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What is a Major Factor in a Personal Injury Settlement?

A recent Boston Globe article described a plaintiff in a significant lawsuit who was awarded $580,000 but netted virtually nothing after the deduction of fees, medical expenses and medical liens. Years ago, I blogged about a “lien” being not necessarily “lean”. There is no question but that liens can lead to very unfortunate results. Liens, such as those in a self-funded ERISA plan, do not require the lien-holder to lower or reduce the health plan’s lien. In fact, the United States Supreme Court in a recent case sadly upheld the right of the ERISA plan to reimbursement from a third party recovery even where the plaintiff would net nothing. US Airways v. James E. McCutchen 569 U.S. (2013). Arguments raising equitable doctrines were rejected because of relevant contract provisions. The court found that the agreement—calling for full reimbursement to the plan—and not equitable principles provides the measure of relief.

The Supreme Court discussed the policy behind what seems to be a draconian result. I endeavor to make sure that my clients do not walk away empty-handed. Sometimes the lawyer has to act equitably, even if the lien-holder doesn’t.

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