Resolving medical liens is one of the most technical and complicated steps in recovering compensation for a personal injury. For those unaccustomed to identifying and reducing potential liens, they often find themselves in for a rude awakening when their injury recovery is either severely reduced or in some cases totally lost. Use of a skilled personal injury attorney can protect a claimant from invalid lien claims and help in negotiating a reduction of valid liens that often result in a greater ultimate client recovery.
Because of the numerous ways in which liens may arise, an injured claimant is best served using a personal injury attorney who practices exclusively in the field of personal injury. Just as one would not go to an ophthalmologist for chest pains, an injured claimant is best served by a dedicated personal injury attorney.
What are Liens
A lien is simply a claim of a right to repayment from proceeds received in a settlement or a judgment. These claims are typically asserted by either your medical provider, your health insurance provider, Medicare or Medicaid. A person who settles their personal injury claim without identifying and satisfying a lien runs the risk of losing their recovery or, in some cases, future health care coverage. A skilled personal injury lawyer can assess whether a claimed lien is valid and can often negotiate a reduction in the ultimate repayment amount based upon the client and the attorney’s efforts in securing a recovery.
Types of liens
There are basically two types of liens which can be asserted on a personal injury award: contractual and statutory. A contractual lien is a claim for repayment based on agreement between the medical provider and the injured party. Contractual liens may be asserted by:
Health insurance companies
Medical providers who performed treatment on the basis of a lien for repayment
Med-Pay insurance providers, if the injured party obtains a monetary recovery from third-party
Statutory liens are claims for repayment that are established by statute. They include:
Worker’s compensation insurance providers
EMS and hospital emergency services
Medicare, Medicaid and TriCare
The personal injury attorney and lien reductions
A skilled personal injury attorney will approach asserted medical liens in several ways.
Is the lien valid? There are a number of medical providers who will claim to have a valid lien for medical care when no such lien exists. For those liens not established by statute the provider must have a signed lien for repayment.
Liens which include co-pays. Co-pays and deductibles that you paid for services rendered should not be included in the lien.
You were found partially at fault or there is a claim that you are partially at fault. If there is some dispute as to fault, all is not lost. The skilled personal injury attorney can still negotiate a settlement and force the lienholder to acknowledge the claim of fault and reduce the lien accordingly.
Reduction in proportion to attorney fees and expenses. In many cases, the lien claimant is required to share in the cost of reasonable attorney’s fees and legal expenses.
You have not been “made whole” by the settlement.” If the insurance policy of the person who injured you was insufficient to fully compensate you for your injuries and losses, this may limit the health insurance company’s right to full recovery.
Medicaid and Medicare. If medical expenses were paid by one of these programs, a statutory lien can be asserted when a recovery is received from the at fault person. Medicare makes a pro-rata lien reduction that takes into account attorney’s fees and other costs to procure the settlement or judgment.
How insurance adjusters take advantage of unwary claimants
In South Carolina a claimant is entitled to be reimbursed for the full amount of medical expenses incurred, not simply the remaining balance on medical bills after payments made by your health insurance policy. All too often the skilled plaintiff attorney receives a call from a client who has attempted to handle their own injury claim. At fault insurance adjusters often attempt to simply reimburse the claimant for those outstanding medical expenses not previously paid by health insurance. The problem arises when the claimant accepts a settlement in return for signing a release of claims and is then contacted by the medical provider who has a valid lien for repayment. Unfortunately, there is nothing any skilled personal injury attorney can do for a claimant after the fact.
Our firm handles personal injury exclusively and has been doing so for over 30 years. Our efforts at the beginning of your claim can ensure the greatest possible recovery and the greatest reduction of any valid liens.