Medical Liens and Your Settlement

Things don’t always go as we like. And despite our best efforts on some occasions the settlement from your auto accident doesn’t really rise to the level sufficient to cover your treatment costs in total. Thankfully there are statutes that give you some hope!

NC General Statutes 44-50 and 44-51 give you some assistance in this sort of situation. What the law essentially says is AFTER attorney fees, if the total medical bills that are protected by liens is greater than HALF of what’s left over, then you can take that total (after fees…remember that!) and split that amount in half. One half would go to you, the victim. The other half is split pro rata between the lien-holders. So let’s talk about pro rata and what “lien” means.

“Pro-rata” is lawyer talk for “percentage share.” Let’s look at an example:

100,000 Settlement. $30000 fee. $70000 left over. Let’s say the hospital is owed $30000, and another provider is owed $25000 (both with perfected liens). If you take that $70000 and divide it in half, then you have $35000/$35000. That’s less than the total of the liens, which is $55000. So take $35000 and divide it by $55000. You get roughly .63. That means you then multiply each bill by that percentage number, so in effect each gets about 63% of their bill paid. So the hospital gets $19009.09 and the other provider gets $15090.91, which totals to $35000. Providers get their share of $35000, and you get $35000.

So, that leads us to the “lien” question. A lien is a right to be paid from a defined set of funds. In this situation, the providers have to only do two things to perfect their lien: Provide the records and bills free of charge and state in writing to you or your attorney that they are asserting a lien. If there’s a lien, you HAVE to pay the providers SOMETHING from your settlement; you can’t just ignore them. But this is what the pro rata thing above is for. If there is no lien on a bill that you owe, but there isn’t enough money to pay the lien-holder in full, then you CANNOT pay the non-lien-protected bill to the detriment of the lien holder. That opens up a whole other can of worms for another post…

The purpose of this law is to ensure that you, as the victim, get something out of the settlement. I’m glad it’s still here, but it’s pretty wacky, huh?

This stuff is complicated! Don’t try to do it on your own. Get an attorney for professional help with this stuff. Call me at 919-929-2992.

§ 44-50
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50 Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

44-50. Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

      A lien as provided under G.S. 44-49 shall also attach upon all funds paid to any person in compensation for or settlement of the injuries, whether in litigation or otherwise. If an attorney represents the injured person, the lien is perfected as provided under G.S. 44-49. Before their disbursement, any person that receives those funds shall retain out of any recovery or any compensation so received a sufficient amount to pay the just and bona fide claims for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services, after having received notice of those claims. Evidence as to the amount of the charges shall be competent in the trial of the action. Nothing in this section or in G.S. 44-49 shall be construed so as to interfere with any amount due for attorney’s services. The lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered. Except as provided in G.S. 44-51, a client’s instructions for the disbursement of settlement or judgment proceeds are not binding on the disbursing attorney to the extent that the instructions conflict with the requirements of this Article. (1935, c. 121, s. 2; 1959, c. 800, s. 2; 1969, c. 450, s. 2; 1995 (Reg. Sess., 1996), c. 674, s. 3; 2001-377, s. 2.)

§ 44-50.1
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50.1 Accounting of disbursements; attorney’s fees to enforce lien rights.

44-50.1. Accounting of disbursements; attorney’s fees to enforce lien rights.

      (a) Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.

      (b) The certification under subsection (a) of this section shall include a statement of all of the following:

      (1) The total amount of the settlement.

      (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid.

      (3) The total attorney’s fees.

      (c) Nothing in this Article shall be construed to require any person to act contrary to the requirements of the Health Insurance Portability and Accountability Act of 1996, P.L. 104-91, and regulations adopted pursuant to that Act. (2003-309, s. 1.)

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NC Worker’s Comp: Is your claim accepted?

If you have a worker’s compensation claim in NC and you’re lucky enough to get a response from anyone, you might see a Form sent by your employer/insurance carrier that will be either listed as a Form 60 or a Form 63. What’s the difference?

A Form 60 is an acceptance of the claim. They’re pretty much saying they’re on the hook for your claim, and it’s fairly hard for them to get off the hook if they do this. Because of that you are more likely to see an adjuster file a Form 63.

