Guardianship and Conservatorship of Bloomquist, In re
| Citation | 2 Neb.App. 756,514 N.W.2d 656 |
| Decision Date | 29 March 1994 |
| Docket Number | A-92-825,Nos. A-92-752,s. A-92-752 |
| Parties | In re GUARDIANSHIP AND CONSERVATORSHIP OF Johnathan Harley BLOOMQUIST, a Protected Person. Catherine M. YAEGER, Conservator, Appellant, v. CITY OF LINCOLN, doing business as Lincoln General Hospital, Creditor, Appellee. Michael CENTAMORE, Appellant, v. Robert COCANOUGHER, Appellee, and Amisub (Saint Joseph Hospital), Inc., Intervenor-Appellee. |
| Court | Court of Appeals of Nebraska |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding questions of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court.
2. Subrogation: Liability: Words and Phrases. To be entitled to subrogation, one must pay a debt for which another is liable.
3. Liens: Words and Phrases. A lien is a right afforded by law to have an obligation satisfied out of particular property.
4. Liens: Health Care Providers: Liability. Under the hospital lien statute, Neb.Rev.Stat. § 52-401 (Reissue 1988), a physician, nurse, or hospital is not liable for a pro rata portion of the costs of a claim or action brought by an injured patient to collect damages which results in the satisfaction of a properly perfected lien.
Allan J. Eurek of Pierson, Fitchett, Hunzeker, Blake & Loftis, Lincoln, for appellant Yaeger.
James W. Knowles, Jr. of Knowles Law Office, Omaha, for appellant Centamore.
Linda W. Rohman and Douglas L. Curry of Erickson & Sederstrom, P.C., Lincoln, for appellee City of Lincoln.
Neil B. Danberg, Jr. and Conal L. Hession of Kennedy, Holland, DeLacy & Svoboda, Omaha, for intervenor-appellee.
Roger S. Keetle, Lincoln, for amicus curiae Nebraska Hosp. Ass'n.
In these cases, which the court has consolidated upon appeal, we are asked by appellants to hold that a physician, nurse, or hospital that performs medical services for an injured party is obligated to pay attorney fees to the injured party's attorney if the physician, nurse, or hospital relies upon the hospital lien statute, Neb.Rev.Stat. § 52-401 (Reissue 1988), to collect its bill for services. In both of these cases, the district courts found that the medical provider was not obligated to pay attorney fees and costs to the injured party's attorney. We hold that a medical provider who relies upon the hospital lien statute is not obligated to pay attorney fees and costs to the injured party's attorney, even though a successful prosecution by the attorney of the injured party's tort case results in payment of the medical provider's lien. Accordingly, we affirm the district courts' judgments.
In case No. A-92-752, Catherine M. Yaeger, the conservator of Johnathan Harley Bloomquist, a minor, applied to the county court for Lancaster County for permission to settle a tort claim. Using § 52-401, the City of Lincoln, doing business as Lincoln General Hospital, claimed a lien upon the settlement proceeds in the amount of $16,456.15. The conservator acknowledged Lincoln General's lien, but sought the approval of the court to pay Lincoln General the value of its services less a reasonable portion of the cost of recovery, including attorney fees.
Johnathan had been struck by a car driven by Kim Folsom and sustained a closed head injury. His head injury necessitated hospital services on two different occasions at Lincoln General, and the bill for these services totaled $16,456.15. Johnathan's conservator brought suit against Folsom and achieved a settlement in the amount of $100,000. It was agreed that Lincoln General had perfected its lien under § 52-401 and had provided notice to Folsom's liability carrier as well as her underinsured motorist carrier, which would provide coverage for Johnathan. The evidence was that counsel for the conservator was entitled to a one-third contingent fee, together with costs of recovery, for a total expense of $34,148.78. It was agreed that if the hospital were required to share in those attorney fees and expenses, "its fair, reasonable and proportionate share of such attorneys' fees and expenses" would be $5,619.57.
The county court directed that the conservator make full payment to Lincoln General without deduction for attorney fees or expenses. The district court for Lancaster County, sitting as an appellate court, affirmed the decision of the county court. The conservator has perfected her appeal to this court.
In case No. A-92-825, Michael Centamore sustained a partial amputation of his right heel in a lawnmower accident. As a result, he was hospitalized at Saint Joseph Hospital in Omaha and incurred a substantial bill. Centamore retained counsel to pursue his claim for damages against Robert Cocanougher, who owned the premises where the accident occurred. Centamore's fee agreement with his attorney was for a contingent fee of one-third, together with out-of-pocket expenses incurred in the prosecution of the action.
