Q: I was in an automobile accident on Dec. 15, 2011. It was the other driver’s fault. When is it too late to get another attorney. The accident was the other drivers fault, totaled my vehicle, and injured my back. I hired a lawyer and they found out months ago that she only had a $25,0000 policy and does not own anything to sue her. My hospital bills are $33,000 dollars. This has been going on for eleven months. He said there may be a lien on them now which is their fault if there is and I have been the one to keep contacting them to see what is going on. Should they have not got me a cash settlement when they saw she didn’t have anything.
A: Your question raises a lot of interesting issues. I have found that some of my most difficult cases are ones in which there are large medical bills, but small amounts of insurance available.
The easy way out for a lawyer in this situation is simply to settle the case, take his fee, and pay what is left over to the most aggressive providers leaving the client with nothing. Clearly, your lawyer has not chosen to settle the case quickly, and hopefully that is because he has rejected this model. On the other hand, few good things happen as a result of delaying settlement, unless there are other sources of money available. This raises a number of interesting questions. Does the other driver have personal assets? Was there other insurance available to insure that driver? Is there a third party who may have liability? Are there other parties that may pay the bills such as health insurance or Medicare that have delayed payment? Are there intransigent lienholders who are delaying settlement? On the other hand, as a case is delayed, more bills may arise and more providers may assert liens on the settlement.
The right way to handle a claim like this is to seek quickly to determine whether or not there is any money to be obtained other than the $25,000 bodily injury policy on the car involved. If there is not, then it probably is a good idea to get the $25,000 as soon as possible. Then the real work begins. It becomes necessary to negotiate with the providers to try to create a situation in which the $33,000 of bills get written down, so that there is still money left over for the client even after the attorney gets paid. This is hard to do when the bills are more than the available insurance. It is not impossible, and I have done it in situations far more difficult than yours. Liens are an interesting issue in a case like yours. First of all, lien avoidance is an art, and it is an art that has been neglected by far too many attorneys. I am always surprised by how many files transfer to my office with liens on them which I would normally not expect were it my own file to begin with. Although lien avoidance is an art, it is not a science. Some liens simply cannot be avoided, such as Medicare or MassHealth. They are statutory and entitled to recover by law, even if they never contacted the attorney or the insurance company directly before settlement. Some liens are just bad luck. Sometimes the providers are awake and send the lien. Some providers send liens as a matter of course. They need to be avoided in a case like yours. However, you are responsible for paying your medical bills, regardless of whether there is a lien or not. The fact that the provider has a lien on the file simply changes their negotiating power. It is relatively difficult to get a provider with a lien to reduce the bill. On the other hand, it is easier to get providers who do not have a lien to take substantially less money, especially if another provider has a lien and is taking a disproportionate share of the insurance proceeds. As a result, liens are something you still want to avoid, but they need not be the end of the world. I will say in your case that it is disturbing that the attorney does not know whether or not there are liens on your file. That is information he should have.
I am disturbed by the fact that you indicated that you keep contacting your attorney to see what is going on, and do not seem to be getting answers. There are usually two reasons for why this might be so. One is that the attorney is simply not doing very much. That is a problem. The other, however, may be that the attorney is involved in a process that is, by its nature, slow. For example, were you the only person injured in this accident? If there are multiple serious injuries and a small amount of insurance, then there is the problem of trying to figure out how to divide limited funds among various claimants. That really can slow everything down. One problem is those cases only move as fast as the slowest attorney, and it might not be your attorney’s fault at all. However, if the attorney has explained the problem to you several times, and you still keep calling, that can lead to extreme frustration on both sides. I think it is important that you figure out which situation you are in, and react appropriately. If the attorney is neglecting your file, then by all means get rid of him. If the attorney is doing the best that can be done with a bad situation, then leave him alone and let him do his job. It might be good to see if there is a member of the attorney’s staff that you can communicate with to get regular updates. That is how I deal with this sort of a problem.
In response to your most basic question, if you are still in the middle of the case, then it is not too late to get a new attorney. The client always has the right to change attorneys. Please be careful with that statement. There is such a thing as bad faith discharge. For example, the insurance company offers the $25,000 and all that is left is for you to sign the release. If you decide to fire your attorney, then that is a bad faith discharge, and he may be entitled to a full fee. However, if you simply become dissatisfied with your attorney’s services, you can go get another attorney. The vast majority of cases that transfer into my office have involved an issue of attorney neglect. However, I have had the misfortune of taking a few, in which it turned out that the reason the case languished was because there were some rather messy issues that needed to be resolved, and it was not the attorneys fault at all.