filing an appeal, the defendants contended that exclusion of Medicare from the settlement check left them susceptible to a lawsuit from the federal government for funds expended by Medicare for the decedent’s medical expenses. But the Appellate Court declined to accept the defendants’ contention.

At first, the court recognized the difference between a claim filed under the Survival Act, and one filed under the Wrongful Death Act. The court determined that the Illinois Wrongful Death Act permits damages to be recovered only when they were sustained by the closest family members while the Illinois Survival Act allows damages to be recovered only when they were suffered by the decedent until the time of death.

The court said that the plaintiff’s complaint consisted only of claims for wrongful death, and that the damages that could be recovered were only those based on financial loss to the decedent’s survivors. Because the claims of this action were not ones for financial loss, damages and pain and suffering of the decedent, there were no claims to which the Medicare lien applied. Therefore, when a plaintiff’s complaint seeks damages only for the decedent’s wrongful death, Medicare does not have to be reimbursed for payment of the decedent’s medical expenses.

Paul Greenberg is a Chicago wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

If you filed a claim for survival damages, or the wrongful death lawsuit or statute permits you to recover medical expenses, then the Medicare lien is required to be paid from the settlement proceeds. But if your claim was filed only for the decedent’s wrongful death, and not for the right to seek reimbursement of medical expenses, then the Medicare lien does not have to be paid from the proceeds of the wrongful death settlement.

The Department of Health and Human Services manages the Medicare program, which was established to pay the medical expenses of certain people. If a Medicare recipient was injured by a third party, then any payment by Medicare to cover the recipient’s medical bills is considered provisional, and Medicare must be repaid if the third party’s liability insurer subsequently pays for those expenses.

In Hall v. United Security, 2012 IL App (1st) 112158-11, the defendants made a motion to include Medicare as a payee on the check in settlement of a wrongful death action. The lawsuit did not consist of a claim covered by the Illinois Survival Act, and the trial court sided with the plaintiff. Upon filing an appeal, the defendants contended that exclusion of Medicare from the settlement check left them susceptible to a lawsuit from the federal government for funds expended by Medicare for the decedent’s medical expenses. But the Appellate Court declined to accept the defendants’ contention.

At first, the court recognized the difference between a claim filed under the Survival Act, and one filed under the Wrongful Death Act. The court determined that the Illinois Wrongful Death Act permits damages to be recovered only when they were sustained by the closest family members while the Illinois Survival Act allows damages to be recovered only when they were suffered by the decedent until the time of death.

The court said that the plaintiff’s complaint consisted only of claims for wrongful death, and that the damages that could be recovered were only those based on financial loss to the decedent’s survivors. Because the claims of this action were not ones for financial loss, damages and pain and suffering of the decedent, there were no claims to which the Medicare lien applied. Therefore, when a plaintiff’s complaint seeks damages only for the decedent’s wrongful death, Medicare does not have to be reimbursed for payment of the decedent’s medical expenses.

Paul Greenberg is a Chicago wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

In personal injury lawsuits, the “Discovery Rule” allows injured people to file a lawsuit beyond the usual two year statute of limitations if they did not learn of the wrongful cause until a later date.

However, in the case at issue, the specific statute relating to physicians applied rather than the general statute of limitations because the lawsuit alleged medical malpractice.

Several Illinois courts have found the discovery rule to apply to wrongful death lawsuits as well, and the Moon case conflicts with previous holdings. According to legal observers, in order for the discrepancy to be resolved, the Illinois Supreme Court may have to author an opinion that applies to all wrongful death lawsuits, regardless of whether the action is brought against a doctor.

Paul Greenberg is a Chicago work accidents and wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

The mother, Ammee Price, filed the lawsuit individually and as special administrator for her deceased son, Christopher E. Price, Jr., pursuant to the Illinois Wrongful Death Act. The mother received treatment at a federally-funded, community-based health center that is a public health service agency of the United States. The United States was the defendant in the case, which was filed in accordance with the Federal Tort Claims Act.

The complaint alleged that the health center failed to appropriately counsel the plaintiff regarding the risks of hyperglycemia and pregnancy, failed to appropriately treat her diabetes, failed to order and provide Non-Stress Testing and biophysical profiles for the well-being of the fetus, failed to appreciate and respond to the mother’s poor glycemic control, and/or failed to schedule an earlier delivery date based on the mother’s poor glucose control, and that these failures resulted in her child’s stillbirth at 38 weeks gestation on August 23, 2009.

The lawsuit sought damages for the mother’s pecuniary loss, grief, sorrow, and mental anguish; loss of her son’s love, affection and society; and funeral and burial expenses.

The lawsuit was filed in the United States District Court for the Southern District of Illinois in East St. Louis, which approved the settlement.

Paul Greenberg is a Chicago wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

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