Written By: Scott D. Lane, Esq.
Lane & Lane, LLC
A lawsuit arising from the death of an individual has two main potential causes of action – an action brought pursuant to the Survival Act (755 ILCS 5/27-6), and an action brought pursuant to the Wrongful Death Act (740 ILCS 180/1). Essentially, the survival action seeks to recover damages suffered by the deceased before he/she died (e.g., pain and suffering, disability, lost wages and medical expenses). The wrongful death action, on the other hand, seeks to recover damages suffered by the deceased’s beneficiaries as a result of his/her death (e.g., loss of society, grief, and economic support).
As noted above, medical expenses are recoverable in survival actions. Therefore, the law is clear that Medicare has a right of reimbursement for bills paid by Medicare with respect to proceeds recovered pursuant to a survival action. Medical expenses, however, are not recoverable in wrongful death actions. Therefore, the law is equally clear that Medicare does not have a right of reimbursement against the proceeds recovered pursuant to a purely wrongful death action.
Even though Medicare has no right of reimbursement in a wrongful death action, when Medicare becomes aware of such litigation, it often sends notice of a right of reimbursement to counsel for all parties. Moreover, mostly for reasons related to self-protection, before issuing a settlement check, defense counsel often require plaintiff’s counsel to provide written confirmation (obtained from Medicare) that Medicare has no such right of reimbursement. If no such written confirmation is provided, defense counsel often insist on including Medicare as a payee on the check. Of course, including Medicare on the check causes a variety of problems, including significant delay in the distribution of the proceeds.
One option in these situations is to file a motion to compel defense counsel to provide the settlement check without Medicare as a payee (we recently filed such a motion in a case of ours). Another option is to request a letter from Medicare confirming that they have no lien or right of reimbursement in this particular case. As we all know, obtaining anything from Medicare is no easy task. Obtaining a letter from Medicare that they have no lien or right of reimbursement was, as you might expect, very difficult…until now.
With the help of several ITLA members (I wish I could remember their names), my office put together a letter to Medicare that we have found to be very effective in these situations. This letter requests Medicare to provide written confirmation that it does not have a right of reimbursement in a case that involves proceeds from a purely wrongful death claim. The letter is commonly referred to as a “Request for Zero Interest Letter”. The following is an example of one such letter to Medicare:
Via Certified Mail/Via Facsimile (405-869-3309)
P.O. Box 138832
Oklahoma City, OK 73113
Re: Estate of Jane Doe, Deceased v. Dr. Jones, et al
Court No.: 00 L 0000
Our File No.: 00-00
Name of Beneficiary: Jane Doe, Deceased
Request for “Zero Interest Letter”
Dear Sir or Madam:
I represent John Doe, Special Administrator of the Estate of Jane Doe, Deceased. The parties have recently agreed to settle this wrongful death medical negligence case for $1,000,000. The purpose of this letter is to confirm that Medicare does not have a lien/right of reimbursement with respect to the settlement proceeds. Specifically, I am requesting that you provide me with a “Zero Interest Letter”. The assistant regional counsel at the Office of the General Counsel for the United States Department of Health and Human Services, suggested that I me to provide you with certain information and documents in order to obtain this “Zero Interest Letter” from you, confirming that Medicare does not claim a right of reimbursement against the proceeds of Plaintiff’s wrongful death settlement.
On July 23, 2009, the Plaintiff filed a Complaint alleging medical negligence against various Defendants claiming that their failure to diagnose and treat colon cancer in a timely manner caused or contributed to cause Jane Doe’s death which occurred on June 4, 2009. This Complaint (Plaintiff’s Second Amended Complaint) contained both survival and wrongful death counts. On October 25, 2009, Plaintiff filed a Third Amended Complaint which added certain Respondents in Discovery. Both Complaints are enclosed for your review.
During the course of discovery, it became clear that the evidence did not support the counts brought pursuant to the Survival Act. The overwhelming evidence established that Jane Doe would have received the same medical treatment for the cancer a suffered the same pain and suffering from the cancer and the necessary treatment even if Defendants had diagnosed the cancer in a timely manner. The evidence only supported that the Defendants’ negligent delay may have contributed to cause her death. Based upon the evidence of record, including the depositions of several treating physicians, the survival action counts were dismissed with prejudice on January 23, 2011. Consequently, at this time, only the counts for wrongful death remain. Although the parties have agreed to settle the case, the Court has not approved the settlement and the Releases have not been executed. The Releases, which I have also enclosed for your review, clearly indicate that only the wrongful death counts are pending at this time.