Technically, a Form 63 is supposed to be used when the insurance company for your employer isn’t sure if a claim is one that should be accepted (we tend to use the term “compensable” in this business). Based on the rules, the carrier then has 90 days to investigate the claim and then deny if they think they have the legal grounds to do so. In the even that the carrier takes no action within 90 days the claim is deemed accepted. But that may not be the end of the argument…

There are still several issues regarding compensability that might arise. Oftentimes the Form 63 is used as a kind of tentative “maybe” by the carrer. They want to see how the claim shapes up and if it gets to wacky or expensive, then they may still deny it within the requisite time period. They might even argue that they meant to deny it but had some good reason that they didn’t and should still be allowed to. And even if you get a Form 60, it may be very limited as to what they are accepting; they might be saying we’ll pay for this body part’s treatment but not these others.

Pretty much everything in the law is wackier than it needs to be, and Worker’s Comp is no exception. Hell, it’s wackier than most other bits. So be on your guard. And maybe call an attorney. Call me at 919-929-2992.

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Lost Income from your Injury Claim

It’s a totally natural consequence of getting injured. If you’re hurt, often times you can’t work, so you are losing money. Does that affect the value of your claim? Heck yeah it does.

But like everything involving personal injury claims in North Carolina, the devil is in the details.

Can you just say, “Hey, Snake Farm, I missed 2 weeks of work and that’s worth $75,000,” and expect to get that? You bet you can’t. Of course it’s not that simple.

So, how do you help to make sure the lost wage aspect of your injury claim is strong? I’m so glad you asked.

The first step is to have a legitimate reason to miss work. Don’t @ me, I’m on your side, but this is the time for truth. If you have a sore ankle but you can drive and have a sedentary job, should you really be missing work? Remember, in North Carolina you have an affirmative duty to mitigate your damages, which means that if it’s within your reasonable power to make your damages lower, you can’t benefit if your damages get artificially inflated. So just make sure your inability to work is reasonable. Conversely, if you are able to work, just do that.

The second step goes hand in hand with the first. Who is the best person to say you can’t work? YOUR DOCTOR! Whoever that is – family doc, chiropractor, whatever – is best-positioned to state that due to the injuries you suffered in the auto accident (or whatever) of (insert date here) you are unable to work for ____________, or you should avoid ___________________ (which may then mean you can’t work, depending on your job’s ability to accommodate your restrictions).

The third step is making sure your employer is on your side. If your employer will provide on their letterhead a statement that you a) work there, b) missed X amount of time, and c) that time is worth Y, then that’s the best lost wage documentation you can hope for. That letter, combined with an out of work letter from your doc that matches up is the best combo of evidence you can have to support a lost wage claim.

Granted, some of us can’t do a lot of that. What if you’re self-employed? That puts you in a bit of a pickle, because then instead of having a disinterested third party attesting to your lost income, it’s you, which is inherently a bit less believable. Still, there are ways around it, primarily showing a record of income via your taxes from years prior and coupling that with an out of work note, you might be able to get by. But as they say, there’s many a slip twixt a cup and a lip.

Look, like a lot of injury claim stuff, this can get complicated. All the more reason to talk to an attorney. Call one. Call me. 919-929-2992.

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Waiting on Medicaid: Personal Injury Claims and Medicaid

When you’re injured in North Carolina due to someone else’s negligence, you should use your health insurance – whatever it is! You can’t rely on anyone else to pay your bills up front, so use your health insurance!

When your health insurance is Medicaid, that’s a good thing and a bit of a bad thing (but not too bad). Let me explain…

Medicaid is great in that it pays for your health care and keeps you out of collections, which is fantastic on both fronts. Huzzah!

Medicaid causes a bit of a problem though in that Medicaid has a right of reimbursement from third party claims. What that means is if Medicaid pays your health care costs and you get money from someone else (the “third party” noted above) to reimburse you for those costs, then you have to pay Medicaid back.

That’s not the end of the world. You would normally have to pay at least part (if not all) of your outstanding medical expenses from your settlement anyway. And it actually helps to have Medicaid in this instance because of Medicaid’s steep discount; they only pay pennies on the dollar for your treatment, so instead of a $1000 bill paid in full, you might be able to pay about $300 to Medicaid. Not bad.

