Liens, and the negotiation of the same, have become a big part of the personal injury litigation settlement process. There are private companies that will handle the entire part of reducing claims liens, for a fee. There are many different types of liens and the responsibility of the Plaintiffs lawyer is different depending on the State and also the type of lien. For more information on Medicare liens click here, or here. You can find more information on pip liens here.
The statutes concerning medical provider liens are different from State to State. This is a complex process and we have an in house staff person to handle the liens side of the case. In lien negotiation you start with knowing the law.
As you analyze the liens check the statute and case law for the answer to the following questions:
- Who has a lien under the statute?
- What do they need to do to perfect the lien?
- How do you challenge the lien?
- What is the standard the Judge will use to decide your challenge?
- Does your Attorney lien have priority?
- How is on the hook if the hospital is not paid? Can they come after your law firm as they can with Medicare liens?
Here are some of the relevant statues in Kansas, Missouri and Arkansas.
65-406. Liens upon personal injury damages recovered by patients; exception; enforcement of claimed lien in excess of $5,000
(a) Every hospital, which furnishes emergency, medical or other service to any patient injured by reason of an accident not covered by the workers compensation act, if such injured party asserts or maintains a claim against another for damages on account of such injuries, shall have a lien upon that part going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by such patient’s heirs, personal representatives or next of kin in the case of such patient’s death, whether by judgment or by settlement or compromise.
(b) Such lien shall be to the amount of the reasonable and necessary charges of such hospital for the treatment, care and maintenance of such patient in such hospital up to the date of payment of such damages. Such lien shall not in any way prejudice or interfere with any lien or contract which may be made by such patient or such patient’s heirs or personal representatives with any attorney or attorneys for handling the claim on behalf of such patient or such patient’s heirs or personal representatives. Such lien shall not be applied or considered valid against anyone coming under the workers compensation act in this state.
(c) In the event the claimed lien is for the sum of $5000 or less it shall be fully enforceable as contemplated by subsection (a) of this section. In the event the claimed lien is for a sum in excess of $5,000 the first $5,000 of the claimed lien shall be fully enforceable as contemplated by subsection (a) of this section, and that part of the claimed lien in excess of $5,000 shall only be enforceable to the extent that its enforcement constitutes an equitable distribution of any settlement or judgment under the circumstances. In the event the patient or such patient’s heirs or personal representatives and the hospital or hospitals cannot stipulate to an equitable distribution of a proposed or actual settlement or a judgment, the matter shall be submitted to the court in which the claim is pending, or if no action is pending then to any court having jurisdiction and venue of the injury or death claim, for determination of an equitable distribution of the proposed or actual settlement or judgment under the circumstances.
430.225. Definitions–distribution of insurance proceeds–limitation on liability
1. As used in sections 430.225 to 430.250, the following terms shall mean:
(1) “Claim”, a claim of a patient for:
(a) Damages from a tort-feasor; or
(b) Benefits from an insurance carrier;
(2) “Clinic”, a group practice of health practitioners or a sole practice of a health practitioner who has incorporated his or her practice;
(3) “Health practitioner”, a chiropractor licensed pursuant to chapter 331, a podiatrist licensed pursuant to chapter 330, a dentist licensed pursuant to chapter 332, a physical therapist licensed under chapter 334, a physician or surgeon licensed pursuant to chapter 334, or an optometrist licensed pursuant to chapter 336, while acting within the scope of their practice;
(4) “Insurance carrier”, any person, firm, corporation, association or aggregation of persons conducting an insurance business pursuant to chapter 375, 376, 377, 378, 379, 380, 381, or 383;
(5) “Other institution”, a legal entity existing pursuant to the laws of this state which delivers treatment, care or maintenance to patients who are sick or injured;
(6) “Patient”, any person to whom a health practitioner, hospital, clinic or other institution delivers treatment, care or maintenance for sickness or injury caused by a tort-feasor from whom such person seeks damages or any insurance carrier which has insured such tort-feasor.
2. Clinics, health practitioners and other institutions, as defined in this section, shall have the same rights granted to hospitals in sections 430.230 to 430.250.
3. If the liens of such health practitioners, hospitals, clinics or other institutions exceed fifty percent of the amount due the patient, every health care practitioner, hospital, clinic or other institution giving notice of its lien, as aforesaid, shall share in up to fifty percent of the net proceeds due the patient, in the proportion that each claim bears to the total amount of all other liens of health care practitioners, hospitals, clinics or other institutions. “Net proceeds”, as used in this section, means the amount remaining after the payment of contractual attorney fees, if any, and other expenses of recovery.
4. In administering the lien of the health care provider, the insurance carrier may pay the amount due secured by the lien of the health care provider directly, if the claimant authorizes it and does not challenge the amount of the customary charges or that the treatment provided was for injuries caused by the tort-feasor.
