WE ALL NEED SOMEONE TO LIEN ON - PowerPoint PPT Presentation

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WE ALL NEED SOMEONE TO LIEN ON

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Title: Slide 1 Author: Valued Gateway Client Last modified by: Craig Vreeken Created Date: 8/16/2003 2:30:53 AM Document presentation format: On-screen Show – PowerPoint PPT presentation

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Title: WE ALL NEED SOMEONE TO LIEN ON


1
WE ALL NEED SOMEONE TO LIEN ON
  • Surviving In the Lien Jungle

2
LIEN TYPES
  • STATUTORY
  • Government
  • Private
  • CONTRACTUAL
  • e.g. Chiropractor

3
FEDERAL LIENS
  • Uncle Sam Needs You(r) Money

4
MEDICARE (42 USC 11395 y(B))
  • Notice Requirements
  • Statute of Limitations 3 years
  • Priority over other liens
  • Effect of Failure to Pay Double Damages

5
MEDICARE DONT CARE
  • If you say settlement was made without admission
    of fault
  • Payments were for pain and suffering
  • Plaintiffs verdict will be reduced by
    comparative fault
  • You didnt have notice of their lien
  • Query? 100,000 lien and 5,000 settlement

6
Radioactive Equals Proactive
  • Plaintiffs age
  • Payor in Medical Charts
  • Call Medicare

7
MEDICARE NUMBERS TO CALL
  • MSP Guideline Questions and Other Legal Issues
  • Maria Mendoza, MSP Guideline Supervisor (805)
    367-1051, Fax (805) 367-1155
  • Lori Cudahy, Third Party Liability Department
    (805) 367-1052

8
HOW TO PROTECT AGAINST MEDICARE LIEN
  • 1. Put Medicare on Check
  • 2. Have Plaintiffs attorney obtain letter
    authorizing payment to him
  • 3. Contact Medicare directly
  • 4. Have plaintiffs attorney indemnify company

9
Hospitals Can Opt Out of Medicare
  • If They Accept Medicare Payments, Cannot Assert
    Lien

10
Negotiation Tip 1
  • Plaintiffs negotiation options with Medicare
  • Reduced by procurement costs and attorneys
    fees.
  • Reduced or waived if little possibility of
    recovery
  • If you negotiate directly with Medicare, argue a
    reduction on that basis

11
REAL LIFE EXAMPLE
  • Example 61 y/o bicycle rider hit by car and has
    hip replacement.
  • Medicare reduction 28,000 to 9,000. How much
    can plaintiff claim in his lawsuit against you?
  • Can the hospital come after you or the plaintiff
    for the difference?

12
HOW TO ACHIEVE HERO STATUS
  • If Hospital Accepted Medicare Payment, plaintiff
    cant collect more than amount paid(Hanif,
    Nishimura)
  • Hospital Cant Claim More
  • Your Hammer In Negotiations

13
ILL BE BACK (FOR YOUR MONEY)
14
MEDI-CAL (Wel. And Ins. Code 14124.71-14124.791)
  • Notice MUST NOTIFY MEDI-CAL
  • SOL 3 years from date of settlement,judgement or
    award
  • Plaintiffs comparative fault N/A
  • Protect Always

15
NEW LAW ALERTOLSZEWSKI
  • OLSZEWSKI V. SCRIPPS(6/2/03)
  • CALIFORNIA SUPREME COURT
  • Overturns providers right to refund Medi-cal and
    go after any recovery obtained by plaintiff from
    third party defendant(not against 3rd party
    directly)
  • DECISION GOOD FOR INSURERS
  • Reinforces Hanif

16
HANIF
  • Case summary
  • Issue Can plaintiff make a claim for the amount
    of medical expenses billed or only what was paid?
  • Held Can only claim amount that Medi-cal
    actually paid.
  • Windfall For Insurance Companies

17
LEGISLATIVE RESPONSE?
  • Supreme Court We urge the Legislature to remedy
    this anomaly in a manner consistent with federal
    law.
  • Until that happens, continue to use Hanif.

18
Nishihama
  • Case Summary
  • Plaintiffs argument Hospital can still come
    after me.
  • Court Hospital has already been paid in full per
    its agreement with HMO
  • Windfall? Yes
  • Case Closed?

19
Quagmire

20
HOSPITAL LIENSCivil Code 3045 et.seq.
  • History Hospitals win one
  • 1992 CC 3045
  • Expands Hospitals Right to Recover
  • Includes All treatment, not just emergency room
    treatment
  • Maximum 50 of plaintiffs recovery
  • Notice? Yes
  • Statute One year from treatment
  • You must protect

21
HYPOTHETICAL 1
  • Hypo 50,000 in medical bills. 15,000 policy.
  • Timely Lien Notice From Hospital
  • Paid Out Policy With Honoring Lien.
  • Do you keep your job?

