United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1983
                                   ___________

Dolores Mathis; Dawn Michelle           *
Phillips; Patricia Ann Zollars;         *
Kimberly Maria Webb;                    *
Christopher Mathis; Timothy             *
Cooper Mathis; Jennifer                 *
Nicole Parrish,                         *
                                        * Appeal from the United States
             Appellants,                * District Court for the
                                        * Western District of Missouri.
      v.                                *
                                        *
Michael O. Leavitt, Secretary,          *
Department of Health                    *
and Human Services,                     *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 10, 2008
                                Filed: January 30, 2009
                                 ___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
                              ___________

ARNOLD, Circuit Judge.

       Appellants filed an action in Missouri state court against those whom they
believed were responsible for fatal injuries to their decedent, David Mathis, seeking
all forms of relief available under the state's wrongful death statute. See Mo. Rev.
Stat. § 537.080. When the parties to the action agreed to settle it, Medicare, which
had paid $77,403.67 of Mr. Mathis's final medical expenses, refused to acknowledge
that it did not have a right to reimbursement from appellants.

       Appellants then amended their petition to add a declaratory judgment claim
against Medicare's administrator, the Secretary of Health and Human Services (HHS),
arguing that the Missouri wrongful death statute did not provide for recovery of
medical expenses and therefore appellants had no duty to reimburse Medicare. After
a liability insurer for two of the original defendants paid $77,403.67 into the state
court registry to be held pending resolution of the declaratory judgment action, HHS
removed the action to federal court. The district court1 granted summary judgment to
HHS, holding that the settlement resolved appellants' claim for medical expenses and
thus Medicare had a right to reimbursement under 42 U.S.C. § 1395y. It ordered that
the funds deposited in the state court registry be paid to HHS. Appellants appeal and
we affirm.

      Medicare pays the medical expenses of qualified individuals. See 42 U.S.C.
§§ 1395-1395ggg. If a third party is responsible for injuring a qualified individual and
Medicare pays for the resulting medical treatment, the payment is considered
conditional and repayment to Medicare is required if the responsible party's liability
insurer later makes a payment for those expenses. See 42 U.S.C. § 1395y(b)(2)(B)(i).
Medicare may seek reimbursement from "any entity" that receives such a payment.
See 42 U.S.C. § 1395y(b)(2)(B)(iii).

        The Missouri statute governing damages in a wrongful death action provides
that a fact-finder may award, "[i]n addition" to damages "for the death and loss" of the
decedent, "such damages as the deceased may have suffered between the time of
injury and the time of death and for the recovery of which the deceased might have


      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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maintained an action had death not ensued." Mo. Rev. Stat. § 537.090. We think it
plain enough that Mr. Mathis's medical costs were damages "suffered between the
time of injury and the time of death" and for which he could have brought suit had he
survived.

        Despite this crystalline statutory language, and despite the fact that appellants
asserted in their petition that Mr. Mathis incurred certain medical expenses, appellants
nevertheless maintain that medical expenses of the decedent are not damages
recoverable in a wrongful death action in Missouri. Appellants do not deny that Mr.
Mathis, had he lived, could have recovered medical expenses in a personal injury
lawsuit of his own. Their argument is premised instead on case law holding that the
damages recoverable under the Missouri wrongful death statute are not the same as
the damages that a decedent would have been entitled to recover in a personal injury
action. See Finney v. National Healthcare Corp., 

, 395 (Mo. Ct. App.
2006). Appellants take this undoubted principle, combine it with the fact that a
decedent had a right during his lifetime to recover medical expenses, and conclude
that medical expenses of the decedent are not damages recoverable under the Missouri
wrongful death statute. But this is a non sequitur: The fact that the damages that can
be awarded in the two causes of action are different (that is, not identical) does not
mean that they are entirely different. Finney simply held that there were damages
available in a wrongful death action that the decedent, had he lived, could not have
recovered in a personal injury action, such as damages for loss of consortium. 

indicates that the damages recoverable in the two actions are different,
but it is manifestly not a holding that they are mutually exclusive.

       Appellants also maintain that because the damages available to statutorily
designated beneficiaries in a wrongful death action and the damages that a decedent
could have recovered in a personal injury action are different, the reference to the
latter in the Missouri wrongful death statute merely provides a guidepost to
determining the beneficiaries' overall loss. We find this argument both difficult to

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comprehend and unavailing. The Missouri wrongful death statute specifically
provides that the beneficiaries may recover medical expenses that a decedent suffered
between the time of injury and death "[i]n addition" to damages "for the death and
loss," Mo. Rev. Stat. § 537.090, and the Missouri state courts have not held otherwise.
In fact, the Missouri Supreme Court has stated that "damages incurred by the decedent
before death, such as medical expenses and pain and suffering, are recoverable as part
of the wrongful death claim," Powell v. American Motors Corp., 

, 186
(Mo. 1992), and has explained that "Missouri now has a combined death and survival
statute under which damages may be recovered for the death and also for such
damages as the deceased may have suffered between the time of injury and time of
death," Stiffelman v. Abrams, 

, 531 (Mo. 1983) (emphasis added).
Because appellants claimed all damages available under the Missouri wrongful death
statute, the settlement, which settled all claims brought, necessarily resolved the claim
for medical expenses.

       Finally, appellants suggest that we can find relevant guidance in American
Family Mut. Ins. Co. v. Ward, 

(Mo. 1989), which rejected a hospital's
claim to a lien against wrongful-death proceeds. Appellants assert in their brief that
there is "no analytical distinction" between a Missouri hospital lien and Medicare's
right to reimbursement, but we see a key difference: The Missouri hospital lien
attaches only to proceeds of claims "brought on the part of the injured person," see 

whereas Congress authorized Medicare to recover from "any entity" that
receives payment for expenses conditionally paid for by Medicare, see 42 U.S.C.
§ 1395y(b)(2)(B)(iii). As we have already indicated, the settlement in this case
resolved a claim for medical expenses that Medicare had already paid.

        We note that the parties and the district court referred to Medicare's right to
reimbursement and to Medicare's subrogation rights in their analyses of this case. But
it is important to bear in mind that these rights are distinct and independent of each
other. In any case, since we hold that Medicare has a right to reimbursement we

                                          -4-
believe that it is unnecessary to decide what subrogation rights 42 U.S.C.
§ 1395y(b)(2)(B)(iv) might give to Medicare in the present circumstances. Whatever
they are, moreover, they might well be subject to a rule of equitable apportionment
that would reduce the amount that Medicare could recover. See Zinman v. Shalala,

, 844-45 (9th Cir. 1995).

      We therefore affirm the judgment of the district court.
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