Medical Liens – Don’t Get Sued after Your Personal Injury Suit is Over!

Federal programs like Medicare and Medicaid as well as private health insurers have gotten very aggressive with asserting liens against personal injury recoveries.  Federal law may preempt state law on these maters.  For example, if your health insurance is provided through your employer, it may constitute an “employee benefit” and thus be governed by ERISA (a federal statute, ironically named Employee Retirement Income Security Act). Third party collection agencies like Rawlings or Ingenix may be retained by your health insurer to aggressively pursue a lien against your personal injury recovery – whether by settlement or judgment following a trial.  In Georgia, hospitals also may have powerful statutory liens.

Don’t get stuck dealing with these claims after your lawyer is long gone.  Make sure your lawyer is competent in this complex area of the law.  Failure to resolve these liens can result in a lawsuit against you!  The federal appellate courts are teaming with litigation on these controversial issues.  Fortunately, recent decisions have increased some protections available to injury victims.  (See Bradley et all vs. Sebelius, 11th Circuit Court of Appeals)

Fairness dictates that these lien holders should be required to compromise their claims against the recovery based on several factors: 

1. What is the value of your claim compared to the value of the available insurance coverage?  If your claim is worth $500,000 but there is only $100,000 in coverage, you may have to settle for 1/5 the value of your claim. If you’ve compromised your claim, shouldn’t the lien-holder have to compromise theirs? 

2.   What percentage of your recovery went to attorney’s fees and litigation expenses?  Why should the lien holder get a free ride on the fees and expenses that you had to pay?

Be careful!  These are the real risks of pursuing a personal injury claim.  Make sure to retain counsel that is going to protect all of your interests, not just obtain a recovery and leave you holding the bag.

By Render Freeman

Partner, Andersen, Tate & Carr, PC

Duluth, Gwinnett County, Georgia