| INTRODUCTION | | | | North Carolina allows most health care providers to |
| The traumatically brain injured constitute an ever | | | | assert a medical lien against the proceeds of any |
| growing segment of our population. Each year, | | | | recovery from a third party received by their |
| approximately 1.4 million people sustain a traumatic | | | | patients. The lien is creature of statute. The statute |
| brain injury in the United States. The costs of a brain | | | | sets forth the steps and procedures which must be |
| injury are not purely financial. Often, a brain injury | | | | followed in order to maintain and perfect a medical |
| starts a downward spiral in the survivor’s life | | | | lien. Medical liens are perfected by filing notice of the |
| where the emotional and physical ramifications quickly | | | | lien with the patient’s attorney. |
| exceed the financial ones. | | | | 1. The Specifics. Any person who provides drugs, |
| Once the acute care period is over and the patient is | | | | medical supplies, ambulance services, services |
| stabilized, the resources available to the patient can | | | | rendered by any physician, dentist, nurse or hospital |
| substantially impact treatment and recovery. In a | | | | or services rendered in connection with an injury is |
| perfect world, every patient would have unlimited | | | | entitled to a lien upon any sums recovered as |
| access to the best resources available to meet their | | | | damages for personal injury.a. No lien is valid unless |
| needs. Ours unfortunately is not a perfect world. | | | | the medical lien claimant “furnishes, without |
| The consequences of a traumatic brain injury are far | | | | charge to the attorney as a condition precedent to |
| reaching. Not only are there treatment costs | | | | the creation of the lien, upon request, to the |
| associated with the recovery from the acute injuries, | | | | attorney representing the person in whose behalf the |
| but there are the costs of long term care and | | | | claim for personal injury is made, an itemized |
| supervision, the lost support to the family unit that | | | | statement, hospital record, or medical report for the |
| the injured party previously contributed, the | | | | use of the attorney in the negotiation, settlement or |
| increased physical demands placed upon the | | | | trial of the claim...” and a “written notice to |
| caregivers and family of the survivor to meet the | | | | the attorney of the lien claimed.” N.C.G.S. |
| needs of their injured loved ones, and the family | | | | 44-49(B).b. The general statutes further limit the lien |
| having to step into the breach of the role that the | | | | to no more than fifty (50%) percent of the amount |
| injured person previously contributed to the family. | | | | of damages recovered. N.C.G.S 44-50.c. The medical |
| The analysis will focus on the sources of funding for | | | | lien is paid before disbursement of any funds to the |
| treatment and assistance to the traumatically brain | | | | injured party. N.C.G.S 44-50. |
| injured from First Party Resources. | | | | 2. Pro Rata Distribution |
| FIRST PARTY RESOURCES | | | | Where the monies available from the settlement are |
| The person who is ultimately responsible to pay for | | | | insufficient, within the statutory limitation, to satisfy |
| the treatment and medical care which they receive is | | | | all the medical lien claimants, each lienholder shall |
| the person receiving the care. | | | | receive a pro-rata distribution. The medical lien |
| A. Persons who sign medical procedure authorizations | | | | claimants are entitled to receive a certification from |
| are also responsible unless they specifically and | | | | the payor attorney containing sufficient information |
| carefully limit their personal responsibility in the | | | | to demonstrate that the distribution was pro rata |
| authorizing document. North Carolina has adopted the | | | | and consistent with the statutes. This certification |
| common law Doctrine of Necessaries. Pursuant to | | | | typically includes a statement of all of the following:a. |
| that body of law, a spouse or parent is legally | | | | The amount of the settlement or judgment.b. The |
| responsible to pay for the necessaries of their | | | | total distribution to lienholders, the amount of each |
| spouse or children. In order for the Doctrine of | | | | lien claimed, and the percentage of each lien paid.c. |
| Necessaries to apply, the items or services provided | | | | The total attorney’s fees. |
| must be required for sustenance or support. | | | | N.C.G.S. 44-50. |
| B. Medical Liens | | | | |