Medicare Subrogation in Wrongful Death Cases

From time to time I will see a question posted on the trial lawyers’ listserve asking whether Medicare has a subrogation interest in wrongful death proceeds.  The answer is "yes," and this opinion helps explain why.

Tennessee wrongful death law permits the recovery of medical expenses incurred between the injury caused by negligence and the death.  Missouri has  similar law, and the Eighth Circuit Court of Appeals affirmed the right of Medicare assert a right to a portion of the proceeds.

The case is Mathis v. Leavitt, No. 08-1983 (8th Cir. Jan. 30, 2009).  Read it here.

By the way, I know some of you are thinking "doesn’t Tennessee law provide that wrongful death proceeds are free from the claims of creditors and, if so, doesn’t that mean that Medicare, asserting its interest as a creditor, does not have any right to repayment?"  Fair question, but recall that (a) medical expenses can be recovered under state law and (b) state law cannot trump federal law on this issue.