Do I have to pay my medical bills from this injury settlement?

Some skeptics might not believe this, but the main reason people contact me for help with their personal injury claim is because they want to get their medical bills paid. It’s not about “secondary gain” or “abusing the system,” but about making sure the victim isn’t out of pocket for something they didn’t cause.

Medical bills are a big deal. Treatment costs can be very high and there is an entire industry built around collecting on those bills, so you don’t want to ignore them.

My primary job is to make sure those bills get paid. If I represent you in your injury claim you can be that I’ll do my best to make sure that happens. Of course, my priority is you, not the medical providers, and there are some instances where those interests can be in conflict.

Some claims are weaker than others, and in those instances sometimes it doesn’t feel to the victim that there’s enough to go around. So I get this big question: Do I have to pay my medical bills from this settlement?

As with many legal questions, the most succinct answer is, “It depends.” But let me explain…

Regardless of the injury claim, you almost certainly owe the bills, right? You went to the provider, they provided a service, and they billed you. So of course you owe them. But do we HAVE to pay them FROM YOUR SETTLEMENT PROCEEDS?

The answer to that bit depends on the provider. When I request records/bills it is in the providers’ best interest to send me those records a) free of charge and b) with a note that says, in some form or another, that they are asserting a lien. By doing BOTH of those two things, they “perfect” their lien. That means their bill in some legal-mystical way attaches to the injury settlement and I cannot legally then ignore the bill; I, as your attorney, following the law, would HAVE to pay them SOMETHING.

If there’s enough to go around (more on that in a second) then I have to pay the whole bill for the lien holder. In instances where, after the attorney’s fee, the total amount of liens is greater than 1/2 of what’s left over, then I can do what’s called a pro-rata disbursement, which means I pay each lien holder a percentage of their bill. They don’t have to accept that as full and final satisfaction of the bill, but that does take care of our legal obligation to pay them something and also assures that you have something from the settlement. In the even the lien holder doesn’t accept that as full and final, then you still owe the balance, unfortunately (though you can often negotiate that down, depending on the situation).

If the provider does not perfect their lien, then the answer is simpler: I don’t have to pay them from the settlement proceeds. You can choose to tell me to pay them, but I don’t have to pay them from the settlement disbursement unless you tell me to do so (and that payment won’t prejudice a lien-holder). If you don’t pay them, you still owe, of course! But they don’t have a legal right to get paid from the settlement.

Look, this stuff gets complicated. That’s all the more reason you should hire me for your injury claim. So call me! 919-929-2992.

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Pain Journal v. Doctor’s Notes

When a client hires me for an injury claim, one of the first things I tell them to do (and remind them to do throughout their recovery) is to keep a PAIN JOURNAL. That can look different for each client, but essentially what I’d like to see is what hurt, how badly, and how it affected your day EACH AND EVERY DAY OF YOUR RECOVERY.

Why is that important?

Well, your pain journal is the framework around which I build your pain and suffering argument. Obviously, you’re going to want your medical expenses covered. The bills help to inform that discussion. But what informs your pain and suffering discussion? I can say, “He hurt for 3 months.” OR I can show them 3 months of DAILY journal entries with details about how that injury was affecting them in their daily life. If you’re on a jury, are you going to be more likely to award the dude who says, “I hurt for three months,” or the dude who can read to you from his pain journal about how each of those 90 days sucked, how badly, and why? The latter, of course!

I get it. Many clients are busy with their lives and whatnot and it’s hard to commit to keeping up with the journal. That’s fine. But understand that it can really impact your case. And while I can encourage you to do it and explain/remind you why it’s important, I can’t do it for you. I just can’t. It’s up to you.

And clients often ask if information from their medical records will suffice. “The doctor asks me every day I go in what my pain level is and I tell them.” OK. Super. But is that a pain journal? Nope. Does it talk about how your neck pain really made it hard to sit through Mr. Derpenschleper’s quarterly sales report? Does it talk about how your back pain made it impossible for you to go to your niece’s wedding? Does it explain how you were hoping to go to the UFC event but couldn’t because your knee wouldn’t allow you to walk that far? No, it doesn’t. Your doctor’s notes are for him/her. Your pain journal is for you.

Do the pain journal. If you can’t, don’t. But if you do, it’s generally worth the time/effort involved as it illustrates your suffering from a personal point of view AND shows your commitment to pursuing this claim. If you can’t be bothered to keep a pain journal, can the adjuster be bothered to pay you?

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When Auto Insurance Isn’t Enough

The scariest thing I learned when I started practicing personal injury law was that the VAST majority of drivers in North Carolina carry the minimum liability limits required by law, which is $30,000.