The major drawback to having Medicaid in a personal injury case is the TIME that it takes. You see, you have to wait for Medicaid to tell you how much they want back from your settlement. And it being what it is, it takes FOREVER for them to get back to you. They ask for 6 weeks to respond, but it’s normally more like 8+. And on top of that, that number is only good for 30 days, so if you don’t get the case settled and disbursed in that time period, you have to request an update, which will probably take another month or two. Ugh.

Overall, Medicaid is great. It’s good that it pays your bills, and when you pay them back it’s heavily discounted. But it creates a time suck on your case that can be a drag. Just be aware and be as patient, but as persistent, as you can. And get a good attorney. Call me at 919-929-2992.

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Does a Treatment Delay Hurt My Claim?

This is one of the most common mistakes people without competent personal injury claim representation make: They wait too long to get medical attention after an accident.

Why does that matter? Well, in a perfect world it wouldn’t, right? But remember, this is not a perfect world; it is a world driven by insurance company interests, and they have the checkbook, so you have to consider their responses to your requests. When they see what they refer to as a “gap in treatment” or a “treatment delay” they will point at it with one of those giant foam fingers and say, “See! You weren’t really hurt after the accident or you would have gotten treatment sooner!”

Is that true? Not necessarily. But, as you probably know from the current political scene, truth doesn’t really matter. What matters is perception. And a jury – who is the ultimate arbiter of the value of your claim – might be VERY susceptible to the argument of “if you ain’t treating then you ain’t hurt.” Remember, you’re having to cater to the lowest common denominator here, so the more simple and obvious you make things, the better. So how do you make your claim simple and obvious?

Well, after an accident you go get some sort of treatment. I don’t care what. Primary Care Provider, Urgent Care, whatever. Just go somewhere and get your complaints documented. If it’s just some Owies, then fine, you blew a couple hundred bucks that you should be able to get back. But if it’s more than that, and you are still hurting after a few days, GO BACK OR GO SOMEHWERE ELSE! PT! Chiropractors! Whatever. Go and get it documented that you’re hurting and how you’re hurting AS SOON AS POSSIBLE following the accident.

Trying to tough it out won’t help your claim. Hoping you’ll get better on your own won’t help your claim. Trying not to make a “big deal” out of it won’t help your claim. ALL that does is HELP THE INSURANCE COMPANY. Why would you help them?

If you’re hurt in an accident, do yourself a favor and call a personal injury attorney. Call me at 919-929-2992.

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Hospital Bills from Auto Accidents

The perennial question in this business is “What should I do with my hospital bills after an accident?”

There is A LOT of confusion over this topic, and while I’d like to think that my little blog post will set it straight, I know it won’t. Still, I shall try.

When you go to the hospital after an auto accident the hospital billing folks can put you in a mess of a situation. If you have health insurance, what they should do is document that your health insurance is the primary payer and bill them accordingly. What they should not do is take down the at-fault party’s auto insurance info and pretend like they can bill them. They can’t!

“What’s this?” you ask. “I thought that the at-fault party should pay for all of my bills!”

Well, yeah, in theory, they should. But we aren’t there yet. IF that’s coming, it’s coming later in the process, but not now.

In the meantime, the NUMBER ONE THING YOU CAN DO TO SAVE YOU FUTURE GRIEF AFTER AN ACCIDENT IS MAKE SURE ALL OF YOUR HEALTH CARE PROVIDERS ARE BILLING YOUR HEALTH INSURANCE.

“But why?” you ask. The main reason is that we are NOT what’s called a PIP state. PIP stands for Personal Injury Protection. In states that have those sort of policies, YOUR auto policy is the primary payer for any auto-accident-related medical expenses. Even if you have health insurance, they jump in front of that insurance under these circumstances.

North Carolina is a liability state. We all (are supposed to have) liability insurance. That sort of policy covers you for what you might have to pay victims of your negligence. That is NOT a primary payer; it is a potential reimbursement mechanism.

The best way to look at it is this way: In NC YOU own your medical expenses until you MAKE someone else buy them from you. So, since you own them, you should use your health insurance to make them lower (remember, your health insurance will have the right to contractual adjustments that will lower the overall costs. In the end, that helps to make sure that a) your expenses are less than they could be, and b) it might also increase your take-home amount when/if you get an award from the liability carrier.

