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The law creating the lien can be found at O.C.G.A. §§ 44-14-470-476. Basically any practice that has an actual Medical Doctor (MD) in the practice can place a lien upon any claim for injuries that the injured person has stemming from the accident. These liens should only be filed on people with no health insurance. If you have health insurance and a facility has filed a lien on you without processing the insurance payment, you must contact them in writing with your health insurance information, immediately.
First, we will discuss what the lien is and when it attaches. Next, we will discuss whether you can attack the amount of the lien.
Once properly filed, these liens are almost bulletproof and they are a real impediment to obtaining fair and just compensation for Georgia clients with serious injuries. The law creating the lien can be found at O.C.G.A. §§ 44-14-470-476. Basically any practice that has an actual Medical Doctor (MD) in the practice can place a lien upon any claim for injuries that the injured person has stemming from the accident.
It is not a lien on the person, it is a lien on the claim itself. It is important to note that this statute does not cover chiropractors. These liens are brutal though as I will explain below and the best defense is going on offense in the case early on. The really crummy thing about the statute is the Court of Appeals has clouded up the “statute of limitations.” On its face, O.C.G.A. § 44-14-471(a)(2) says:
“(A) If the statement is filed by a hospital, nursing home, or provider of traumatic burn care medical practice, then the statement shall be filed within 75 days after the person has been discharged from the facility; or
(B) If the statement is filed by a physician’s practice, then the statement shall be filed within 90 days after the person first sought treatment from the physician practice for the injury.”
The problem is that if you have notice of the debt, the lien still arguably exists on the settlement proceeds.
“Under the language of the statute, the Hospital has a valid lien on all causes of action held by Barber against Great Sutton and Spiars. Furthermore, this lien attached at the moment Barber received treatment because the statute states that a hospital “shall have a lien for the reasonable charges for hospital care and treatment … upon any and all causes of action accruing to the [injured] person.” The statute sets out no conditions precedent such as filing requirements for obtaining a valid lien. Therefore, the Hospital’s late filing has no effect on the validity of the lien.” Macon-Bibb County Hosp. Authority v. National Union Fire Ins. Co.
793 F.Supp. 321, 323 M.D. GA (1992)
These medial liens become a real problem because, unlike Georgia Workers Compensation liens or some health insurance reimbursement claims, Georgia medical liens are not blocked by the “complete compensation” rule. Holland v. State Farm Mutual Auto. Ins. Co., 244 Ga.App. 583 (2000). Furthermore, the Doctors holding the lien are not even required to pay a pro-rata share of injured person’s attorneys fees spent in getting the settlement or verdict. See Watts v. Promina Health Sys., Inc., 242 Ga. App. 377 (2000). One nuance to the law though is that for Georgia wrongful death cases, the lien does not attach to the portion of the wrongful death claim for the value of the life lost. Nash v. Allstate Ins. Co., 256 Ga. App. 143 (2002). In other words, to get around the medical lien, your Georgia wrongful death lawyer should only file the portion of the wrongful death case seeking the value of the life and leave the Estate’s claim alone.
It is important to know that the Georgia medical provider cannot sue the injured person directly unless they take a settlement and ignore the lien in which case the medical provider can sue to go after the proceeds of the settlement itself. Hospital Auth. of Augusta v. Boyd, 96 Ga. App. 705 (1957). We regularly see this situation usually arise where the hospital has filed the lien and sent notice to the at-fault driver’s insurance company, in effect ensuring that they get paid. Once that lien is filed, it is almost impossible to get the insurance carrier to settle without putting the hospital on the check or without a written release of the claim. In other words, once a sizable lien is in place, it is very difficult to settle your own case without an attorney. I have found that the best practice is to approach the physicians early before you have settled or tried your case and strike a deal as a virtual collection agent because there is a mutual interest in the financial recovery. Your leverage is the threat to just walk away and not pursue the claim.
I have a client that called with a $60,000.00 emergency room bill and only $25,000.00 in Georgia insurance coverage on the at-fault driver and she has Medicaid. I told the hospital that they should bill Medicaid because if they just stand by and insist on being paid out of the case the client has no interest in filing the claim. This is classic “in the box” thinking by the hospital and it just leads to unpaid bills for all involved eventually.
Thanks to one of the more active members of the trial bar, Charlie Gower, the answer is “yes.” In Bowden v. Medical Center, the Georgia Supreme Court reviewed a case where a person was taken to the ER after a car accident and billed $21,000 for the medical care. The insurance policy was only $25,000, so the problem is obvious. The lawyer for the plaintiff sent discovery to the hospital seeking documentation of what the hospital charged for the same procedure for medicare, Blue Cross, Tricare and for uninsured indigent folks. The hospital refused to provide any of the information. The trial court ordered the information to be produced and eventually, the Georgia Supreme Court decided that that data was at least discoverable and possibly admissible at trial as evidence of what is a “reasonable” medical bill.
This case is a Catch 22, however. Insurers can arguably now seek the same type of discovery, especially from Tenet hospitals, to argue that certain medical bills are beyond unreasonable. It will be interesting to see how this affects the value of car accident cases in Georgia.