If you don’t understand why that’s scary, let me explain: Let’s say some negligent driver with minimum limits runs you over due to no fault of your own, solely their negligence. You’re taken to the ER by EMS, have emergency surgery, medical expenses over $100,000 and some degree of permanent disability. The MOST you’ll ever likely see from the at-fault driver is $30,000.

That’s it. $30,000.

Why is that? Well, there are several reasons…

First, the NC legislature has seen fit to establish this as the minimum amount. This has been the case for decades and you can thank your insurance whore Republican legislators for keeping that there to your detriment.

Second, a liability policy is only as good as it’s limit. Theoretically, under the facts listed above, you could seek what’s called an “excess judgment” against the driver, meaning you could get the $30k, but try to get a judgment over that and collect that amount from the driver’s personal assets. But it’s extremely unlikely that the type of person who would have sufficient assets to make such an execution worthwhile is precisely not the type of person who would only have $30,000 in coverage. Which means you’re stuck with the $30k and maybe the dude’s television. Huzzah.

Third – and this is the bit that you CAN affect – most people don’t carry sufficient Underinsured Motorist (UIM) coverage. That’s right, it’s backwards, I know, but it’s extremely wise for YOU to insure yourself against the potential negligence of poor people. Let’s say you happened to have wisely purchased Underinsured Motorist coverage in the amount of $100,000. Under the facts above, you should be able to get the $30,000 from the bad guys, and then go to your carrier for up to $70,000 (for the total of your $100k limits).

What’s the moral of the story? Well, there are three.

  1. Vote Democrat. Republicans have been in the pockets of the insurance companies for decades, and will continue to be so indefinitely. If you have any self-interest whatsoever and aren’t a significant shareholder in an insurance company, you have no reason whatsoever to vote for a Republican.
  2. Buy as much UIM coverage as you can. It’s dirt cheap. We’re talking several dollars a year, nothing drastic. And it could mean the difference between solvency and bankruptcy in a bad situation. Call your agent now.
  3. If you’re in an accident, do yourself a favor and call me right away. Don’t mess around. 919-929-2992.

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Medical Negligence: I do not think it means what you think it means

Medical malpractice or medical negligence are overused terms that can cause a great deal of confusion and result in unnecessary grief and angst in an already difficult situation. Let’s talk about what it means to be “negligent.”

In North Carolina, negligence is defined as failing to act as a reasonably prudent person would in the same or similar circumstances. Medical negligence, though, is a different animal here. To present a successful medical negligence claim, you have to show that the provider failed to treat based on the standard of care in this geographical area. What in the hell does all of that mean?

It means that doctors aren’t held to a standard of what’s reasonable. They’re held to a standard of what other doctors in the same geographical area think is reasonable. This isn’t necessarily a bad standard, but it does make for some complicated scenarios. Imagine if a condition is treated one way in the south east and a completely different way in the north west. A patient in the south east is treated the way it’s done in the south east, but suffers ill effects. There may be medical evidence that the patient would not have had those effects if they’d been treated the north eastern way. BUT, as long as the provider treated them in the south east and in the south eastern way, you’ll have a hard time making a successful claim against them.


And that doesn’t even begin to explain the biggest problem with these potential claims. People often assume that if there is a negative effect after a medical procedure then there is negligence. Au contraire mon frere! JUST because something bad happens doesn’t mean there was “negligence.”

First, you have to get past the standard of care issue (discussed above). Was the treatment what other providers would have done in that area? If so, then there’s no negligence.

Second, was the negative impact a known risk of the procedure? If so, there’s no negligence. Yep, there are lists of problems associated with every type of treatment and when you agree to that treatment, you’re agreeing that those might happen and they aren’t the provider’s fault.

We have a jacked up system. I know. But it’s what we have to work with until we get our heads out of our prodigious American a$$@s and fix our health care system. Until then, you’re stuck with it.

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Hit by a Tractor Trailer?

Being in an auto accident is a terrifying thing. Even the so-called “little ones” aren’t little to the people in the vehicles. I could go on and on with war stories about that.

What’s even worse is when you’re bombarded by a 16 ton transfer truck at high speeds. Accidents involving big commercial vehicles like that are not just scary, they’re deadly.

If you’re involved in any automobile accident, I think it’s wise to seek help from an attorney sooner rather than later. But if you’re in an accident with a tractor trailer or other commercial vehicle, it’s even more important that you get an attorney IMMEDIATELY. The stakes in these cases are way higher and as a result, the insurance carriers will be working from the get-go to stack the deck against you. You’re going to want someone to get on your side immediately to make sure the accident is properly investigated and that evidence is properly preserved. Failure to do that can be as catastrophic to your case as the impact was to your body.

Call me. 919-929-2992.