The law is clear that damages for medical bills may be recovered pursuant to survival actions. Cruz v. Illinois Masonic Medical Center, 271 Ill.App.3d 383, 648 N.E.2d 932 (1st Dist. 1995); 755 ILCS 5/27-6 (the Illinois Survival Act). The law is equally clear that medical expenses may not be recovered pursuant to the Wrongful Death Act. Graul v. Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965); Elliot v. Willis, 89 Ill.App.3d 1144, 412 N.E.2d 638 (4th Dist. 1980).
Since the survival actions have been dismissed with prejudice and settlement is being made pursuant to the wrongful death counts only, no lien or right of reimbursement should attach to the settlement proceeds. Additionally, in Illinois, in order for a lien to attach to medical expenses, there must be a connection between the tortfeasor’s conduct and the services rendered. Dollieslager v. Hurst, 295 Ill.App.3d 152, 691 N.E.2d 1181 (3rd Dist. 1998). In this case, for the reasons stated above, there is no such connection. Therefore, for this reason as well, Medicare has no right of reimbursement against the proceeds of this wrongful death settlement.
Our position that Medicare has no right of reimbursement against the proceeds of this settlement pursuant to the Wrongful Death Act is also supported by Federal case law. In Denekas v. Shalala, 943 F.Supp. 1073 (S.D. IA 1996), the Court held that “the MSP (medical secondary payor) provisions do not give Medicare the right to obtain reimbursement of conditional payments from the claims of other claimants who are not Medicare beneficiaries and whose claims are not for medical services. Id. at 1080. The Court ordered that “the parental consortium claims brought by the Estate are not subject to the claims of Defendants (Medicare and BCBS) for reimbursement of conditional Medicare payments or health/hospitalization insurance payments.” Id. at 1082-1083. Also, in Zinman v. Shalala, 835 F.Supp. 1163 (N.D. CA 1993), the Court held that when a judgment is entered or an arbitration award determined and amounts are identified as being for medical expenses and/or pain and suffering, Medicare seeks reimbursement only from that portion of the judgment/award identified as for medical expenses. Id. at 1167. (Emphasis added).
In our case, the Plaintiff’s claim and the settlement award have absolutely nothing to do with recovery of medical expenses. The settlement is for damages recoverable pursuant to the Wrongful Death Act. Medical expenses are not recoverable under the Wrongful Death Act. Therefore, Medicare does not have a right of reimbursement with respect to the settlement proceeds.
Joan Zanzola instructed me to provide you with the following information:
1. Name of beneficiary: Jane Doe, Deceased;
2. HIC#: 000-00-0000A;
3. Injury date (failure to diagnose colon cancer): 4/2005 through 11/2005 (see enclosed Complaint); and
4. Injury: Death on 6/4/09.
Ms. Zanzola also instructed me to enclose the following for your review:
1. Copies of Plaintiff’s Second and Third Amended Complaints;
2. Order dismissing with prejudice Counts I, II, IV and V of Plaintiff’s Third Amended Complaint (the Survival Actions Counts);
3. Authorization to release information (executed by John Doe, Special Administrator of the Estate of Jane Doe, Deceased); and
4. Copies of settlement Releases (3).
On April 23, 2011, this matter is set for hearing on the Plaintiff’s Petition to Approve the Settlement. We need to know Medicare’s position with respect to any right of reimbursement well in advance of said hearing. Kindly provide us with written confirmation of Medicare’s “Zero Interest” in the proceeds of this wrongful death settlement.
Thank you in advance for your prompt attention to this matter. Please call me if you have any questions or comments.
Very truly yours,
Scott D. Lane
We have found Medicare to be very responsive to the above letter. Of course, Plaintiff’s counsel may dispute Medicare’s right of reimbursement for several reasons. Hopefully, the above letter (or one of the many possible variations thereof) will assist Plaintiff’s counsel in obtaining a rapid response from Medicare and facilitate distribution of the proceeds recovered.