Medical liens from a client’s medical providers are one of the most challenging areas of modern personal injury law, as a personal injury lawyer, such as from The Law Offices of Ryan Quinn, PLLC, can explain. At the onset, it is vital that one must distinguish between a lien and right of subrogation. The term “lien” typically refers to the right to enforce a claim against a specific property to be applied to the discharge of a specific debt. In personal injury actions, this involves when a third party, such a health insurer, or health care provider, has a right to obtain part of the settlement or judgment before the monies are paid to the claimant or plaintiff. Liens can be created by statute, contract, or by common law. In short, liens must be honored; failure to
honoring them can result in harsh penalties and sanctions against both client and his or her counsel.
The term subrogation generally refers to the right of a party secondarily obligated to
recover a debt it has paid from a party primarily obligated to pay the debt. Subrogation arises by statute, contract, or common law. This is most often seen in the automobile injury litigation context as a UM/UIM (uninsured/underinsured motorist coverage) carrier having a right of subrogation by statute (Va. Code§ 38.2-2206) to a portion of the recovery of the settlement reached by a claimant/plaintiff. It also applies when a health insurer has paid medical expenses on behalf of an insured and seeks recovery back from the wrongdoing party.
One of the most important statutes to consult in dealing with subrogation claims is Virginia Code§ 38.2-3405. This is typically known as the anti-subrogation statute. That statute bars any non-ERISA qualifying health insurer from including in their policies “any provisions for subrogation of any person’s right to recover for personal injuries from a third person.” It applies to all contracts delivered or issued for delivery to provide payment of benefits to persons residing in or employed in the Commonwealth of Virginia.
The “liens” referenced in this section of the outline are those for health care providers
and medical providers that are mandated by statute. While they do not often arise, one should be aware of them. Virginia Code§ 8.01-66.2 deals with hospital and medical type liens that must be paid back when the insurance is insufficient to cover the amount of the charges. Virginia Code§ 8.01-66.9 deals with liens of the Commonwealth of Virginia. It should be noted, that liens asserted by the Commonwealth of Virginia may be reduced by motion filed by the claimant/plaintiff, provided a basis for such reduction is set forth. However, reduction of the lien by the court does not give the court the authority to actually discharge the underlying debt. Rector & Visitors of UVA v. Harris, 239 Va. 119, 387 S.E.2d 772 (1990).
Medical liens are an unwelcome aspect of many personal injury claims. However, with competent legal counsel, this minefield can be navigated without danger to your future claim.
If you’ve been injured and are wondering if you have a strong legal case, don’t wait to talk with a personal injury lawyer. Contact a law firm today for a consultation.