§ 52-401 — Lien; scope and operation; exception; reduction, when; claim of lien; notice; priority of claims; access to records

Nebraska § 52-401

• Jurisdiction: Nebraska
• Ch. 52: Liens

Text

(1) Whenever any person employs a physician, nurse, chiropractor, hospital, or provider of emergency medical service to perform professional services of any nature, in the treatment of or in connection with an injury, and such injured person claims damages from the party causing the injury, such physician, nurse, chiropractor, hospital, or provider of emergency medical service, shall have a lien upon any sum awarded the injured person in judgment or obtained by settlement or compromise on the amount due for the usual and customary charges of such physician, nurse, chiropractor, hospital, or provider of emergency medical service applicable at the time services are performed, except that no such lien shall be valid against anyone covered under the Nebraska Workers' Compensation Act. For persons covered under private medical insurance or another private health benefit plan, the amount of the lien shall be reduced by the contracted discount or other limitation which would have been applied had the claim been submitted for reimbursement to the medical insurer or administrator of such other health benefit plan. The measure of damages for medical expenses in personal injury claims shall be the private party rate, not the discounted amount.
(2) In order to prosecute such lien, it shall be necessary for such physician, nurse, chiropractor, hospital, or provider of emergency medical service to serve a written notice upon the person or corporation from whom damages are claimed that such physician, nurse, chiropractor, hospital, or provider of emergency medical service claims a lien for such services and stating the amount due and the nature of such services, except that whenever an action is pending in court for the recovery of such damages, it shall be sufficient to file the notice of such lien in the pending action.
(3) A physician, nurse, chiropractor, hospital, or provider of emergency medical service claiming a lien under this section shall not be liable for attorney's fees and costs incurred by the injured person in securing the judgment, settlement, or compromise, but the lien of the injured person's attorney shall have precedence over the lien created by this section.
(4) Upon a written request and with the injured person's consent, a lienholder shall provide medical records, answers to interrogatories, depositions, or any expert medical testimony related to the recovery of damages within its custody and control at a reasonable charge to the injured person.
(5) For purposes of this section, provider of emergency medical service means a public entity that provides emergency medical service as defined in section 38-1207 .

Legislative History

Source: Laws 1927, c. 162, § 1, p. 425; C.S.1929, § 52-401; R.S.1943, § 52-401; Laws 1986, LB 811, § 138; Laws 1995, LB 172, § 1; Laws 2008, LB586, § 1; Laws 2023, LB157, § 14. Cross References: Nebraska Workers' Compensation Act, see section 48-1,110. Annotations: 1. Lien attachment 2. Usual and customary charges 3. Miscellaneous 1. Lien attachment The lien of a service provider under this section attaches at the time the services are performed for purposes of the application of this section. In re Conservatorship of Holle, 254 Neb. 380, 576 N.W.2d 473 (1998). A hospital lien under this section attaches on a patient's admission to the hospital for treatment. Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325 (1993). 2. Usual and customary charges In this section, the phrase "usual and customary charges" acts as a cap; it prevents the lien from being an amount greater than what the health care provider typically charges other patients for the services that it provided to the injured party. Midwest Neurosurgery v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572 (2004). Under this section, the lien is equal to the debt still owed to the health care provider for its usual and customary charges. Midwest Neurosurgery v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572 (2004). Usual and customary charges are the charges of the service provider instead of the amount actually collected. Parnell v. Madonna Rehab. Hosp., Inc., 258 Neb. 125, 602 N.W.2d 461 (1999). The lien of a physician, nurse, hospital, or other health care provider cannot exceed the amount the health care provider agreed to accept for the services rendered to a patient, even if the usual and customary charge for such services is greater than that sum. Midwest Neurosurgery v. State Farm Ins. Cos., 12 Neb. App. 328, 673 N.W.2d 228 (2004). 3. Miscellaneous By perfecting the lien created under this section before the tort-feasor pays the judgment or settlement to the patient, the health care provider creates an obligation on the tort-feasor to ensure that the provider's bill will be satisfied from the funds that the tort-feasor owes to the patient. Midwest Neurosurgery v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572 (2004). If a tort-feasor's insurer impairs a lien created under this section, then the insurer is directly liable to the health care provider for the amount that would have been necessary to satisfy the lien. Midwest Neurosurgery v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572 (2004). A hospital lien which attaches prior to a patient's filing for bankruptcy relief is unaffected by the patient's discharge in bankruptcy. An insurance company breaches its duty to a hospital not to impair the hospital's rights under its lien by settling directly with a patient rather than making payment to the hospital. Alegent Health v. American Family Ins., 265 Neb. 312, 656 N.W.2d 906 (2003). The recovery of the full amount owed to a lienholder, less the lienholder's proportionate share for attorney fees and litigation expenses, operates to fully satisfy debt owed under this section. National Acct. Sys. of Lincoln v. Glasscock, 247 Neb. 620, 529 N.W.2d 529 (1995). This section requires a pro rata reduction of medical provider's lien for any fees due patient's counsel. In re Guardianship & Conservatorship of Bloomquist, 246 Neb. 711, 523 N.W.2d 352 (1994). The proper party defendant in a suit to enforce a hospital lien is generally the party responsible for the patient's injuries, not that party's insurer. A hospital lien attaches upon admission of the patient to the hospital for treatment and is thereafter enforceable against the patient, but perfection is required to enforce the lien against third parties. Upon perfection of a lien by a hospital, a duty arises on the part of the tort-feasor's insurer not to impair the hospital's lien, and if such an insurer settles directly with the injured party despite the existence of a perfected lien, it has breached that duty and is liable directly to the hospital. At least substantial compliance with the notice requirements of the hospital lien statute is necessary to perfect such a lien, and actual knowledge that the hospital is treating the patient alone is not sufficient. West Neb. Gen. Hosp. v. Farmers Ins. Exch., 239 Neb. 281, 475 N.W.2d 901 (1991). The underlying common-law contractual obligation between a patient and a medical provider is not affected by a statutory lien. If a patient receives medical services, he or she is always responsible for payment irrespective of whether there is a financially responsible tort-feasor against whom a statutory lien can be asserted in the event of a settlement or judgment in the patient's favor. The patient's personal liability for medical services remains intact irrespective of the lien statute. In re Conservatorship of Marshall, 10 Neb. App. 589, 634 N.W.2d 300 (2001). Under established rules of statutory construction, chiropractors are excluded by omission as health care professionals entitled to file a physician lien. Nelsen v. Grzywa, 9 Neb. App. 702, 618 N.W.2d 472 (2000). A lien that has been perfected under the law of the state where the hospital service was rendered constitutes a valid lien upon any award, judgment, or settlement, regardless of where the event which caused the injury occurred or of the residence of the injured party or the party causing the injury. AMISUB, Inc. v. Allied Prop. & Cas. Ins. Co., 6 Neb. App. 696, 576 N.W.2d 493 (1998).