The recent Illinois Supreme Court decision of Wendling v. Southern Illinois Hospital Services, ___ Ill. 2d ___ (Nos. 110199, 110200 cons. March 24, 2011) clarified a point of law which lawyers and others too often misunderstand. Importantly, the Court explained the differences between a statutory lien claim and a subrogation claim. If you wish to review a copy of the decision from the official Illinois courts website, you may access it here: http://is.gd/N1nI1u
In Wendling, the Court reasserted that the “common fund doctrine” does not apply to statutorily created health care liens such as those imposed by hospitals which have billed for care they provided. Thus, in the event of a settlement or judgment on behalf of an injured plaintiff, the health care provider’s lien must be satisfied in full and no deduction can be retained by the plaintiff either for attorney’s fees or the costs of the litigation.
In Illinois, health care providers may assert a lien on the value of the services which they have provided to a personal injury plaintiff. The lien is permitted only because a statute created that right: The Health Care Services Lien Act, 770 ILCS 23/1 et seq. Under the Act, the total amount of all health care liens is limited to 40% of the judgment or settlement. However, if the total amount of the providers’ bills were not satisfied completely, the providers still have the right to pursue the patient directly for the remaining amount of the bills which were not satisfied by the lien recovery. 770 ILCS 23/45.
As explained by the Wendling Court, the Illinois version of the “common fund” doctrine provides “‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ [cit. omitted] Underlying the doctrine is the equitable concept that the beneficiaries of a fund will be unjustly enriched by the attorney’s services unless they contribute to the costs of the litigation. [cits. omitted] Courts have applied the common fund doctrine in numerous types of civil litigation, including insurance subrogation claims, class actions, and wrongful_death cases involving an intervenor.[cits. omitted]” In other words, if an entity has paid funds which it would not ordinarily be able recover from anyone, for example an insurance company which was contractually obligated to pay for its insured’s medical expenses, and a lawyer creates a fund (settlement or judgment amount) which permits that entity to recover those outlays, then the entity must share a part of the recovery to pay the party for its costs in creating the fund.
In Wendling, the plaintiff tried to claim that a hospital which had a statutorily created lien, not a subrogation claim, should pay a portion of its lien for the plaintiff’s attorney’s fees and the costs of the lawsuit. Many of us believed this issue had already been decided by the Supreme Court in Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298, 25 Ill. Dec. 642 (1979), but this time there were powerful amicus curiae briefs filed by the trial lawyers. In the end, the Supreme Court reaffirmed its 1979 holding in Maynard.
Along the way, the Supreme Court noted the differences between subrogation interests and lien claims. Primarily of interest for this decision, the holder of a statutorily created lien has the right to be paid for the lien amount irrespective of whether a recovery is made in the plaintiff’s lawsuit. In essence, the health care provider is the creditor and the plaintiff is the debtor, and the plaintiff must pay for his/her medical bills regardless of what happens in the P.I. lawsuit. In contrast, the holder of a subrogation claim does not ordinarily have an independent right to recover the amounts which were paid to or on behalf of the P.I. plaintiff. The only way the subrogation claimholder can recover is if a fund is created by settlement or judgment in the underlying lawsuit. Accordingly, the Supreme Court noted it to be fair that the subrogation claimant pay a part of the plaintiff’s costs of creating the “common fund” which allowed reimbursement to the subrogee. However, a health care provider with a statutory lien does not need the “common fund” to get paid for its services as the P.I. plaintiff will be required to pay the provider even if a lawsuit has not been filed.
It should be noted that trial lawyers are already trying to have the Illinois legislature enact a law which would get around the holding of this case (and the case law since 1979) by seeking to amend the Health Care Services Lien Act.