Legal Question in Wills and Trusts in Maryland

My mom recently passed away she had a asbestos case that has not been settled. I was told I had to open a estate account for this which I did. I have just been informed that now we can file a wrongful death case. The problem is I just recieved a letter from medicaid, they are are trying to recover $575000 from my moms estate their is nothing currently in there but I guess they have found out eventually their will be. I just recieved the paperwork from the lawyer stating that 50% will be for survival action and 50% for wrongful death so medicaid is entitled to 50%of all settlements which will leave me and my brother the ones who are without our mom with barely nothing after lawyer fees and medicaid. I almost want to cancel the case because I feel like my mom can not rest in peace knowing her over 15yr of suffering will go majority to medical bills from her exposure to asbetos. I know that they are not entitled to the wronful death portion I would like to know if I have to do the survival action or can I just do wrongful death or if the % to each can be changed? Im just trying to get a second opinion. Thank you

Asked on 4/30/17, 9:48 am

1 Answer from Attorneys

Cedulie Laumann Arden Law Firm, LLC

Although it may be helpful to seek a second opinion, an online post is not designed to offer legal advice tailored to your situation. However, the following response offers some general legal information which you may find relevant.

A sizeable portion of damages in asbestos / personal injury cases may relate to the deceased person's medical expenses and/or their pain and suffering. Medicaid has a right under law to recover money it spends for medical expenses. The government also has the right to sue people who avoid paying their reimbursement so a plaintiff would be hard pressed to find an attorney recommending structures designed solely to avoid repaying the lien.

Wrongful death actions involve claims by immediate family members (typically a spouse or child) but instead of looking at the pain and suffering endured by the person who died, damages are measured by the loss to the family member. We expect parents to take care of their children while minors and so minor children may ordinarily recover in a wrongful death case for pecuniary loss up to the time they become adults. Adult children presumably have a much lower financial claim in wrongful death matters because they are presumed to be self-supporting. While certainly the loss of a parent brings pain at any age, damages are often tied to pecuniary (money) loss. In some cases there are both wrongful death and survivor claims. Where there are two or more categories of claims, an insurance carrier is highly unlikely to settle a case for only some of the claims.

While the government has fairly strong rights to recover money they spent on medical bills, there are a few ways to lawfully lessen the burden of a government lien. By law a lien may be reduced by a portion of the attorney fees (up to one-third) expended to get to settlement or verdict. In other words, even if the government has rights to some of the recovery, they may be required to reduce that to account for attorney fees. In extreme cases the government may offer a hardship waiver if reimbursing medical expense would work a severe hardship on the family members receiving the money. Finally, instead of settling on an allocation that the federal government agrees with, one can always ask a jury to decide what portion of a case is rightly attributed to medical expenses. If that happens, and lets say the jury decides 30% or 40% or 60% or any other figure is attributed to medical expenses, the amount decided by the jury controls.

While general information cannot substitute for getting personalized legal advice specific to your situation I hope this helps. Since you have legal counsel you may wish to sit down and talk to your attorney or hire a second attorney to review your case and offer some advice.

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Answered on 5/02/17, 6:25 am

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