Know Your Rights — Protecting Against Liens and Subrogation Claims
If you have been injured due to the fault of another, whether negligently or intentionally, the obvious problem you face is recovering from the at-fault party. But every personal injury lawsuit raises dozens of other issues that are not so obvious. If someone paid your medical bills, are they entitled to reimbursement? Is defense counsel allowed to access your private medical records or speak with your doctors? To address these issues, and others, you need attorneys who know your rights. The attorneys at Fried & Bonder, LLC, have vast experience with personal injury litigation. They know your rights and know how to protect them. General answers to some questions that typically arise in personal injury litigation are below. If you have been injured due to the intentional or negligent conduct of another—whether due to a car wreck, trucking accident, medical malpractice, or otherwise—call the attorneys of Fried & Bonder, LLC.
- Reimbursement of Medical Expenses.
If you have been injured due to the fault of another, whether in a car wreck, a trucking accident, or in any other way, you probably already know how expensive medical treatment can be. If you are lucky, you have health insurance—whether self-paid, employer-provided or government-provided—that covers some or all of your medical bills. If you don’t have health insurance, a doctor or hospital may have treated your injuries with the expectation of later being repaid. Either way, you may face claims for reimbursement of those medical expenses. Insurance companies and medical providers regularly seek to recover medical expenses from accident victims. But reimbursement claims can often be avoided or reduced; thus, it is vital that you hire counsel who understands your rights. The lawyers of Fried & Bonder, LLC have the experience to protect you. Below is a brief primer on the types of reimbursement claims an accident victim may face.
- ERISA.
Employer-provided health insurance is governed by a federal statute called the Employee Retirement Income Security Act, or “ERISA.” If your medical bills were covered by an ERISA-sponsored health plan, the ERISA plan will likely try to recover its expenditures from your award or settlement. The plan will usually initiate this process by sending a letter to you or your attorney asserting its right to reimbursement. Whether the plan is ultimately entitled to reimbursement depends on a number of factors, and assessing the strength of the plan’s claim requires an attorney familiar with ERISA law. The factors include:
- The plan language. Plan language must be written in a specific way in order for a plan’s reimbursement claim to succeed. The plan must specify that the reimbursement is to come from the accident victim’s recovery. The accident victim’s attorney should scrutinize the plan for language that could be construed as seeking reimbursement from something other than the victim’s recovery.
- The “make whole” doctrine. If an accident victim’s recovery does not fully compensate her for her injuries, then she has not been “made whole,” and, under the “make-whole doctrine,” may not be required to reimburse an ERISA plan for its medical expenditures. Whether the make-whole doctrine applies depends primarily on the plan language. Often, ERISA plans specifically reject the make-whole doctrine. Still, an accident victim’s attorney should carefully scrutinize the plan to determine whether it includes “make whole” language.
- Equitable defenses. ERISA reimbursement claims are equitable in nature and courts will reject such claims where the results would be inequitable. If the ERISA plan is legally unconscionable, the plan waited too long to assert its reimbursement claim or reimbursement would deplete the accident victim’s recovery to the point she would not be completely compensated, courts may deny the reimbursement claim.
- Medicare.
Medicare is a federal program that provides medical services for certain individuals, mainly people 65 years or older. If your medical bills were covered by Medicare, Medicare will likely try to recover its expenditures from your award or settlement.
When a person has been injured due to the fault of another, Medicare considers the at-fault party primarily responsible for the injured party’s medical bills. According to Medicare, the at-fault party (or his insurance company) is the “primary payer” and Medicare is the “secondary payer.” If Medicare pays for a service that was or should have been covered by a primary payer, Medicare’s expenditures are considered “conditional,” and Medicare may seek to recover such conditional payments from the accident victim, her attorney, the at-fault party or the at-fault party’s insurer. Thus, it is critical that an accident victim’s attorney be aware of a potential Medicare reimbursement claim and take appropriate steps to address it. Although the “make whole” doctrine does not apply to Medicare reimbursement claims, an accident victim can seek a reduction or waiver of Medicare’s claim in appropriate circumstances. Those circumstances include financial hardship (i.e., the accident victim’s inability to pay) or where reimbursement would violate principles of equity and good conscience.
- Medicaid.
Medicaid is a state-administered program that provides medical services to certain individuals, including the indigent, disabled, blind and aged. If your medical bills were covered by Medicaid, Medicaid is allowed to recover its expenditures from your award or settlement. Medicaid may only recover, however, that portion of an award or settlement attributable to medical expenses.
