Miller and Zois

Wrongful Death and Medicare in Maryland: Is There a Lien?

          Medicare cannot assert a lien on a wrongful death claim in Maryland. Why? Medicare says they make a claim only in wrongful death cases where the 'wrongful death' statute provides payment for medical damages. Maryland wrongful death claims are brought for the pain, suffering and loss of economic support that a wrongful death beneficiary suffers from the loss of their loved one. So in Maryland wrongful death cases where the beneficiaries of the survival action are the same as the wrongful death action, do smart plaintiffs' lawyers in Maryland just put all of the money recovered into the wrongful death action? No.

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           Technically, even if the result is the same for the parties, the personal representative of the estate is required to represent the estate by maximizing the value of the estate's claim. This puts the PR in an awful conflict if the PR is a wrongful death beneficary because by fighting for the estate's claim, they are fighting against their own claim if there is a lien on the survival action.  So if a personal representative agrees to arbitrarily settle the survival action without any recovery, the PR has arguably violated his fiduciary duty to the estate. 

      What is the answer then? There are no clear cut answers. The best play is to get everyone on board by getting all parties of interest - including Medicare - to agree on how the proceeds are divided. I believe that there must be a rational basis for the division (or the stiffing of the estate claim) that can be justified. Clearly, a strong argument can be made in many Maryland wrongful death cases where there are limits on the recovery that the bulk of the claim is a wrongful death action as opposed to a survival action.
           If you live in the Baltimore Washington area and you have a family member that you believe was killed by the negligence of another driver on the road, by medical malpractice, or as the result of the use of a defective product, get a free online consultation and assessment or call Ron Miller or Laura Zois at 800-553-8082. 

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