The underlying case against the alleged tort-feasor, Cocanougher, was tried to a jury, which returned a verdict in Centamore's favor in the amount of $75,000. The record establishes that under the fee agreement, Centamore's counsel was entitled to a fee of $25,000 plus reimbursement of expenses in the amount of $1,386.13. The Nebraska Department The district court found that Saint Joseph's lien was not subject to reduction in favor of Centamore for a share of the expenses and attorney fees incurred in prosecution of Centamore's tort claim. Centamore properly perfected an appeal to this court.
of Social Services (DSS) had made payments to Saint Joseph on Centamore's behalf in the amount of $8,700.73, and DSS agreed to share in the cost of recovery and accept $5,642.09 in full payment of its subrogation interest. (Neb.Rev.Stat. § 68-716 (Reissue 1990) expressly provides that DSS shall have the right of subrogation whenever there is an application for medical assistance benefits, thereby placing DSS in the position of a subrogor.) Saint Joseph declined counsel's request to reduce its lien for attorney fees and costs. Saint Joseph mailed its notice of lien to State Farm Insurance Company, the insurer of Cocanougher, and filed a petition in intervention in this action, claiming $39,683.89 of the $75,000 judgment in [2 Neb.App. 759] satisfaction of its lien. The $75,000 judgment was paid into court and the money distributed, except for the sum of $13,914.36, which the hospital and Centamore agree is the disputed amount
Although Bloomquist's conservator and Centamore state it differently, both parties in summary assert that the district court erred in holding that a § 52-401 hospital lien is not subject to a reduction for a proportional share of attorney fees and expenses necessarily incurred in recovering a tort settlement or judgment from which the hospital lien is satisfied.
The facts are stipulated or otherwise undisputed in both of these cases, and we are presented with questions of law. Regarding questions of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court. Nebraska Builders Prod. Co. v. Industrial Erectors, 239 Neb. 744, 478 N.W.2d 257 (1992).
Whenever any person shall employ a physician, nurse, or hospital to perform professional service or services of any nature, in the treatment of or in connection with an injury, and such injured person shall claim damages from the party causing the injury, such physician, nurse, or hospital, as the case may be, 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 reasonable value of services necessarily performed, except that no such lien shall be valid against anyone coming under the Nebraska Workers' Compensation Act. In order to prosecute such lien, it shall be necessary for such physician, nurse, or hospital to serve a written notice upon the person or corporation from whom damages are claimed that such physician, nurse, or hospital claims a lien for such services and stating therein 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.
§ 52-401.
There is no claim that the liens in either case were not properly perfected and asserted.
Bloomquist's conservator and Centamore claim that the hospitals should be obligated to share in the cost of the tort recoveries which resulted in the payment of the hospitals' liens. They principally rely upon three Nebraska cases: West Neb. Gen. Hosp. v. Farmers Ins. Exch., 239 Neb. 281, 475 N.W.2d 901 (1991); United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961); and Kaiman v. Mercy Midlands Medical & Dental Plan, 491 N.W.2d 356 (1992).
The first argument advanced is that West Neb. Gen. Hosp., supra, is dispositive of the issue before this court and requires reversal of the district courts' decisions. That case involved an action against a liability insurer (Farmers) to enforce a hospital lien after Farmers had already paid the full liability coverage to the injured party. The factual background involved an automobile accident in which Kenneth Schneider was injured as a result of the alleged negligence of Janae Kehm, who was insured by Farmers. Schneider's hospital bills at West Nebraska General Hospital totaled $31,361.07. On June 22, approximately 6 weeks after the accident, Schneider and his attorney settled with Farmers for the policy limit of $50,000, and the attorney secured a settlement draft in that amount from Farmers on June 22. Coincidentally, on that same day, West Nebraska General Hospital's attorney mailed a letter claiming a hospital lien for $4,412.05 to one of Farmers' agents. Whether this lien...
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Guardianship and Conservatorship of Bloomquist, In re
...to the Nebraska Court of Appeals, and that court affirmed the lower courts' judgments in In re Guardianship & Conservatorship of Bloomquist, 2 Neb.App. 756, 514 N.W.2d 656 (1994). We granted appellants' petitions for further PROCEDURAL AND FACTUAL BACKGROUND The facts are stipulated or othe......