Will the attorney and Medicare take the entire settlement?

by Nancy
(Los Angeles, CA)

My Dad recently died due to lack of medical care at a nursing home. He had a 104.7 degree temperature and was transferred on life support before they gave any attention to him. He had sepsis from a urinary tract infection and died. He also had bed sores.

I want to file an elder abuse case but heard that not only does the attorney take 40%, but Medicare swoops in and takes any remaining settlement. Why would I want to put myself through reliving this nightmare in depositions, court cases, paperwork, pics, etc.? I do not want to go through this legal process for nothing.

Is it true the attorney and Medicare will take the whole settlement? Should I just let them get away with this negligence? Is there anything I can do? Thank you.

Visitor Question:
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ANSWER for "Will the attorney and Medicare take the entire settlement?":

Nancy (Los Angeles, CA):

Under Medicare's Secondary Payer Act, the U.S. Government and Medicare have a right to be reimbursed for amounts paid out when there is a personal injury settlement. There are three circumstances where Medicare claims may be waived in whole or in part, or may be compromised:

1. The Federal Claims Collection Act provides that if the probability of recovery or the amount involved does not warrant pursuit of the claim, then there are grounds for compromise.

2. If the Secretary of Health and Human Services determines that the waiver is in the best interests of the Medicare program.

3. If recovery against a person who is without fault would defeat the purposes of Social Security or Medicare, or would be against equity and good conscience, then there are grounds for a waiver.

For more information on requesting a waiver or compromise visit this page.

As for attorney compensation, they will normally take 33.3% of a settlement, or 40% of the final court award, if the case goes to trial. You can learn more about attorney compensation here.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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