“Why the Made Whole Doctrine Does Not Apply to Your Lien”

by Attorney Melissa Winther

Recently, we have heard from several chiropractors that their patients’ personal injury attorneys have alleged that the Made Whole doctrine relieves a patient of his/her obligation to pay the chiropractor’s lien. That is not correct. The Made Whole Doctrine limits the rights of insurance companies to get paid back out of an injured person’s recovery. It applies only to a “Payer of benefits” as defined in C.R.S. Section 10-1-135. Chiropractors are not payers of benefits. Payer of benefits “means any insurer, health maintenance organization, health benefit plan, preferred provider organization, employee benefit plan, other insurance policy or plan, or any other payer of benefits. ‘Payer of benefits’ includes a fiduciary of an insurer, plan, or other payer of benefits.’” Benefits “means payment or reimbursement of health care expenses, health care services, disability payments, lost wage payments, or any other benefits of any kind, including discounts and write-offs, provided to or on behalf of an injured party under a policy of insurance, contract, or benefit plan with an individual or group, whether or not provided through an employer.”

When you agree under a lien agreement to wait for payment for your services until a patient’s case is resolved, that does not morph you into a payer of benefits. A physician’s lien agreement is a private contract, not an insurance policy, which is entered into by the parties for mutual consideration after the injury occurs. The fact that you are agreeing to withhold collection efforts for your services does not mean that you have paid any benefits on the patient’s behalf. This is different from a health insurance company which has agreed to pay the health care providers’ bills in accordance with the health insurance contract.

If you are confronted with an attorney who misrepresents the meaning of the Made Whole doctrine, you simply need to let him/her know that you are not a payer of benefits within the meaning of the statute.

Melissa Winthers is an Denver attorney at Fleishman & Shapiro P.C. She represents people who have been injured in collisions and can be reached at 303-861-1000 or mwinthers@colorado-law.net