What legal action can I take against a patient’s personal injury attorney who refuses to sign a notice of lien before a CA personal injury case settles?
I treated a patient for a few months for a car accident injury. A claim has been made by her attorney and they are negotiating a settlement with the insurance company.
I sent a notice of lien for the medical bill to the attorney, however, she refuses to sign it. What rights do I have in regards to the lien? Is there a legal course of action I can take against the attorney?
There are several different kinds of “liens” under California law and even separate “liens” pertaining to healthcare provided to Personal Injury victims such as in your question.
Assuming that the care that you provided does not qualify for Civil Code §3045.1 protections, you have a lien contract. The parties to the contract are typically the healthcare provider, the patient, and sometimes the attorney. The nature of the contract is to secure payment for the healthcare services rendered when needed by the patient even though payment is delayed until the Personal Injury matter is resolved. Accordingly, the contract provides a security interest to the healthcare provider.
The contract may have terms that the patient directs the healthcare provider’s payment to be made out of the claim’s proceeds. Since each contract is different, I cannot advise you of your particular remedies against the signatory without seeing the lien contract. Note, however, the attorney is not a signatory and she has little to no involvement in the lien contract now. Attorneys may sign a lien for several different reasons, such as to secure services before they are provided or to acknowledge the client’s promise of differed payment to the healthcare provider. However, the attorney does not step into the shoes of the client. Rather, the attorney’s duties are only to the client and sometimes the attorney’s hands can be tied by the client’s directions.
At this stage, with services are rendered, there is little practical basis for the attorney to sign the lien contract. However, in practice that does not mean that the healthcare provider will not get paid. Rather, the healthcare provider should bring the security interest provisions in the contract to the attorney’s attention and claim the security interest. However, this does not mean that a healthcare provider will get payment in full (unlike an escrow instruction, for example). Rather, the following scenarios are likely: 1.) you reach an agreement for payment (94%), 2.) the attorney files the money with the court and forces you and the patient to go to a judge to fight over it (1%), or 3.) the attorney follows direction from the client concerning the disposition of the funds (which may not include payment to you in-full or at all) and you pursue a collection action against the patient separately pursuant to the terms of your lien contract (5%).
Cooler heads should prevail, however. The patient understands that you were providing a service and that you deserve payment both legally and morally and the attorney does not want to close the matter with the likelihood of your collection litigation against her client looming, if she can help it. As far as any remedy you currently have against the attorney, there does not appear to be any from the content you provided.
Your issue sounds like you have a simple contract lien for medical services against the patient and not a statutory emergency medical lien.
Normally, you have the patient sign this type of agreement at the time services are rendered if you know that it arises out of an accident in which it is likely a claim will be made and you are not paid directly by the patient's medical insurance.
In this instance the treatment was already rendered, so it will be difficult to get the attorney to sign anything. I would ask the attorney to get his client to sign an acknowledgement of the lien, with the understanding the lien will be resolved out of the settlement proceeds. Normally, the patient's attorney will negotiate a settlement of the medical lien with you or your collection service as a part of the compromise settlement if the case does not go to trial resulting in a full recovery.
You can also put the other person the patient is suing and his or her insurance carrier on notice of the lien and they will likely require a release of lien or your name on the settlement draft before he or she will issue a settlement check to the patient and their lawyer.
If you do not have the ability to make the foregoing happen, you will need to hire a lawyer to draft and serve the lien notice to the patient's attorney, patient and other party and insurance company and attorney. Good Luck.
This message does not create an attorney-client relationship nor is it legal advice.
The other attorneys provided some good information, and I will not try to duplicate their responses, just supplement. First off, you do not say if the patient promised to sign a lien, and then did not, why you treated for free in the first place, etc. (Good questions to ask on future cases). Also, why is the attorney not signing the lien? Are you a chiropractor with a $10,000 dollar bill? I refuse to sign those kinds of liens as well. I also assume your patient does not have med pay from their own insurance? (Check on this).
Assuming you provided reasonable treatment related to the injury causing event, I suggest you do two things. Send the at-fault insurance company a certified letter advising that you are asserting a lien for your services and enclose a copy of your bill.
Then send the patient a certified letter explaining that their attorney will not sign lien, so you will be forced to begin collection efforts unless the lien is signed or the bill paid.
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