I know. It’s all needlessly complicated, but that’s what we have. As always, call me when this stuff comes up. 919-929-2992.

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Got a Ticket? Hire an Attorney

Traffic Attorney

Obviously, I’m a little biased, but I think if you get a ticket, hiring an attorney is pretty much always a good idea. But why is it now an even better idea?

In North Carolina speeding tickets can lead to pretty harsh consequences. Your insurance rates can double for 3 years, or you can even lose your license if you make the wrong move. And making the wrong move is REALLY easy if you don’t know this stuff.

What’s also easy is picking up the phone and talking to an attorney about your ticket. Most of us will tell you what’s up with a free phone call. Is paying off your ticket a good idea? I’ll tell you if it is and BOOM, you’re done, free of charge. But if it isn’t, I’ll tell you what might be a better outcome and how I might be able to get it for you.

That’s always been true. But with Covid-19 haunting us and making what used to be simple not so simple, things are wackier than before. If you wanted to show up at the courthouse and play Perry Mason for yourself, then back in the day that might have been fine. But now, do you really want to run the risk of piling into a court room with 200 other randos to blindly grope your way through the legal system? No. You don’t.

It’s simple: If you get a ticket, call an attorney. I handle tickets in Orange County, Chatham County, and sometimes Alamance, Durham, and Wake Counties, depending on the ticket. If you get one, call me at 919-929-2992 and I’ll talk you through it. Maybe it doesn’t make sense to hire an attorney. But maybe it does. At least this way you’ll know.

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Who Handles the Med Pay Coverage after an Auto Accident?

If don’t understand the question, first, let’s talk about what Med Pay is, really briefly: In North Carolina, you can buy extra coverage on your automobile insurance policy that’s called “Medical Payments” coverage, or “Med Pay” for short. It’s no-fault, very limited, coverage that will repay your for medical expenses incurred as the result of an automobile accident regardless of fault. It doesn’t raise your rates, so if you have it, use it! I’ve written tons of articles on that, so hearken back to those.

Once you understand what it is, and that it should be used, THIS question arises: Who handles it? Should you handle it? Should your attorney? Should you let some health care provider access it directly? The answer, as usual in the legal field, is, “it depends.”

Generally speaking, the safest play is to let your competent, experienced personal injury attorney obtain the med pay and hold onto it until it’s time to disburse ALL of the funds (liability settlement, too). That way, your attorney can tell what bills MUST be satisfied with those funds, and to what extent. You see, just because there’s a balance owed on the bill doesn’t mean that the settlement funds HAVE to be used to satisfy it. The providers have to have a validly perfected lien to have a right of recovery as to these funds. And even then, under certain circumstances, the providers might not have a right to have ALL of their bill paid, to your detriment. This is why it’s important to have your attorney handle this, because your attorney can determine who HAS to get paid AND HOW MUCH, to make sure your recovery is protected by your rights.

Of course, you can collect the Med Pay on your own if you want. Sometimes this is critical for a victim to use as a little account to fund co-pays which they otherwise couldn’t do. So if this is necessary, fine, but do be warned of the above issue; ignoring liens and paying that money to yourself or non-lien holders can have consequences you would be better to avoid. This is why having an attorney handle the Med Pay makes the most sense.

Sometimes health care providers want to access your Med Pay directly to pay their bill. First, if you have health insurance, my question would be why are you using that? Often times providers don’t want to use health insurance because, frankly, they get paid less when they do. But also, it can be a problem for you because you have a co-pay to pay EVERY time you go, which can add up quickly. Still, if you can use health insurance, you should, and that would get rid of this problem. If you don’t have it, or can’t use it for whatever reason, then having the provider access the Med Pay directly is a good way to make sure they are paid. Still, same problem as above, if you pay some lien holders or non-lien holders, and don’t pay lien holders, then you could find yourself in trouble.

It shouldn’t be this complicated. But it is. So until it’s simpler, call an attorney like me to get help ASAP. 919-929-2992.

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How can you help someone who’s been in an auto accident?

