Since you have an attorney you should be asking him/her this. In situations like yours an attorney usually negotiates a reduction in the doctor’s bill.
DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.
This is why you have a qualified and experienced personal injury attorney. All lose ends must be resolved - fairly.
Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and educational purposes only. No attorney client relationship has been formed or should be inferred. Please speak with a local and qualified attorney. I truly wish you and those close to you all the best. Jeff www.nyelderinjurylaw.com
Ask your attorney about this. Most liens are negotiable. Some are not!
In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.
Each insurance company has its own way of working out liens. It also depends on California State law as well as the adjuster on the file. Discuss the numbers with the attorney. When dealing with injury cases and the law in general, one would think that fairness and common sense should always apply. You may be finding out that this is not always the case. Most personal injury attorneys are well versed in the manner in which liens are handled and resolved. Good luck with your case.
Your suggested formula is not the law or practice in California (1/2 remaining amount). Some liens can be negotiated, some not. The attorney fees are normally on gross recovery, not on net after liens. You need to speak with your lawyer on this matter.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
I believe the formula to which you are referring is statutory liens created under Civil Code Section 3045.4; however, I do not believe it applies to voluntary liens.
I agree with the other answer so far in that a) you should talk to your attorney about this, b) not all liens are negotiable, but many are, and c) attorneys' fees are usually charges based on the gross recovery, not the amount recovered after medical charges.
For your information, below is Civil Code Section 3045.4:
"Any person, firm, or corporation, including, but not limited to, an insurance carrier, making any payment to the injured person, or to his or her attorney, heirs, or legal representative, for the injuries he or she sustained, after the receipt of the notice as provided by Section 3045.3, without paying to the association, corporation, public entity, or other institution or body maintaining the hospital the amount of its lien claimed in the notice, or so much thereof as can be satisfied out of 50 percent of the moneys due under any final judgment, compromise, or settlement agreement after paying any prior liens shall be liable to the person, partnership, association, corporation, public entity, or other institution or body maintaining the hospital for the amount of its lien claimed in the notice which the hospital was entitled to receive as payment for the medical care and services rendered to the injured person."
First, you are right. It doesn't make sense in your example that someone would ever agree to a settlement where $200 was split by the attorney and client. However, this is why most health care providers and lien holders will reduce their lien in order to help resolve the case.
Next, in terms of your specific question as to whether the provider is entitled to the full amount they paid, it depends on what type of lien holder they are; do they have an ERISA lien, a hospital lien, a statutory lien as with Medicare or Medicaid, or do they have some other form of lien or right to subrogation or reimbursement? There are different laws that govern different types of lien holders.
The bottom line is that your attorney should negotiate down any existing liens no matter their type or form to ensure that the settlement is fair to all involved, including you, the client.
Attached is a link to a YouTube video that I have created addressing liens and a link to my blog where I address lien issues and other questions injury victims may have.
Practically speaking, nearly all liens are negotiable. Some can even be completely extinguished. The complexity comes in the type of lien which is being claimed and whether the lien claimant is one who will likely pursue the lien by suing the injured person. You should consult with your attorney or a lien consultant if your attorney is not very knowledgeable in this area.
Ask your attorney. Though liens may be enforceable prior to filing suit depending on state law, many times a lien is not enforceable before then. Either way, they are typically negotiable.
Consult with your attorney. These liens are normally negotiated down.
Nothing in this communication should be construed as creating an attorney client relationship. This is for informational purposes only. Attorney will take no action on your behalf unless and until a written retainer agreement is signed. There are strict time deadlines on filing claims and, as such, you are advised to consult with and retain an attorney immediately to file such claims timely or you will lose any right to recovery.
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