- The Federal Medical Care Recovery Act.
The Federal Medical Care Recovery Act (“FMCRA”) applies to members of the armed service. 42 U.S.C. § 2651, et seq. If you are a service member, and the government paid your accident-related medical bills, the FMCRA gives the government a claim against the at-fault party for recovery of those expenditures. The government can assert its claim by filing its own lawsuit against the at-fault party, joining in your lawsuit against the at-fault party, or asking you to assert its claim in your lawsuit against the at-fault party. The FMCRA permits the government to reduce or completely waive its claim in cases where it would result in less than a complete recovery for the injured service member.
- Provider Reimbursement Claims.
In Georgia, a medical provider may seek to recover unpaid medical bills by asserting a lien against an accident victim’s recovery. O.C.G.A. § 44-14-470, et seq. The lien is not against the accident victim or her property or assets, but against her cause of action against the at-fault party. In other words, a medical provider may only recover to the extent an accident victim recovers from the at-fault party.
For the medical provider’s lien to be valid, the medical provider must give the accident victim written notice of its intent to assert a lien and, no later than 90 days after the accident victim’s discharge, file a verified statement with the appropriate court setting forth the amount being claimed and other details of the patient’s treatment. A medical provider’s lien is invalid if the medical provider accepted payment from an insurer under a service agreement that establishes an agreed upon amount for the service.
- Workers’ Compensation Reimbursement Claims.
In Georgia, workers’ compensation insurers may seek to recover benefits by asserting a subrogation lien against an accident victim’s recovery. O.C.G.A. § 34-9-11.1, et seq. If you were injured on the job and received workers’ compensation benefits, your employer’s workers’ compensation insurer has a subrogation lien against any award or settlement you obtain against the at-fault party. The amount of the lien cannot exceed the amount of workers’ compensation benefits you received. The “make whole” doctrine applies to workers’ compensation subrogation claims. That means that, before the workers’ compensation insurer can recover from you, it must prove that your award or settlement fully compensated you and made you whole. The workers’ compensation insurer carries the burden of proof on this issue.
- ERISA.
- Your Right to Privacy in Protected Health Information
Your medical records are private. A federal law, the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”), prevents your medical providers from violating your right to privacy by disclosing your medical information, orally or in writing, without first obtaining your written consent, a judicial order or fulfilling certain other statutory requirements. 42 U.S.C. § 1320d-2(d)(2)(A).
In Georgia, however, when an accident victim sues an at-fault party for a personal injury, the accident victim waives her right to privacy with regard to her accident-related medical records. O.C.G.A. § 24-9-40(a); Orr v. Sievert, 162 Ga. App. 677 (1982). This rule conflicts with HIPAA’s privacy mandate.
As a result, it was historically open to debate whether HIPPA prevented a Georgia defense attorney from interviewing an accident victim’s physicians without first obtaining the accident victim’s written consent. The Georgia Supreme Court resolved that issue once and for all in Moreland v. Austin, -- S.E.2d -- (Ga. Nov. 3, 2008).
The Supreme Court concluded that HIPAA “pre-empts,” or takes precedence over, Georgia’s privacy waiver. Thus, in order for defense counsel to interview an accident victim’s treating physicians, defense counsel must first comply with HIPAA by obtaining a signed authorization or judicial order. The Court concluded:
“HIPAA protects a patient from the unauthorized disclosure of protected health information and it is applicable to ex parte oral communications between defense counsel and a plaintiff's prior treating physicians. Accordingly, defense counsel cannot contact a plaintiff's prior treating physicians to discuss his or her medical history without complying with HIPAA regulations. Although defense counsel can engage in such discussions if a plaintiff gives his or her consent, it must be clear that the plaintiff consented to ex parte oral communications. We will not presume a plaintiff consented to such communications simply because the plaintiff did not object when defendant sought plaintiff's medical records pursuant to a subpoena or request for production of documents.”
When selecting counsel to handle your personal injury claim, it is critical to hire someone who understands your rights. At Fried & Bonder, LLC, our attorneys know your rights and we fight vigilantly to protect them. If you or a loved one have been injured due to someone else’s negligence or intentional misconduct, whether in a car wreck, trucking accident or in some other way, contact the attorneys of Fried & Bonder, LLC.
