INTRODUCTION
The traumatically brain injured constitute an ever growing segment of our population. Each year, approximately 1.4 million people sustain a traumatic brain injury in the United States. The costs of a brain injury are not purely financial. Often, a brain injury starts a downward spiral in the survivor's life where the emotional and physical ramifications quickly exceed the financial ones.
Once the acute care period is over and the patient is stabilized, the resources available to the patient can substantially impact treatment and recovery. In a perfect world, every patient would have unlimited access to the best resources available to meet their needs. Ours unfortunately is not a perfect world.
The consequences of a traumatic brain injury are far reaching. Not only are there treatment costs associated with the recovery from the acute injuries, but there are the costs of long term care and supervision, the lost support to the family unit that the injured party previously contributed, the increased physical demands placed upon the caregivers and family of the survivor to meet the needs of their injured loved ones, and the family having to step into the breach of the role that the injured person previously contributed to the family.
The analysis will focus on the sources of funding for treatment and assistance to the traumatically brain injured from First Party Resources.
FIRST PARTY RESOURCES
The person who is ultimately responsible to pay for the treatment and medical care which they receive is the person receiving the care.
A. Persons who sign medical procedure authorizations are also responsible unless they specifically and carefully limit their personal responsibility in the authorizing document. North Carolina has adopted the common law Doctrine of Necessaries. Pursuant to that body of law, a spouse or parent is legally responsible to pay for the necessaries of their spouse or children. In order for the Doctrine of Necessaries to apply, the items or services provided must be required for sustenance or support.
B. Medical Liens
North Carolina allows most health care providers to assert a medical lien against the proceeds of any recovery from a third party received by their patients. The lien is creature of statute. The statute sets forth the steps and procedures which must be followed in order to maintain and perfect a medical lien. Medical liens are perfected by filing notice of the lien with the patient's attorney.
1. The Specifics. Any person who provides drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse or hospital or services rendered in connection with an injury is entitled to a lien upon any sums recovered as damages for personal injury.
a. No lien is valid unless the medical lien claimant "furnishes, without charge to the attorney as a condition precedent to the creation of the lien, upon request, to the attorney representing the person in whose behalf the claim for personal injury is made, an itemized statement, hospital record, or medical report for the use of the attorney in the negotiation, settlement or trial of the claim..." and a "written notice to the attorney of the lien claimed." N.C.G.S. 44-49(B).
b. The general statutes further limit the lien to no more than fifty (50%) percent of the amount of damages recovered. N.C.G.S 44-50.
c. The medical lien is paid before disbursement of any funds to the injured party. N.C.G.S 44-50.
2. Pro Rata Distribution
Where the monies available from the settlement are insufficient, within the statutory limitation, to satisfy all the medical lien claimants, each lienholder shall receive a pro-rata distribution. The medical lien claimants are entitled to receive a certification from the payor attorney containing sufficient information to demonstrate that the distribution was pro rata and consistent with the statutes. This certification typically includes a statement of all of the following:
a. The amount of the settlement or judgment.
b. The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid.
c. The total attorney's fees. N.C.G.S. 44-50.1
CONCLUSION
Traumatic Brain Injuries are often referred to as the silent epidemic. A person's life can be substantially and dramatically affected by a brain injury. Those of you serving on the front lines want the best outcome for their patients and clients. By securing all available funding, our patients/clients can focus on their recovery.
Perry Fisher has over 20 years of experience and specializes in traumatic brain injury. P. Fisher's North Carolina law firm provides personal attention and takes the burden of the legal issues off the shoulders of their clients. Only a specialized brain injury attorney can effectively resolve his clients' problems.
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