22
BACON SAVED
  • Mercy Hospital v. Farmers(1997)
  • Hospital only entitled to ½ of what the plaintiff
    got or 7,500.
  • If that happens, you can still resort to the
    Release.
  • Check your release language

23
SEEKING THE CONTRACTUAL DIFFERENCE THE NEW
BATTLEGROUND
  • Definition
  • Historical Overview (Nishihama)
  • Swanson v. St. John Medical Center
  • McMeans v. Scripps Health Parnell v. Adventist
    Health System
  • Implications to Insurers
  • The Bottom Line

24
HMOs Civil Code 3040
  • Newest Statute in the pantheon
  • Purpose limit balance billing
  • Who It Applies To Includes Kaiser, Blue Cross,
    Insurance Companies, IPAs or medical groups.
  • Limits Recovery
  • Only Applies To Plaintiffs
  • Formula Alert

25
How To Calculate
  • Costs to perfect lien(minimal) plus either
  • 1. Amount actually paid to providers(non-capitated
    plans)
  • 2. 80 of the usual and customary charges by
    non-capitated providers in the area(capitated
    plans)
  • Example capitated v. non-capitated
  • Challenge usual and customary(eg. Kaisers
    charges can be way out of line)

26
After Determining Amount of LienSubtract the
Following
  • 1. Reduction if attorney fees
  • 2. Reduction for plaintiffs comparative fault.
  • 3. Maximum cannot exceed
  • 1/3 of amount due to p if attorney involved
  • ½ due plaintiff if no attorney

27
WHY YOU NEED TO KNOW THIS
  • I GOT ALL THESE LIENS I HAVE TO PAY BACK

28
HYPOTHETICAL(EASY)
  • 15,000 settlement
  • Attorney Fees and Costs 5,000
  • Medical Lien(3040) 15,000
  • How much does HMO get back?

29
Hypothetical(MEDIUM)
  • 15,000 settlement
  • No comparative fault
  • Attorney Fees and Costs 5,000
  • Emergency Room 7,500
  • How much will plaintiff get?

30
Hypothetical(Who the hell knows?)
  • 15,000 settlement offer
  • Plaintiff 25 at fault(defense assessment)
  • Attorney Fees and Costs 5,000
  • HMO lien(3040) 10,000
  • How much does HMO get?
  • Answer subtract fee(9,000)
  • Subtract 50 comparative fault 1,500
  • 50 of that is 750.00
  • NOTE Plaintiff attorney negotiations with 3040
    providers can be very imaginative.

31
Bonus Point Hypothetical
  • 15,000 settlement
  • 5,000 in attorney fees
  • 10,000 in AAA first party med pay
  • 10,000 hospital
  • 5,000 HMO
  • How much will plaintiff get?
  • Answer 5,000
  • How much will hospital get?
  • Answer 3,330
  • HMO 1,670

32
WHY YOU NEED TO KNOW THIS 2
  • You Can Negotiate Directly!

33
All Other Medical Liens
  • Chiropractors, acupuncturists, massage
    therapists, witch doctors, faith healers.
  • All subject to negotiation
  • A problem for the plaintiff and his attorney
  • They cant come after you

34
Attorney Liens
  • Must protect

35
WORKER COMPENSATION LIENS
36
Labor Code 3852
  • Employer may recover from 3rd party tortfeasor
    total amount of compensation paid.

37
Labor Code 3865
  • 3rd party judgment or settlement is subject to
    lien of Employment Development Department.

38
Government Code 20250-20255
  • Right of Public Employees Retirement System to
    subrogate.
  • Also see McQuillan v. Southern Pacific Co. (1974)
    40 CA 3d 802. PERS cannot subrogate where the
    employees injury was the proximate result of the
    employers act.

39
Attorney Fee and Priority Issues
  • Quinn v. State of California (1975)
  • 15 Cal. 3d 162. Active litigant can force
    passive litigant to pay share of costs and fees
    common fund doctrine.

40
  • Gapusan v. Jay (1998) 66 Cal. App. 4th 734.
  • An employers right to reimbursement takes
    priority over the employees recovery and may be
    asserted after fees and costs are deducted.

41
How do I get the ?_at_ Intervenor to reduce the
Workers Compensation lien?
  • Understanding proportionate fault might help.
  • Da Fonte v. Upright, Inc. (1992) 2 C 4th 593.
    Civil Code 1431-1431.5 must be applied where
    the workers injuries are caused by the tortious
    conduct of both the employer and a 3rd party.
    The employers share of the fault is not
    attributed to the 3rd party defendant when
    calculating non-economic damages.

42
  • Kemerer v. Challenge Milk Co. (1980) 105 Cal.
    App. 3d 334. Plaintiffs negligence not imputed
    to employer for lien reduction purposes.

43
  • In order to determine amount of intervenors
    potential recovery, Threshold Level must be
    established per Associated Construction and
    Engineering Co. v. WCAB (1978) 22 Cal. 3d 829.

44
Threshold Level
  • Employer negligence as established by Jury X
    Total Damage Award determines Workers Comp.
    Carriers recovery.
  • i.e. If verdict 1,000,000 and Employer Fault 40
    (1,000,000 X 40 400,000) employer lien
    100,000, employer gets no recovery.

45
Labor Code 3854
  • If action is prosecuted by the employer alone,
    payments shall be considered as proximately
    resulting from such injury or death
  • Please see Breese v. Price (1981) 29 Cal. 3rd 923
    3rd party defendant can challenge lien by
    arguing proximate cause.

46
Purchase of Lien/Assignment of Lien
  • Hone v. Climatrol Indus. (1976) 59 Cal. App. 3d
    513. Court approves concept of lien assignments.

47
  • Quinn v. Warnes (1983) 144 Cal. App. 3d 309. 3rd
    party defendant entitled to deduction for full
    amount of lien, not just consideration paid for
    lien when lien assigned to defendant.

48
Be Careful!
  • Raisola v. Flower Street, Ltd. (1988) 205 Cal.
    App. 3d 1004. Employees attorney entitled to
    fee from lien assigned to 3rd party when employee
    prevailed in 3rd party case.

49
HOW TO CONTACT US
  • Bradley BostickBradley Bostick_at_aol.com
  • Christine Shawn Friestad Friestad_at_friestad.com
  • Greg Stanfield GStanfield_at_HannaBrophy.com
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