This article has been published in “The Advocate”, a monthly publication of the Arizona Association for Justice/Arizona Trial Lawyers Association, November/December 2016 issue, @2016 by Steven J. Bruzonsky, Esq.
Premier Physicians Group, PLLC v. Navarro:
A.R.S. §33-931 et seq Health Care Provider Liens
The Recording Requirements Set Forth in the Lien Statutes:
The Arizona health care provider lien statutes, A.R.S. §33-931 through §33-934, have different requirements for the filing of hospital and ambulance vs other health care provider liens:
Hospital/Ambulance Health Care Provider Liens: A.R.S. §33-932(D) provides that “A hospital or ambulance service lien that is not recorded within the time prescribed by this section is effective against any settlement or judgment for damages if the lien is recorded thirty days before the settlement is agreed to or the judgment is paid except if the lien is recorded in a county where liens are accessible on the internet, the lien is effective if the lien is accessible on the internet thirty days or more before the settlement is agreed to or the judgment is paid. If the lien is not recorded or is not accessible on the internet as provided in this section, the lien is invalid and may not be enforced by the cause of action provided in section 33-934.”
Non-Hospital/Ambulance Health Care Provider Liens: A.R.S. §33-932(A) provides that “licensed health care provider - - - shall record, before or within thirty days after the patient has received any services relating to the injuries, except a hospital which shall record within thirty days after the patient is discharged - - -.” A.R.S. §33-932(C) provides that “If a health care provider other than a hospital or ambulance service does not record the - - - lien - - - as provided in this section, the - - - lien - - - is invalid and may not be enforced by the cause of action provided in section 33-934. “
The Arizona Supreme Court decision in Premier Physicians Group, PLLC v. Navarro, No. CB-15-0323-PR (August 30, 2016):
This case has multiple important ramifications concerning A.R.S. §33-931 et seq health care provider liens: (1) Hospital and ambulance liens for “customary charges” are valid and enforceable by cause of action as provided in A.R.S. §33-934 (against the third party tortfeasor), if recorded 30 days before the settlement is agreed to or the judgment is paid - or in counties where liens are accessible on the internet, e.g. Maricopa County, if accessible on the internet thirty days before the settlement is agreed to or the judgment is paid; (2) Non-hospital or ambulance liens, filed by other health care providers, for “customary charges” are valid and enforceable by cause of action as provided in A.R.S. §33-934 (against the third party tortfeasor), if recorded before services are first provided or within 30 days thereafter; (3) Health care providers must “strictly comply” with the statutory recording requirements, including those set forth at A.R.S. §33-932(A); and (4) Reasonable attorney fees may in the court’s discretion be awarded to the prevailing party, whether the prevailing party is the lienholder or the tortfeasor.
The facts of this case are as follows: Premier Physicians Group, dba Premier Pain Management, provided medical care to Mandy Gipson, for injuries sustained in a car accident allegedly caused by Kimberly Navarro, between June and October 2011. Premier recorded a lien to secure payment of approximately $12,000 for its services on September 16, 2011. In March 2013, the Nevarros’ insurer paid Gipson directly to settle her claim but did not satisfy the lien. Gipson failed to pay Premier for the services it rendered to her. In January 2014, Premier sued the Navarros under A.R.S. §33-934 to enforce the lien.
The Arizona Supreme Court affirmed the trial court’s dismissal of Premier’s complaint, vacated Division One’s contrary opinion, and awarded attorney fees to the Navarros as the prevailing party under A.R.S. §33-934. The Court notes that these liens were only available to hospitals; in 1988, the statutes were amended to extend the liens to non-hospital health care providers; and the lien statutesplainly treat hospitals and non-hospital health care providers differently in terms of lien recording requirements. The Court held that “Viewing the disputed language in the context of the entire statute thus yields only one reasonable interpretation. For these reasons, we conclude the legislature intended § 33-932(A) to require non-hospital providers to record liens before services are first provided or within thirty days thereafter. Premier’s lien was not timely recorded, and the trial court therefore properly dismissed Premier’s claim against the Navarros.”
In this opinion, for the very first time, the Arizona Supreme Court holds that “To perfect a medical lien, a health care provider must strictly comply with statutory recording requirements. See Nationwide Mut. Ins. Co. v. Arizona Health Care Cost Containment Sys., 166 Ariz. 514, 517, 803 P.2d 925, 928 (App. 1990) (“Although Arizona lien statutes are remedial and are to be liberally construed, their provisions must be strictly followed.”).
Those requirements are set forth in § 33-932(A):
In order to perfect a lien granted by § 33-931, the executive officer, licensed health care provider or agent of a health care provider shall record, before or within thirty days after the patient has received any services relating to the injuries, except a hospital which shall record within thirty days after the patient is discharged, in the office of the recorder in the county in which the health care provider is located a verified statement in writing setting forth all of the following:
1. The name and address of the patient as they appear on the records of the health care provider.
2. The name and location of the health care provider.
3. The name and address of the executive officer or agent of the health care provider, if any.
4. The dates or range of dates of services received by the patient from the health care provider.
5. The amount claimed due for health care.
6. For health care providers other than hospitals or ambulance services, to the best of the claimant’s knowledge, the names and addresses of all persons, firms or corporations and their insurance carriers claimed by the injured person or the injured person’s representative to be liable for damages arising from the injuries for which the person received health care.”
The Arizona Supreme Court, noting that A.R.S. §33-934(B) authorizes an award of reasonable attorney fees to a “prevailing party” in an action arising under A.R.S. §33-931, awarded reasonable attorney fees and costs to the Navarros as the prevailing partiesunder A.R.S. §33-934(B) upon compliance with ARCAP 21(b). This puts to rest the longstanding incorrect contention by health care lien attorneys, such as Gammage and Burnham, that attorney fees are only available to the health care provider seeking to enforce its lien.