Sandra W. Reed’s Life Care Planning: Wrongful death: What is it and can Medicaid raid your recovery for it?

Attorney Sandra W. Reed answers your life planning questions.

Local atorney Sandra W. Reed answers your

life planning questions.

Marilyn Mann’s mother, June Jefferson, had been confined in a nursing home for two years. The cost of her long-term care and medical expenses were being paid by Medicaid. When Mrs. Jefferson began suffering bed sores, the nursing home staff assured Marilyn that these were being properly treated. However, the bed sores were not eradicated and Mrs. Jefferson was eventually hospitalized with an infection contracted through them.

Mrs. Jefferson died three months later from organ failure resulting from the infection. Do Marilyn and her siblings have any recourse against the nursing home?

Marilyn and her siblings should contact a lawyer to determine whether they have a claim against the nursing home. It is possible that the facts presented would give rise to a case against the nursing home for wrongful death.

What Is a Lawsuit for Wrongful Death?

A wrongful death occurs when the death is caused by the negligence or misconduct of another person or entity.  In the case of Marilyn and her siblings, their claim would be that, but for the negligence of the nursing home in allowing their mother to develop bed sores and the resultant infection, she would not have died at the time she did. Marilyn and her siblings would file a lawsuit to recover monetary damages to be paid by the nursing home for their fault in causing their mother’s death.

The amount of damages is set to compensate the family members for their losses rather than to punish the nursing home.  his figure will depend on a number of factors, including medical expense, funeral expenses and Mrs. Jefferson’s age and life expectancy at the time of death. If their mother had been working when she died, the amount she had earned and how much the children depended upon her for support would be taken into account as well.

In a typical wrongful death lawsuit, the suing survivors will ask for money to be awarded them for the loss of parental guidance, companionship and affection of the decedent. In Marilyn’s case, since all Mrs. Jefferson’s children are grown, their claim will include only companionship and affection losses.

Medicaid Reimbursement Out of Wrongful Death Recovery

In Mrs. Jefferson’s case, Medicaid is likely to claim entitlement to recover 100 percent of the medical expenses it paid out from any recovery that Marilyn and her siblings are paid by the nursing home, either through a judgment entered or a settlement. For that reason, they should seek legal representation to assist them in apportioning the claims and any judgment or settlement they take from these claims between medical expenses and any other damages, including loss of companionship or earning capacity.

A case described in an article by attorney Robin Gerber in the June 2013 AARP Bulletin illustrates this point.  The facts in that case were similar to those presented by Mrs. Jefferson and her family’s situation. In the reported case, Medicaid paid just under $40,000 in medical expenses. The deceased, whose wrongful death precipitated the suit, had 10 children who joined in making the claims.

They settled the case with the nursing home for just over $50,000, an amount which the nursing home liability carrier paid to the family.  Medicaid claimed the bulk of this entire settlement.  The state probate court allocated less than $1,000 of the settlement to medical expenses because the claims for loss of companionship were so much higher than the settlement amount.  This court then allowed the family to keep the rest of the settlement amount.

The federal district court to which Medicaid appealed said Medicaid could recover just over $22,000 after deducting legal costs out of the $50,000 settlement. Dissatisfied with that decision, Marilyn and her siblings appealed to the federal appeals court, which found that if a primary insurance plan pays for medical expenses after Medicaid has already paid, Medicaid is entitled to reimbursement.

However, the court also said the money recovered for the children’s claims for loss of parental companionship belonged to them.  The federal appeals court used the same allocation between medical expenses and the loss of companionship claim that the probate court had applied.  That meant Mrs. Jefferson’s children retained the settlement amount except for just under $1000 paid to Medicaid for reimbursement of medical expenses.

What Federal Court Decision Means for Wrongful Death Claimants

Medicaid can, and most likely will, try to recover money from any primary payer – in this case the nursing home insurance carrier in reimbursement for the medical expenses it paid.  This means that when making a claim for wrongful death, both the claimants and the lawyer(s) representing them should anticipate this claim and attempt to allocate the funds from any settlement in a manner that maximizes claims other than medical expenses to the extent that the facts of the case allow.

If you have questions, please do not hesitate to call me at 254-797-0211 or email me at

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth, Texas.  She lives and practices in beautiful Somervell County, near Chalk Mountain.



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