United States: Payment Of Hospital Liens And Health Insurance Subrogation Claims In Third-Party Claims In Texas And California

TEXAS

Hospital Liens

In Texas, if a person is admitted into a hospital within 72 hours of an injury for treatment of the injury, both the admitting hospital and hospitals to which the patient is transferred have liens on the cause of action or claim of the patient against any negligent party. The lien attaches to the cause of action, a judgment, and the proceeds of a settlement. The lien does not attach to any first party insurance or workers’ compensation coverage. A hospital lien is for the amount of the hospital's charges for services provided to the injured individual during the first 100 days of the injured individual's hospitalization. Payment to a Plaintiff, even with indemnification language in a release, does not satisfy the lien. The best practice when dealing with a hospital lien is to issue a separate check to the hospital for satisfaction of the lien.

In 2014, the Texas Supreme Court addressed the issue of what constitutes a payment to a hospital with a statutory lien for medical expenses incurred within 72 hours of an accident. In McAllen Hosp., L.P. v. State Farm County Mut. Ins. Co. of Texas, 433 S.W.3d 535 (Tex. 2014), State Farm, a liability insurer, settled a bodily injury case when there was a hospital lien on file. The insurer paid claimants with checks made payable to both the claimants and the hospital and sent the checks to the claimants without notifying the hospital. The claimants deposited the checks without the endorsement of the hospital. The hospital sued State Farm to recoup its lien amount. The Texas Supreme Court held that if the hospital is not paid in satisfaction of its lien, the settlement agreement between the claimant and the insured is not valid and enforceable.

Health Insurance Subrogation

Chapter 140 of the Texas Civil Practice & Remedies Code limits the subrogation recovery of health insurance companies in third-party claims. If an injured, covered individual is entitled by law to seek a recovery from the third-party tortfeasor for benefits paid or provided by a subrogee, then all payors are entitled to recover an amount that is equal to the lesser of:

  1. one-half of the covered individual's gross recovery; or
  2. the total cost of benefits paid, provided, or assumed by the payor as a direct result of the tortious conduct of the third-party.

If a claim is represented by an attorney, all payors' shares of a covered individual's recovery is an amount that is equal to the lesser of:

  1. one-half of the covered individual's gross recovery less attorney's fees and procurement costs; or
  2. the total cost of benefits paid, provided, or assumed by the payor as a direct result of the tortious conduct of the third-party less attorney's fees and procurement costs.

This statute does not apply to workers’ compensation carriers, Medicare, Medicaid or ERISA plans.

CALIFORNIA

Hospital Liens (Statutory Recovery)

In California, a hospital furnishing emergency and ongoing medical services “shall, if the person has a claim against another for damages on account of his or her injuries, have a lien upon the damages recovered, or to be recovered, by the person, or by his or her heirs or personal representative in case of his or her death to the extent of the amount of the reasonable and necessary charges of the hospital and any hospital affiliated health facility … in which services are provided for the treatment, care, and maintenance of the person in the hospital or health facility affiliated with the hospital resulting from that accident or negligent or other wrongful act.” (Cal. Civ. Code § 3045.1.) In order to make this lien enforceable, however, the hospital must provide written notice to the third-party in a specified manner as set forth in Civil Code section 3045.3. Upon settlement or judgment in favor of the injured person, the third-party must pay to the hospital its claimed lien amount 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,” or that third-party will be liable to the hospital for the amount of the claimed lien it was entitled to receive. (Cal. Civ. Code § 3045.4.) The hospital may bring an action against a third-party to enforce its lien for up to one year after payment to the injured person. (Cal. Civ. Code § 3045.5.)

Contractual Medical Liens (Contractual Recovery)

Health insurance providers generally are reimbursed for the costs of insurance benefits paid out to an insured which are later recovered from a third-party tortfeasor through language in their patient agreements which provide for same. These insurers are entitled to reimbursement rights only, based on policy provisions authorizing same, provided that the insured has been “made whole” with regard to non-covered damages (not including attorneys’ fees). (21st Century Ins. Co. v. Superior Court (Quintana) (2009) 47 Cal. 4th 511.) Med-pay insurers must seek recovery for personal injury claims through contractual reimbursement rights against their insureds because they are not allowed to assert subrogation claims directly against third-party tortfeasors. (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 272.) The rule is based on the premise that personal injury claims are not assignable, and therefore a med-pay insurer generally has no right to sue the tortfeasor directly and has no standing to intervene. (See Lee v. State Farm Mut. Ins. Co. (1976) 57 Cal.App.3d 458, 466.)

In California, the rule generally precludes an insurer from recovering any third-party funds unless and until the insured has been made whole for the loss (the “Made Whole Doctrine”). (Progressive West, supra.) Courts recognize two exceptions to the applicability of the default “Made Whole Doctrine”: 1) An insurer may disclaim the doctrine in an insurance contract by using clear and specific language that indicates the parties’ intent to permit the insurer to seek reimbursement even if the insured has not been made whole. (Chandler v. State Farm Mut. Auto. Ins. Co., 596 F. Supp.2d 1314 (C.D. Cal. 2008) aff’d, 598 F.3d 1115 (9th Cir. 2010); Progressive West Ins. Co., supra; Sapiano v. Williamsburg Nat’l Ins. Co. (1994) 28 Cal.App.4th 533.) In addition, the insurer must also cooperate with and assist the insured in the third-party litigation; and 2) the Made Whole Doctrine does not apply if the insurer prosecutes the claim against the third-party tortfeasor. (Chandler, supra; Travelers Indem. Co. v. Ingebretsen (1974) 38 Cal. App. 3d 858; Progressive West, supra.) The insured must attempt to recover from the tortfeasor. A carrier may pursue reimbursement and has no obligation to make the insured whole out of reimbursement proceeds unless and until the policyholder attempts and fails to recover from the tortfeasor. (Chandler, supra.)

The above analysis does not apply to workers’ compensation carriers, Medicare, Medicaid, or ERISA plans.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.