Lawyers PI Program
From the Desk of:
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Liens, Liens and Liens”
This is now getting really exciting...It gets better as you go on... Keep Reading!!!!! Call me if you need help
As I amend this on 2/15/2014 and am confirming this in 2018 and I want to report to you that doctors have shared with me that once they have followed this procedure, their lien income has increased dramatically with rarely a lawyer "screwing" them. Once the lawyer know your policy, it takes all the stress away from both you and lawyer and will pave the way for you to get paid gracefully.
Getting paid on liens is the #1 question I get from new clients because historically, lawyers have abused the chiropractic profession by "cutting out fees". In addition it appears there is still confusion on how to approach the lawyers in maximizing your reimbursement without damaging your relationship with the lawyer.
As you have read, or should have previously, I recommend that you do not take more than 1/3 of the settlement. In many cases, that represents your entire fee. However, in some cases, that means reducing your fee. There are always extenuating circumstances and sometimes it feels like that happens in every case. You have to get a little tough with the lawyers and remember their allegiance is to themselves first, their clients second and you are far down on the list, as a rule.
As a review, here is the procedure and it is simple, clean and easy. You will never take more than 1/3 of the settlement. However, in order to take a reduction in your fee, the lawyer must send you a copy of the settlement and all disbursement checks. If the lawyer wants you to take less than the 1/3, you will do so only if THE LAWYER takes less than 1/3. You are a team player, not the martyr in the relationship. The lawyers usually are not happy to be asked to take their own reduction. Either are you and without you consenting to accept the lien amount they are NOT allowed by law to distributive money to anyone giving you leverage in the negotiation.
In my own case last month, I had a lien for $23,000. This was an unusual case, as the majority of my liens have been for $3,000-4,000. This particular patient was in bad shape and my office treated her for 2 years. The lawyer offered me $10,000 and expected me to jump for joy. I informed him that it was not a good offer and that I would not take less than 1/3 of the settlement. The lawyer then informed me that his client would never approve of more money and if I was smart, I would take the amount offered. I asked to see the settlement check and the disbursement sheet. The lawyer informed me that it would be an ethics violation to do so. My answer was that if the client wanted me to take significantly less money than I was due, she needed to give the lawyer permission to do so. The lawyer said it would never happen, that the client had no assets and in the end I would have to sue the patient, get a judgment and not be able to recover any money. Therefore, if I was a smart doctor, I would take the money and run.
I thanked the lawyer for his advice and told him that if he disbursed any money to anyone with a valid lien in hand and didn't satisfy the lien, than he was also committing an ethics violation and I was willing to wait longer to get paid unless I saw the documentation. I acknowledged that the lawyer had a responsibility to represent his client’s interests first. However, I had a responsibility to represent my interests and I was willing to work with the lawyer if he was willing to work with me.
He understood and we kept the conversation very respectful. The next day he called me back and said his client gave permission to share the disbursement sheet, as she wanted to get paid, and the settlement check was for $40,950. Therefore, I told him that I would take $13,650, as 1/3, and nothing less. If not, I would not accept a reduction of any kind and they would have to take this case to court and try to get more money to satisfy everyone’s needs.
The lawyer tried for over an hour on the phone to get me to see the light and I allowed the conversation to continue out of respect for him. At the end of the conversation, I said, “My overhead is 65% and I am taking 66% of the fee. Considering I have had to pay my staff and pay for supplies, electric and everything else, after taxes I am losing money on this deal, but am doing so out of respect to you so you can settle your case." That was the end of the conversation. The next day he called me to say his client agreed and I received the check within 2 days. The moral of the story is that you work hard and there are costs assocaited with caring for your patients and you are entitled to get paid a fair fee for your services.
This afternoon a doctor shared with me that there was a case with another doctor involved and the lawyer wanted him to take nothing! The nerve of that lawyer!!! The solution would have been everyone takes ¼ of the settlement instead of the 1/3. The rules are not hard and fast, but there are guidelines so you do not get the short end of the stick (i.e. screwed). Remember, lawyers are trained negotiators by profession, and that immediately puts you at a disadvantage.
Be smart, be flexible, but get paid. If you have a great relationship with a lawyer, let them know up front what your policy is regarding settlements, but also let them know that you are flexible. Sometimes you expect your full fee and other times you are willing to walk for nothing if it is for the right relationship. Remember the 6 P’s.
You must have a lien signed by your patient and then forward it to the lawyer. Your goal is to have the lawyer countersign it and send it back to you, but if he/she doesn't fax it or mail the countersigned lien, keep the fax receipt as proof. IN ADDITION, mail them a certified letter with a green card return receipt. this is not a situation where you do either/or; send a copy via certified mail, return receipt and keep the green card. This is your livelihood and you have to ensure that you have proof and multiple forms is admissible evidence to ensure payment of your fees.
NOTE: When faxing, you must include a cover sheet with a checklist of what is contained in the fax so should you have to litigate, the lawyer can I received the fax, but it was blank. A checklist of the lien and any other document should suffice. In addition, do the same on the green card receipt for the certified mail. On the card write "Mrs. Jones Lien enclosed."
