Medical Liens for Clients: Ethical or Not? - Part I
I recently had an e-mail discussion with a colleague of mine (who will remain unnamed) about whether it was OK or “ethical” for a lawyer to sign a lien so that a client could receive medical treatment. Needless to say, we did not have the same opinion, he thinking that it would be unethical to enter into this kind of agreement and I arguing that not only might it be ethical to sign the lien, but that it might be unethical to refuse to do so. I want to take some time on our blog to explore the issue and, hopefully, convince our readers that, far from being unethical, signing of medical liens on behalf of clients is simply another part of the puzzle that clients need us to help them put together in resolving their injury cases.
First, I probably ought to describe for you what is meant by the term “medical lien.” Essentially what we are talking about is an agreement by a medical professional (doctor, physical therapist, chiropractor, etc.) to treat an injured patient now, for the promise of being repaid by the patient at a later date once the patient has obtained some money (usually the proceeds of a settlement or verdict in their case). The patient usually signs a form drafted by the medical professional that lays out these very terms. Therefore, in exchange for the promise of payment at a later date, the medical professional will treat the patient in the present. This is a two party agreement between patient and medical professional.
If the patient has a lawyer, many times the lawyer is also made a party to the contract, making it a three-way contract. In this instance the lawyer agrees (and the client gives permission) to take any money the lawyer might obtain for the client (whether by settlement or verdict) and pay the medical professional before giving the client their money. The medical professional’s obligations are the same in this instance: treat the patient now in exchange for the promise of payment later. Critical to this three way agreement is that the client/patient gives the lawyer permission to pay the medical professional first. That way, the lawyer is not caught in a conflict of signing the agreement only to later find that the client has other ideas. This way, all parties agree to the arrangement ahead of time. Some lawyers, like my friend, will refuse to sign these agreements (for ethical or other considerations – ie. they just don’t feel like dealing with it), but that very often means that the medical professional will refuse to provide the treatment, to the detriment of the client/patient. In other words, faced with the power to allow a client to get treatment the lawyer says “no, I won’t sign that agreement” and leaves the client to fend for themselves.
So why would anyone need to do all of this complicated stuff? And more importantly, why would someone argue that it is unethical to do so? Well the answer to the first question really depends on a couple of issues: what kind of case are we dealing with, what other resources does the client have for medical treatment, what other resources does the client have to pay for medical treatment, what happens to the client’s health if they don’t get the treatment, what happens to the client’s case if they don’t get the treatment? All of these factors play a role in whether a client and the lawyer might be faced with the reality of having to sign a lien.
Most of these issues can be boiled down to this: the client doesn’t have money to pay for treatment and can’t find other resources. None of us expects doctors or chiropractors to do work and treat patients for free. Frankly, to me, it seems crazy that they would be willing to even enter into this agreement to treat now and get paid later. As a side note, they are not asking to be paid more money in these arrangements. But the reality is that a large part of our society does not have more than a couple weeks’ worth of savings built up to pay for any medical treatment. Many of us have no health insurance or other safety net. Many of us do not have primary care physicians and get our primary healthcare from the emergency room at the local public hospital (which is a very expensive way to get treatment). In these cases there is no way for this person to pay for the treatment. In that sense, if they don’t sign the agreement, they don’t get the treatment. It’s a simple as that. From a medical standpoint, this seems like a sad reality. To be injured and to have the ability to get treatment if you and your lawyer will only sign a lien, only to learn that your lawyer refuses to do so must seem devastating to clients. From a legal standpoint, the inability to get timely treatment for injuries can destroy a case. As a lawyer, there is nothing harder than trying to argue to a jury or an insurance agent that your client is hurt when they are not getting any medical treatment. Believe me, trying to say it was because they didn’t have the money is a losing argument.
I will finish discussing this topic on Part II of this post.
