As a San Diego car accident lawyer, I frequently deal with the unfortunate issue of a liable party being under-insured for the damages they can cause. Look to California Civil Code section 3045.1 ( http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/14/4/s3045.1 ) to see the statutory language providing for the healthcare provider's lien. But, understand that there is a difference between the 'lien' and the 'account' for the hospital's services. The 'lien' is a security interest to collect money on the 'account.' If the lien is insufficient to collect payment in full on the account, the account balance can remain the accident victim's responsibility to pay. Think of it this way, you get a loan to buy a car. The bank can repo the car if you don't pay the loan but if the loan balance is $5k and they only repo a $4k car, the bank will look for $1k payment to close the account. The same principle applies to hospital liens. Therefore, when looking at §3045.1, you will see that the healthcare provider is limited by a mathematical equation as to how much of the settlement the hospital can collect on its lien but after that payment is applied to the account the hospital/collection agency will seek payment on the balance. Often, there is leverage to apply to the hospital's bill which a proficient personal injury attorney would be able to assist you (even though I understand hiring counsel causes you concern due to the limited settlement funds). It may be worth considering collecting on the third party policy limits (which you probably should not do without discussing your matter with an attorney) and then hiring a lawyer on an hour rate to negotiate the hospital's account.
Separately, you asked about the lien being "perfected" by the notice and mailing requirements in §3045.1. You are correct that the lien is avoidable if it is not properly perfected but that does not make the underlying account go away - just the security interest. Moreover, the third-party insurance company will not likely care if the lien is "perfected." Frequently, if the third-party insurance company even gets a hint or whiff of a lien, they will put the lienholder on the settlement check to ensure that the lienholder does not come back after them. The insurance company may not care if the lien is not properly perfected and in the absence of hiring an attorney, overcoming this obstacle will be very difficult. In summary, the lien is not 'automatic' as you write above but the casualty insurer may treat it that way.
As stated above, this is an incomplete answer but an attempt to provide a cursory overview of a subject that attorneys 'practice' and improve upon during the entirety of their legal careers. This response is not meant as legal advice or as a legal opinion. Such advice would be impossible or impractical without additional information and more facts giving rise to the question. A consultation with an attorney is necessary.
If your bills are paid by Medical or medicare you have a super lien imposed on you by statute. There is no further need of a medical lien to be filed. An attorney has the obligation to pay the lien or be responsible for it. Medical bills where your own insurance companies pay for the bills have to send you a subrogation letter or file liens. Some providers such ambulance services or private clinics also need to file liens. You have an obligation to pay them all. The difference is that in small recovery case, such as the one you are addressing here, there is a Cal statute that provides that the medical super liens providers, cannot get paid more than 50 percent of what plaintiff are getting. This works as follow: Recovery is $15k. Attorney gets $5k , there is $10k remaining. Client takes $5k and medical providers get the last $5k. The latter amount is apportioned among all providers and your attorney would write letters to all concerned to take a prorated amount. This is just one of the myriad ways your attorney could negotiate and there are variations. That is why it is always better to let the attorney handle these type of claims. Best of luck to you.
This answer is provided by California Accident Attorney Manuel A. Juarez, Esq., 510-206-4492. Abogado de Accidentes de Autos de California: 510-206-4492. Abogado de Lesiones de Accidentes de Autos, provides answers of a general context. These answers are not intended to form an attorney client relationship. Oakland Abogado Accidentes Autos, Abogado de Lesiones Personales, Abogado de Accidentes de carros, Abogado de accidentes de Peatones, practices in Antioch, Berkeley, Concord, Oakland, Hayward, Martinez, Newark, Richmond, San Francisco and San Rafael. El abogado de lesiones y heridos en accidentes de autos, is licensed only in California. This information is good only in California and it is not to be taken as legal advice on car accidents, personal injury, divorce, bankruptcy or in any other type of situation. Esta respuesta es del Abogado de Accidentes de Autos, Abogado de Lesiones Personales, Abogado de Heridos en Accidentes de carros, Manuel A. Juárez, 510-206-4492. Abogado Hispano de Accidentes, Abogado de Divorcios, Abogado Latino de Accidentes, Abogado de Accidentes de Oakland, Hayward, San Francisco, California. Estas respuesta son solo para información general y no consisten en consejo legal sobre divorcios, mantención de esposas, mantención de hijos o bancarrotas. Las respuestas son comentarios legales que no forman una relación de abogado y cliente. Manuel Juarez, Esq., esta licenciado solo en el Estado de California.
Attorney Gnau lays it out pretty well. The fact is in 20+ years I have only seen one 3045 lien that was done correctly. They usually mess up on the mailing / notice requirements and do not serve all the correct parties/entities. You are best trying to negotiate a deal that everyone can live with.
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