5. Any health care provider electing to receive benefits hereunder releases the claimant from further liability on the cost of the services and treatment provided to that point in time.
430.230. Hospitals to have liens–when, against whom
Every public hospital or clinic, and every privately maintained hospital, clinic or other institution for the care of the sick, which is supported in whole or in part by charity, located within the state of Missouri, or any such hospital duly incorporated under the laws of Missouri providing for the incorporation of eleemosynary institutions, shall have a lien upon any and all claims, counterclaims, demands, suits, or rights of action of any person admitted to any hospital, clinic or other institution and receiving treatment, care or maintenance therein for any cause including any personal injury sustained by such person as the result of the negligence or wrongful act of another, which such injured person may have, assert or maintain against the person or persons causing such injury for damages on account of such injury, for the cost of such services, computed at reasonable rates not to exceed twenty-five dollars per day and the reasonable cost of necessary X-ray, laboratory, operating room and medication service, as such hospital, clinic, or other institution shall render such injured person on account of his conditions; provided further, that the lien herein set forth shall not be applied or considered valid against anyone coming under the workers’ compensation law in this state.
430.235. Hospital liens to be valid against medical benefits paid to public assistance recipients
Notwithstanding the provisions of section 430.230, every public hospital or clinic, and every privately maintained hospital, clinic or other institution for the care of the sick, which is supported in whole or in part by charity, located within the state of Missouri, or any such hospital duly incorporated under the laws of Missouri providing for the incorporation of eleemosynary institutions, shall have a lien upon any and all claims, counterclaims, demands, suits, or rights of action of any person admitted to any hospital, clinic or other institution and receiving treatment, care or maintenance therein for any cause including any personal injury sustained by such person as the result of the negligence or wrongful act of another, which such injured person may have, assert or maintain against the person or persons causing such injury for damages on account of such injury, for the cost of such services, computed at reasonable rates not to exceed the customary charges for the services and the customary charges for necessary X-ray, laboratory, operating room and medication services as such hospital, clinic or other institution shall render such injured person on account of his conditions. The lien set forth in this section shall not be applied or considered valid against anyone coming under the workers’ compensation law in this state. The lien set forth in this section shall be considered valid and may be applied against medical benefits paid anyone under the provisions of chapter 208, whether such benefits are paid from state or federal funds, or a combination thereof.
Mo. Rev. Stat. Ann. § 430.235 (West)
430.240. Notice to be given
No such lien shall be effective, however, unless a written notice containing the name and address of the injured person, the date of the accident, the name and location of the hospital and the name of the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received shall be sent by certified mail with return receipt requested to the person or persons, firm or firms, corporation or corporations, if known, alleged to be liable to the injured party, if known, for the injuries sustained prior to the payment of any moneys to such injured person, his attorneys or legal representative, as compensation for such injuries. Such hospital shall send by certified mail with return receipt requested a copy of such notice to any insurance carrier, if known, which has insured such person, firm or corporation against such liability.
Mo. Rev. Stat. Ann. § 430.240 (West)
430.250. Liability for failure to pay hospital
Any person or persons, firm or firms, corporation or corporations, including an insurance carrier, making any payment to such patient or to his attorneys or heirs or legal representatives as compensation for the injury sustained, after the receipt of such notice in accordance with the requirements of section 430.240, without paying to such hospital the amount of its lien or so much thereof as can be satisfied out of fifty percent of the moneys due to such patient under any final judgment or compromise or settlement agreement after paying the amount of attorneys’ liens, federal and Missouri workers’ compensation liens, and any prior liens, shall have a period of one year, after such settlement is made known to the hospital, from the date of payment to such patient or his heirs, attorneys or legal representatives, as aforesaid, be and remain liable to such hospital for the amount which such hospital was entitled to receive, as aforesaid, and any such association, corporation or other institution maintaining such hospital may, within such period, enforce its lien by a suit at law against such person or persons, firm or firms, corporation or corporations making any such payment.
Mo. Rev. Stat. Ann. § 430.250 (West)
A.C.A. § 18-46-104
On compliance with the requirements of this chapter, a practitioner, a nurse, an orthotist, a prosthetist, a pedorthist, a hospital, and an ambulance service provider shall each have a lien:
(1) For the value of the service rendered and to be rendered by the practitioner, nurse, orthotist, prosthetist, pedorthist, hospital, or ambulance service provider to a patient, at the express or implied request of the patient or of someone acting on his or her behalf, for the relief and cure of an injury suffered through the fault or neglect of someone other than the patient;
(2) On any claim, right of action, and money to which the patient is entitled because of that injury, and to costs and attorney’s fees incurred in enforcing that lien; and
(3) For the cost of a prosthesis, orthotic, pedorthic device, or medical appliance provided to the patient.