Bosserman Pontificates

Medicare Set-Aside Blog on November 3, 2009
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CMS employee Tom Bosserman of the San Francisco regional office, prolific clarifier of opaque Health and Human Services policy, had this to say regarding Medicare’s recovery rights in a wrongful death action.


“If the beneficiary’s Estate pursues a Liability insurance settlement,

then Medicare will assert a right of recovery.  However, if the

settlement is solely for Wrongful Death, then Medicare will not pursue



Wrongful Death statutes are State laws which permit a person’s survivors

to assert the claims and rights that the decedent had at the time of

death. These laws may include recovering for the deceased’s medical

expenses.  When a liability insurance payment is made pursuant to a

Wrongful Death action, Medicare may recover from the payment only if the

State statute permits recovery of these medical expenses.  Generally, if

the statute permits recovery of the deceased’s medical expenses,

Medicare may pursue its payments, even if the action fails to explicitly

request damages to cover medical expenses.  Thus, in that event, even if

the entire cause of action sets forth only the relatives and/or heirs

damages and losses, then Medicare may still recover its payments.  If a

Wrongful Death statute does not permit recovering medical damages,

Medicare has no claim to the Wrongful Death payments.


When State law permits a full recovery of medical damages but limits the

amount of the recovery which is payable to creditors as a result of past

medical expenses, Medicare may recover against the entire tort recovery,

up to the full amount of past Medicare payments. However, when State law

limits the amount of the past medical expenses which may be recovered

from the tortfeasor and responsible insurer, Medicare may recover only

up to that amount (or the amount of the settlement, if the settlement is

less than or equal to Medicare’s claim.)


Any Wrongful Death settlement agreement would have to be closely

examined to ensure that only a wrongful death claim is involved.  There

may be instances when the settlement also specifically provides for

payment of a decedent’s medical damages that would not be properly

classified as a purely Wrongful Death action, no matter how the matter

is captioned.  In such a situation, Medicare is entitled to recover its

medical expenses from the proceeds of a settlement from the defendant’s

insurer (or from any defendant who is self-insured).  Because the

Wrongful Death action joins the damage claims of the Medicare

beneficiary’s heirs with the claim for medical expenses asserted by the

beneficiary’s Estate, the plaintiff’s attorney may contend that any

settlement / judgment is intended solely to compensate the heirs.

Therefore, it is important to note that  (in the absence of a specific

Court determination of the recovery amount attributable to medical

damages)  where any portion of recovery could relate to medical

expenses, Medicare asserts its recovery rights against the entire amount

of the settlement”


Compliment to Tom Bosserman from the NAMSAP listserv:


“I love Bosserman, he is a smart guy who helps when he can and does the right thing” – Henry Krohnlein – Protocols, LLC



To profess YOUR love to Tom, email him at Bosserman, Thomas M. (CMS/WC)



Email Provided courtesy of:


Linda Nelson, CCM, CLCP, MSCC

Medical Management Resources, Inc.

PO Box 4818

Helena, Montana 59604


Fax: 406-443-2088




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