Fitch

May a Medi-Cal lien for costs incurred in treating a decedent’s final illness be asserted against a recovery in a wrongful death action when that recovery does not and could not include those medical expenses? The answer is “no.”

I

Elan Jay Fitch (Fitch or decedent) contracted cancer while working for the Southland Corporation (Southland) as a diesel mechanic. Medi-Cal, a program administered by the California Department of Health Services (DHS), paid the medical expenses to treat Fitch’s cancer. When Fitch filed a workers’ compensation claim against Southland, alleging that workplace exposure to carcinogenic chemicals was the cause of the cancer, the DHS filed a lien in the workers’ compensation proceeding to recover $106,700.40 it had paid for Fitch’s medical treatment. In September 1993, Fitch died of the cancer, survived by his wife, Dianne, and three minor children.

On January 27, 1995, while the workers’ compensation proceeding was pending, Fitch’s widow brought a tort action seeking damages resulting from Fitch’s illness and death. She brought the action as an individual, as the representative of her husband’s estate, and on behalf of the three minor children.…