Do not hand-deliver it, as some of you do. Then there will be no proof that the lawyer received it. It is your word against his/hers and if it is not in writing, it doesn't exist and you are up against lawyers who will win. That is a hard rule and is non-negotiable! In addition, many of you abdicate the responsibility to your billing company. That is the "kiss of financial death" as all a billing company will do is send the lawyers bills or e-mails...another useless step in the world of law to ensure your payment.
To ensure payment of all of your cases, start by having your staff pull the chart of every personal injury case and see if you have an admissible form of proof of receipt of a signed lien form the lawyer representing your patient. If you do not, have the patient execute (sign) a lien form and send it IMMEDIATELY to the layer following the rules above. Only do this if you want to get paid, because the lawyers know the law and if you do not have the proof, you will not get paid and it will be your fault.
On the Web site, under “Communication Materials,” there is a “Lien / Letter of Protection Template” that is free. Every state has specific rules regarding liens and you need to run the template by a local attorney to ensure that it will be upheld in a court in your county. Not only is every state different, but in many cases, each jurisdiction is different within your state. If you do not have a lien, do not expect to get paid. Some of you have your patient “pre-sign” the lien. In New York as in other states, that is illegal and can be the cause of a loss of license and/or other criminal charges, so be careful how you administer the liens or letters of protection. If you are prepared and communicate clearly by respectfully holding your ground, you will get paid. If you need help in a lien negotiation, let me know.
It is now almost 2 years since I originally wrote the policy and guidelines for settling liens. Since this was first published, I have received a continuous flow of e-mails from doctors nationally who have certified that this guideline works. Lawyers (almost) always give the doctors a hard time initially because they are used to winning the argument and negotiation, which puts money in THEIR pockets. However, when the lawyer comes across a doctor trained in this procedure, they realize they cannot win the argument, either in negotiations or in court and almost always, acquiesce to the doctors demand of the 1/3 rule. The bottom line...you get paid.
THE LAWYER WON'T PAY THE LIEN
Occasionally you will come across and unethical lawyer who will do anything to screw you. IF...you do not have a valid lien that has been acknowledged via certified mail return signature or fax verification do not expect to get paid and it is not the lawyers fault as described above. The lawyer will not honor a promise, they will only honor contracts and a lien is a contract that has to be filed timely and duly executed.
The lawyer will do everything to make the most money, first for themselves and secondly for their clients. It's a rarity that the order is reversed as I have experienced over the last 33 years. Where do you fit into that equation...YOU DON'T. As a result, without a valid contract called a lien or letter of protection you not only don't fit into the equation...you are nowhere with nothing but the patient to go after and most patients usually have spent their settlement money (your $) long before you ever get to talk to them.
However...IF...you have a valid lien that has been filed with the lawyer, they have a legal obligation to satisfy your lien and by law, cannot disperse any funds until your contract/lien is satisfied. Therefore you have a tremendous amount of leverage in the negotiations.
Should the lawyer not acknowledge your lien or makes you a ridiculous offer, follow the formula in the above paragraph and stick to your guns! In fact, you should have spoken to the lawyer prior to this point so that there are no surprises on their side. It is that element of surprise that will prevent a lawyer from working with you in the future.
Should a lawyer not want to resolve the issue and they are holding tight to their low-ball offer or not acknowledging you at all, consider the following sample letter.
HOWEVER...once you send this letter, it is unlikely that the lawyer will ever work with you again and possibly bad mouth you to other lawyers. Therefore, think long and hard about sending this type of letter. On the other side of the coin, if the lawyer is a low-life, then you do not want to work with them in the future anyway and the other lawyers in the community probably already know that their reputation and it will not harm you. But...you need to know both sides of the coin.
In some instances I have chosen to walk away from money and in others, I aggressively went after the lawyer. I have only been "stiffed" once in my 31 year career.
Mark Studin DC, FASBE(C), DAAPM, DAAMLP
123 Main St. Anytown NYU 12345
July 11, 2012
John Lawyer, Esq.
Lawyer and Lawyer
Counselors at Law
123 High St.
Anytown, NY 12345
Re: Lien-John Smith
Dear Mr. Lawyer,
After my repeated unsuccessful attempts to satisfy my duly executed and timely filed lien for your client John Smith, I am putting you on notice. As you are aware, you have both a contractual and fiduciary responsibility to honor the agreement that you are in possession of, and have been for quite some time. You apparently refuse to properly represent and fulfill your client’s wishes and obligations that are represented in my invoices totaling $4,870.00.
I have offered you a settlement formula, as part of my normal business policy and to date you have not acknowledged or agreed to any terms, therefore payment is now due in full.
Should payment in full not be received within 3 business days, I will be referring this matter to the State Bar via an an ethics complaint against your license for apparently "willfully ignoring" my contract (said lien) and communicating with counsel to consider all other legal avenues available to secure payment for necessary services rendered.
I am sorry you have chosen to force me to take these actions as in my many years of private practice, I never enjoy resorting to these extreme measures. It is not my desire or intent to do anything except care for my patients and get paid in fair exchange for my services. I urge you to please reconsider your actions as the next step is your choice.
Mark Studin DC, FASBE(C), DAAPM, DAAMLP