Maybe you know someone who’s been in an automobile accident, or fell at a store, or was bitten by a dog – whatever; there’s a chance that you do know someone who’s going through that RIGHT NOW.

What can you do to help them? Here’s the best advice you can give them:

TELL THEM TO CALL A LAWYER!

Why? I thought you’d never ask! This is what you should tell them:

First, the number one thing I worry about for people who have accident claims is not that they’re going to call another lawyer, but that they’re not going to seek counsel at all. Where claims begin to fall apart is right at the beginning, so the earlier you seek help, the less damage you’ll accidentally do to your claim.

Second…yep, you’re hurting your claim. Chances are you’re talking to the insurance company’s adjuster and in so doing you’re giving them information that can and will be used against you in the valuation of your claim! Adjusters are trained to ask questions in such a way as to elicit responses that will harm your claim. If you’re talking, you’re losing, so watch it!

Third, this isn’t your job! What I mean by that is that you probably just don’t know what you’re supposed to do and more importantly what you’re NOT supposed to do to make your claim work out as best it can. Whatever your job is, were you fantastic at it the first hour you attempted it? Probably not. You probably made lots of mistakes that someone else had to fix. The problem with this is that you don’t get take-backsies in this situation! There are no do-overs! No Mulligans! When you screw up your claim, your claim is screwed.

Finally, you have more important things to do. Why would you worry about learning how to do my job when you should be focused on getting better? It’s just silly. Hire a professional to do a professional job.

It seems so obvious now, right? If you’re hurt, call a lawyer. Period. Acting to help shore up your claim early can make a huge difference in your outcome, so the best thing you can do is call a lawyer asap if you’re hurt in an accident and are worried about your claim. I would prefer it if you would call me. So do that! 919-929-2992.

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Auto Accident Injury Care: Chiropractic or Physical Therapy?

People often think that part of the job of a personal injury attorney is to dictate treatment. That is, definitively, not what we should be doing. Yes, to practice law in NC you have to have a doctorate, but I tell people all the time I ain’t that kind of doctor. I have no business telling you what treatment you need!

What IS my business though is telling you how your treatment decisions might affect your claim value. So let’s talk about why people might choose one type of care over another.

First, let’s establish that, for this article, we’re talking about the usual soft tissue injuries that you experience after an auto accident: Sprain/Strains of the neck/back. Those are the VAST majority of injuries from auto accidents. We are NOT talking about broken bones, damaged organs, etc. Just so we’re clear.

Back to the point…if you’ve got neck and back pain, my personal position on it is if it hasn’t gone away in a day or so, it’s maybe bad enough to warrant treatment. I mean, why suffer when you might be able to do something to get better? As for claim value, here’s the first lesson: Claims without treatment are worth LESS THAN claims with treatment. Duh. But you needed to hear that.

So, now that we’ve established that you need treatment, what are you looking for? Most victims go to one or the other…PT or Chiropractic. Why they choose what they choose more often has to do with their own opinions, not mine, which is for the best.

If you’re afraid of the “poppin and lockin” done by chiropractors, well, then you’ll probably do PT. If you’re not, then maybe you do chiropractic. Chiropractic’s upsides are that it’s passive and (this is the big one) most chiropractors won’t bill you up front and will await payment from your settlement proceeds. That’s a big deal in that it keeps you from dipping into your pocket during your recovery. PT, on the other hand, is more active (you have to do as opposed to have done to you) and for the most part they will ask you to pay up front, either in full or use your health insurance, in which case you have to pay your co-pay. Maybe that’s cool to you, maybe it’s not, but you have to factor in your comfort with that sort of payment schedule when making this decision.

In terms of value, PT, being the more conservative and less mysterious of the two modalities, is generally less frowned-upon by insurance carriers, so you’re more likely to get fully reimbursed for that. But depending on the chiropractor’s bills and your case facts, there’s still a great chance you should get that covered, too.

Health care choice is a personal thing, and shouldn’t be dictated by outside factors like claim value. But I do think it’s important that you have as much information as you can get prior to making important decisions. All the more reason to talk to a lawyer. Call me at 919-929-2992.

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Contact Jeffrey

Jeffrey Allen Howard, Attorney at Law, PLLC
1829 E. Franklin St. - Bldg 600
Chapel Hill, NC 27514

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