The Wrongful Death Lien Trap: Why How You Plead Can Cost Your Client Thousands

James Wong — Founder & Pharmacist, LienScripts | February 6, 2025 | 7 min read

A California Supreme Court case most PI attorneys have never read means that a pure wrongful death action carries zero Medi-Cal lien exposure — but adding a survival claim can trigger one. How you plead the case determines whether DHCS has any claim at all.

The Wrongful Death Lien Trap: Why How You Plead Can Cost Your Client Thousands

When a personal injury victim dies from their injuries, their family typically has two potential legal claims: a wrongful death action and a survival action. Most attorneys know both claims exist. What many don't consider is that the choice of which claims to pursue — and how they are pleaded — directly determines whether DHCS can assert a Medi-Cal lien on the recovery at all.

This is not a minor procedural detail. It is a strategic decision that can save your client tens of thousands of dollars in government recovery.

[!KEY] Under Fitch v. Select Products Co., a pure wrongful death action carries zero Medi-Cal lien exposure — but adding a survival claim for pre-death medical expenses can trigger a six-figure lien that reflexive pleading inadvertently creates.

The Legal Foundation: Fitch v. Select Products Co.

In Fitch v. Select Products Co. (State Dept. of Health Services) (2005) 36 Cal.4th 812, the California Supreme Court held that Medi-Cal cannot assert a lien in a wrongful death action when the damages recoverable do not and could not include compensation for medical services provided to the decedent.

The court's reasoning is foundational: wrongful death damages compensate the survivors — for their loss of support, companionship, and financial contribution from the decedent. They do not compensate the decedent for medical expenses. Because Medi-Cal's recovery right is limited to proceeds representing payment for medical care, and wrongful death proceeds do not represent medical care to the decedent, DHCS cannot touch them.

This is a categorical rule: pure wrongful death action = no Medi-Cal lien.

The Trap: Adding a Survival Action

A survival action under Code of Civil Procedure §377.34 allows the decedent's estate to recover damages the decedent could have recovered had they survived. This includes, crucially, the decedent's pre-death medical expenses.

When a decedent received Medi-Cal-funded medical treatment before dying of their injuries, those expenses become part of the damages recoverable in a survival action. And when those medical damages are recoverable, Medi-Cal's lien attaches to the survival action proceeds.

In cases where the decedent had significant Medi-Cal-funded treatment before death — hospital stays, surgeries, ICU care — this distinction is enormous. A survival action can expose the estate to a six-figure Medi-Cal lien that a pure wrongful death pleading would have avoided entirely.

What Reflexive Pleading Costs Your Client

Many PI attorneys routinely plead both wrongful death and survival claims without analyzing which claims are strategically appropriate given the specific facts. This is understandable — standard pleading practice often includes all available claims. But in cases involving Medi-Cal-funded pre-death treatment, failing to analyze the exposure before filing is a costly mistake.

Consider: a decedent spends two weeks in an ICU before dying from injuries sustained in an accident. Medi-Cal paid $85,000 for that hospitalization. The family brings a wrongful death action. If the attorney also includes a survival claim for the pre-death medical expenses, DHCS can now assert an $85,000 lien against the survival proceeds.

If the attorney had filed only a wrongful death action — and the full damages to the family can be characterized as wrongful death damages — DHCS has no claim.

[!KEY] The pleading decision in a wrongful death case is a one-way gate — adding a survival claim to trigger pre-death medical damages recovery simultaneously opens the door to the Medi-Cal lien, and that gate cannot be closed after filing without procedural complexity and potential statute of limitations exposure.

Getting a Written Disclaimer from DHCS

When a case is filed as a pure wrongful death action with no survival claim, attorneys can request that DHCS issue a written disclaimer of lien. This disclaimer confirms that DHCS will not assert a recovery interest because the claims being settled are wrongful death damages only.

DHCS will issue this disclaimer when:

• The claims being settled are clearly for wrongful death damages only
• There is no survival action, no estate claim, and no claim for the decedent's medical expenses
• The settlement documentation reflects this scope

To obtain the disclaimer, contact DHCS with documentation of the claims being settled. A written disclaimer prevents any future DHCS assertion against the settlement funds and can be included in the settlement file for documentation purposes.

[!TIP] When filing only a wrongful death claim, proactively request a written DHCS disclaimer of lien — this prevents any future assertion against the settlement and documents your deliberate pleading strategy in the case file.

When a Survival Action Is Appropriate Despite the Lien Exposure

In some cases, pursuing a survival action is the right strategy even knowing it triggers the Medi-Cal lien. This occurs when:

• The pre-death pain and suffering damages in the survival action substantially exceed the Medi-Cal lien exposure
• There is no wrongful death recovery available (e.g., the decedent had no dependents)
• The statute of limitations requires filing a survival claim

The analysis is case-specific. The point is to make this a deliberate strategic decision — not to inadvertently trigger DHCS exposure through reflexive pleading.

[!KEY] In cases where the decedent had no dependents — meaning wrongful death damages are unavailable and only a survival action is viable — the Medi-Cal lien cannot be avoided, and the Ahlborn formula becomes the primary tool for limiting DHCS's recovery from the survival proceeds.

Practical Checklist for Wrongful Death Cases

• Did the decedent receive any Medi-Cal-funded treatment related to the injury before death?
• How large is the potential Medi-Cal lien if a survival action is pursued?
• Are survival action damages sufficient to justify the lien exposure?
• If filing only a wrongful death action, request a written DHCS disclaimer of lien
• Document the strategic pleading decision in the file

Related Resources

• California's TPLRD Program: Full Overview
• How to Reduce a Medi-Cal Lien in California
• Fitch v. Select Products Co. (2005) — Justia