Of Death And Medicare Recovery
June 3, 2011 8:57 AM   Subscribe

My father passed away a few weeks ago - I'm the sole heir and designated executor of his will and it has been not too difficult a process even with my depression (partly because he prepared for it very well but also because he had almost nothing to leave me), but I still have worries...

His death was the result of being hit by a car (as a jaywalking pedestrian, sigh) as noted by the Death Certificate. Based on that, the insurance company of the driver has offered me a settlement equal to their full insurance coverage ($15,000). I had no intent to pursue anything more BUT he was in the hospital for 11 days after the accident and his medical bills were over $25,000, about 90% paid by Medicare. I have learned that Medicare has the right to recover its costs from any liability settlement, so I think "fine, just let Medicare have it all." But will there be a problem with whatever is NOT covered by the settlement? And what is the responsibility of The Estate for the last 10%? As I said, he had zero cash and few possessions worth not much, but I'd give up the few 'family heirlooms' to avoid further hassle (how to do it, I don't know). I know You Are Not My Lawyer, but I doubt "the Estate" (me, on disability) can afford a real lawyer.
posted by oneswellfoop to Law & Government (18 answers total) 1 user marked this as a favorite
IANAL, but I believe this sort of law varies significantly state by state, so your best bet is probably going to be the Legal Aid options where you live to see what your options are for a low-cost (or no-cost) consult.
posted by jquinby at 9:05 AM on June 3, 2011

First, let me say I am so sorry for your loss.

IANAL, but it sounds like you would really benefit from getting legal counsel. It's my understanding that the estate would be repsonsible for paying any outstanding bills, not the beneficiaries of the estate.

It looks like you're in California. Try contacting a legal clinic or pro bono legal resource. Here are a couple places to get you started.

Take gentle care of yourself.
posted by goggie at 9:10 AM on June 3, 2011 [1 favorite]

Look, if I offer you ten bucks, that means I think you can cost me more then $10, either in attorney costs to fight you off or in damages.

Never ever accept the first offer. Talk to a lawyer. Don't be a chump.
posted by orthogonality at 10:29 AM on June 3, 2011 [7 favorites]

I don't know much about Medicare, but as a lawyer I have good research skills and found this information, which I hope will help you, my friend.

Medicare has a priority right to recovery for any injury related claims it may have paid. According to Medicare's policy MSP Manual, "a beneficiary’s death does not materially change Medicare’s interest in recovering its payments made on behalf of the beneficiary while alive. Upon death, the estate of the beneficiary comes into existence by operation of law.” An executor or administrator whose sole purpose is to conclude all business and financial matters that still remained at death manages it. Medicare’s interest in the outcome of a third party liability claim is one of these matters. Therefore, Medicare’s claim is properly asserted against the estate.

There is a difference from Medicaid, which can recover from the estate for all payments made, injury and non injury related. Medicare seeks reimbursement only for claims that are from the date of injury through the date of settlement, and only for expenses arising out of the injuries attributed to the claim.


As others have said, look for some pro bono advice on this, if you can.
posted by essexjan at 10:49 AM on June 3, 2011

Oh, and I also agree with orthogonality that the first offer should be rejected and the insurers should reimburse the Medicare bills, but you'll probably need someone to negotiate this for you, if you're feeling fragile.
posted by essexjan at 10:53 AM on June 3, 2011

Hon, get an estate lawyer. That is what they are for.

Sorry for your loss. My husband went thru this a few years ago. It's never easy.
posted by St. Alia of the Bunnies at 11:11 AM on June 3, 2011

PS we had no money for a lawyer either but I think any expense was covered by the estate. At least see if you can have a consult.
posted by St. Alia of the Bunnies at 11:13 AM on June 3, 2011

I'm so sorry for your loss.

Eleven days in the hospital sounds like your father experienced a serious personal injury. Typically a personal injury claim is paid at some multiple of the total medical expenses, not a fraction. Talk to a personal injury lawyer before talking with the insurer or driver any further. 11 days in the hospital, death, acknowledgement of liability by the insurer...really, this is something a lawyer can settle more appropriately. Personal injury lawyers normally charge no upfront fees and instead get paid a percentage of the settlement. So no worries about cost if you want to let someone lift this load off your shoulders.
posted by nakedcodemonkey at 11:53 AM on June 3, 2011 [3 favorites]

Lawyer up. It's worth every cent. The cost should come out of the value of the estate, before any other payouts are made (this is true in Virginia, at least). Let whomever you hire deal with the insurance company.

My condolences and best wishes for the days ahead.
posted by ashirys at 12:37 PM on June 3, 2011

After re-reading your question more closely, it sounds like your father's estate may well be insolvent (i.e. not have enough money to pay debts owed). You may not want to bother lawyering up in that case, unless you can get a free consult with someone to see if the insurance claim is worth following up on (if there's a chance that a later offer would make the estate solvent).

One other thing: "the Estate" (me, on disability)" is NOT true. You (and your assets) are NOT part of your father's estate, and you should not spend any of your money to settle it. If the estate (your father's assets) cannot afford to pay its debts after liquidating all of its assets, then those debts just don't get paid. You are not personally responsible for any debts owed by your father. Don't let anyone tell you otherwise.

