I’ve been working harder and harder, trying to better understand the ins and outs of subrogation liens that arise in personal injury cases. With some of the larger cases, we farm out lien work to firms that focus only on resolving lien issues. But there are so many basic things I think personal injury lawyers need to appreciate about lien issues. Anyway, here is my Top Five list:
1. The mere fact that it is an ERISA lien does not automatically mean that the lien cannot be reduced for attorneys’ fees. Subrogation and reimbursement rights for ERISA insurance plans only exist if the language of the plan says they do. You have to actually read the plan to know.
2. Social Security does not have a right to subrogation of survivor benefits.
3. In Maryland, at least, a workers’ comp lien in a wrongful death/survival action applies only to the economic loss the client receives (figuring out this number for settlement purposes can be a challenge) and the medical bills if any were incurred.
4. There is no such thing as a Medicare lien. Medicare has a right of subrogation but not a lien. The difference is mostly semantic, but Medicare can bring its own independent action for payment regardless of what the personal injury victim does. There is also a crazier example I can imagine that I doubt has ever happened. The wife is the at-fault driver in a car accident in which her husband was a passenger. The husband refuses to sue the wife for his injuries, but Medicare does.
5. Medicaid may only recover liens for medical costs. There is no lien for money recovered that is not for medical costs, although, again, in cases that settle, trying to apportion this is rarely a smooth process.
Those are my five. If you have any more than you want to add, leave a comment below.