Litigation

Attorney's Lien vs. Medical Lien: Attorneys' Lien Wins

By Bruce Nye

    Most plaintiff personal injury attorneys' have provisions in their fee agreements giving them a lien against client recovery.  In a wide variety of circumstances, the medical providers may have a lien against the recovery as well.

    So what happens when the case tanks and there isn't enough money to pay off both the liens?  In a California case of first impression, California's Court of Appeal for the Third District holds that as a matter of public policy, the attorneys' lien for fees and costs comes first.  The case is Gilman v. Dalby (August 10, 2009) ___Cal.App.4th___ (C050294). 

    But don't worry, there wasn't some poor doctor left out in the cold.  The medical lien was owned by Lien Medical, a personal injury medical lien factor ("Turn your liens into greens" -- the colors appear at this company's web site).  And Lien Medical, which has already satisfied the provider, is the one to get stuck.  But the decision is much broader than that, and pretty clearly applies to all medical liens.

    BTB, this is the sort of garden variety call that appellate courts have to make every day.  There's no applicable statute of any kind, and it's really a matter of advancing the common law.  And it demonstrates that when people -- usually politicians with agendas -- talk about judges "interpreting the law" vs. "making the law," they either don't know what they are talking about or they are deliberately avoiding an honest discussion of how the law works. 

Full post as published by CalBizLit on August 11, 2009 (boomark / email).