(IANAL, etc.)
posted by ashirys at 1:08 PM on June 3, 2011 [2 favorites]

Response by poster: The cost should come out of the value of the estate,

it sounds like your father's estate may well be insolvent

I just wanted to make clear that his "estate" consisted of a few hundred dollars cash and a couple thousand dollars worth of "collectibles" that will take some effort to sell. (I wouldn't mind handing the storage boxes to the lawyer and say "here's your fee") ZERO life insurance, ZERO anything else. With $10K in costs of the accident over the settlement offer and unknown dollars MediCal may charge regarding previous treatment, I didn't see the math working out well.

Also based on an eyewitness and the police report of the accident, he may have had significant contributory negligence in the accident (wouldn't that cut down any settlement significantly?) and the Death Certificate refers to "complications" which one doctor admitted to me were infections picked up in the hospital (although they were related to health problems he already had and which he was not treating well).

Meanwhile the insurance company rep suggested that anything over the $15K is going to come out of the pocket of the poor lady driving - was he lying to guilt me into settling?

I was hoping I could keep it simple (the more I get into the details, the unclearer it gets) and I never expected getting anyhting out of his "estate" even after spending several hundred dollars I don't really have on his expenses, so maybe I should just hand it off to the first attorney who's willing to deal with it. Or how DO I deal with an "insolvent estate"?
posted by oneswellfoop at 1:15 PM on June 3, 2011

Don't believe the insurance rep
posted by Blasdelb at 1:30 PM on June 3, 2011 [1 favorite]

The insurance rep is NOT on your side. Go see a local Personal Injury lawyer on Monday. The consultation should be free. Your father was killed by an insured driver; this is worth more than 15K.
posted by DarlingBri at 3:30 PM on June 3, 2011 [4 favorites]

Whatever you do, do NOT believe the insurance rep. Please get a lawyer to help you.

I know this is emotionally hard and you just want to get past this, but please do not allow your father's estate-and by extension you-to get ripped off. For that matter I am sure there have to be local Mefites around that would be glad to be a sounding board in person and not just online, for moral support with this?
posted by St. Alia of the Bunnies at 3:35 PM on June 3, 2011 [1 favorite]

Not only was your father killed by an insured driver, he died of complications from infections that he got in the hospital? Yeah, lawyer. Seriously. And don't do anything quickly. None of this stuff needs to be resolved today or tomorrow. So wait 'til you can get an appointment with legal aid, a personal injury lawyer, or whoever.
posted by clone boulevard at 9:07 PM on June 3, 2011

I'm so sorry that you're in this awful position, and I'm sorry about the loss of your dad.
posted by LobsterMitten at 9:16 PM on June 3, 2011

At risk of sounding utterly crass and mercenary, the insurance company offered you $15,000 after their insured struck your father with her vehicle and killed him? I got more than $15,000 in settlement money from the insurance company after their insured dropped a bookcase on my foot.

You are in a situation where your father was killed by an insured driver and died of complications from infections that he got in the hospital. Compared to what you're dealing with, my injury was trivial and minor. But I had a lawyer.

As others have said, don't believe a word the other party's insurance company tells you about "contributory negligence" (so please go away and don't sue us because we don't want to have to pay up). Don't believe what the hospital's lawyers or spokespeople tell you about the infections being the result of his existing health problems (so please go away and don't sue us because we don't want to have to pay up). Don't feel sorry for the driver — if it was an area where pedestrians are common then jaywalkers are an anticipated hazard and she should have been going slowly enough and paying enough attention not to hit somebody. (And furthermore, if you weigh it might cost her money versus she killed your father do you really think they come out even?)

Get a lawyer. Get a tough one. Let them go after the hospital and the insurance companies. And please don't waste your energy worrying about the wellbeing of the other party. She'll be fine. Of the people still alive, you're the one who's been harmed.

Let the lawyer take care of the legal and monetary side so you can spend your energy on the emotional side of dealing with your father's death. Much sympathy.
posted by Lexica at 8:14 PM on June 4, 2011 [2 favorites]

I was hoping I could keep it simple

I wish it were in my power to give you a hug right now. Instead, the warming comfort I can give is this: a personal injury lawyer is how this situation will become simple for you to deal with.

Right now grief may be clouding your judgement, so forgive me for stating what may otherwise be obvious, but: your dad's death has ensnared you in multiple legal matters in which large sums of money are at stake. You are the only one in this picture who is without expert counsel, and that fact is a major reason you're feeling overwhelmed. Thankfully, your situation is one of the few in which legal representation won't require anything from you but a signature.

Call a personal injury lawyer, really. You'll talk for 30 minutes, be very surprised by what you learn, sleep on it, and awake feeling grateful and relieved that you called in the first place. Really.

Big hug. I hope you find that simplicity you've been seeking.
posted by nakedcodemonkey at 7:51 PM on June 7, 2011 [1 favorite]

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