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Auto Accident Back Injuries: A Brief and Unscientific Essay

As I say to most of my clients when we meet, I’m not that kind of doctor. But my clients and I end up exploring a lot of medical issues in injury claims, so you can’t help but develop at least a passing familiarity with the more common injuries. In auto accidents, back pain is one of the most common complaints. But what causes it? This non-physician can tell you that generally, you’re looking at 3 likely candidates.

By far the most common cause for back pain after an auto accident is the “soft tissue injury.” This is the phrase we use to label strains or sprains to the muscles around your spine. The violent whipping motion your body undergoes in an automobile accident impact can put a terrible amount of strain on these muscles as they are doing their jobs. This trauma can result in back pain that can severely limit your ability to work and play. No fun at all. Normally, victims with this kind of injury seek treatment of their pain through medication, physical therapy, or chiropractic treatment. The vast majority of victims recover in a few months, but some do so much quicker, while others seem to linger forever. Bodies are different.

The next thing we see from time to time is an injury to the framework of the spine itself. There are these little cushions between your vertebrae – the blocks that make up your spine – and these guys try to keep your spine from collapsing. It’s a tough job, and as we get older…and I mean like over 20…we all develop some degree of a condition called Degenerative Disc Disease. Over time the pressure exerted on these discs wears them out and they start to show it. A bulging disc can best be described like a tire with low air; it is jutting outward from the pressure above and below it, like a balloon between two books. The most important things to remember about these are that a) they can become asymptomatic with time, rest, and treatment, so they won’t bother you forever, necessarily, and b) they tend to develop over time, not from trauma. So if you are diagnosed with this after an auto accident, it may be more likely that the condition was exacerbated by the impact as opposed to being caused by the impact. Unless you have pre- and post-impact imaging studies, it’s hard to say for sure.

These are to be contrasted with the disc herniation. If we’re still thinking of the balloon between two books analogy, think of that balloon as being filled with jello. While a herniation is flattening of the whole construct, a herniation is when the “balloon” is actually torn and the jello is pushing out. When this pushes out onto a nerve root, it can result in extreme pain, numbness, tingling, and weakness of extremities linked to that nerve. This is a serious condition that may require surgery. These are often far more likely to be the result of trauma as opposed to developing over time, so if you have this diagnosis after an accident, it would stand to reason that your doctor would be more likely to say that it was caused by the accident as opposed to being there before and merely exacerbated by it.

As I said, I ain’t that kind of doctor, so take everything I say with a whole bowl of salt. But this info can at least help you understand the different back injuries you might be facing. How you present them to the insurance company in your auto claim is a different story, too, so you might need some help with that. Call me to discuss. 919-929-2992.

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Why Do I Need An Attorney?

This is a question that I’ve heard once or twice, and the answer can be complex, but also fact-dependent based on the victim and their particular case.  Generally speaking, I freely admit that if I tried to do your job I would probably suck at it.  Now, after some experience and training, I could improve.  If you want to figure out my job, you’re 100% welcome to do that, just don’t expect a good outcome on your first try.  You’ll be up against a professional negotiator with a big fat “denied” stamp on his desk, but if you feel up to the task of figuring out how to be a personal injury lawyer in a few months, that is your prerogative.  So if you think so poorly of your cases that you’d let an amateur run them, then by all means, do that.  I would just imagine that you’d care enough about the outcomes of them that you’d want a professional with two decades of experience to handle them.  I know I would.  

Believe me, I’ve heard it all.  At this point you might ask, “But they told me they would pay my medical bills, and we can’t guarantee I’ll get my lost income, or anything for pain and suffering, so I still don’t know why or if I need you.”  Sure.  That’s a way to look at it.  Another way to look at it is you probably don’t know how you will get those other things without me.

Sadly, there are no guarantees in any claim, so if you’re looking for those, I can’t help you.  What I can tell you is I probably know better how to document your pain and suffering, your lost income, and whatever other losses you might have, in such a way as to increase the likelihood that the carrier would put more value on them.  I also present the legitimate threat of a trial (which means expenses on the part of the carrier), which you do not.  It is, therefore, simply more probable that I can get reasonable value for your various losses than you can on your own.  

Obviously, the gamble is that 1/3 of your recovery that would be my fee.  I get it.  Nobody likes parting with money.  I had an investment advisor that used to say, “You never lose money on an investment you never made.”  That applies to injury claims, in a way; you can’t fret over 1/3 of something that you don’t have yet.”  My job is to help you maximize your claim value so you feel like you got the benefit of your bargain.  Can I guarantee anything?  No, obviously I cannot.  But what I can say is that I always do my best to make my clients happy.  Should you trust me saying that?  If you want to.  But a better thing to do is look at my Google reviews.  Then look at other personal injury attorneys in NC and their Google reviews.  I can’t buy that kind of advertising. 

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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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Contact Jeffrey

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

(P) 919-929-2992
(F) 919-636-4779

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