unfun doctor in the past has never been found to apply to a statutory lien and its application was specifically rejected by this court thirty one years ago and the manner of the parker case the lower court in this manner matter however ruled that the common fund doctrine applies to health care lanes as a result of what it turned was the expansion of the doctrine in the two thousand and two decision by th bishop the guard by applying this expansion or what they termed expansion to be common fund doctrine in the in the the major case and the statute itself well i think that's that's a two part question your honor first off what do you term a benefit the hospital provided services to the plaintiff and we you know are being paid for those services if you compare only the insurance company is paying for the service on behalf of the injured party and then they are seeking to get refunded from those or from from the settlement of the plaintiff without the attorney creating the fund then the insurance company or subrogation leaving is never going to be paid the  plaintiff is never going to have to pay to the insurance company or the summer geisha lane if the attorney doesn't create the fun in the first place however in a hospital situation since we are a creditor as opposed to a sub or gear sub gore we're going to have we're going to have a claim against the plaintiff regardless of one of the fund is created or not so therefore i'm not sure that we are receiving a benefit by simply getting paid for our services just like the attorney is action against the plaintiff if if if the possibles lien is not certain i'm sorry if the hospital's total outstanding bill is not paid through the lien act in the hospital yes has the right to go back after the plaintiff for what is owed it depends on whether what the hospital is owed exceeds forty percent of the settlement that the plaintiff made with be tortfeasor in the case if the if the health care liens do not exceed that forty percent limit then yes the hospital is paid in full on the plan doesn't have to pay anything if they do then there's going to be an amount left over but the plaintiff may be liable for because the hospital is a creditor so it doesn't matter what the settlement is or whether the attorney creates a settlement the hospital still is correct we may not get anything right but his creating the fund is not depending on whether we're owed the money or not whether we're going the money or not because if you look at the subrogation which is this critical difference here the doesn't get paid anything unless the fund is there they can go after the plaintiff were the money that they paid on behalf of the plaintiff they're providing that they're not providing a service so to speak as the hospital is or the attorney is there simply paying the money to the hospital for the medical services based upon their contract that they have with the plaintiff himself because they have the subrogation right they have the right to step in to the lawsuit and to step into the shoes of the plaintiff and prosecute that action however on the other hand the hospital doesn't have that right we have no rights against the tortfeasor in this case and sorry for purposes of applying the common fund doctrine i mean it's pretty easy to apply a common fund doctrine to a subrogation way evan insurance company that's paying the medical providers out of the policy and then they come around with the contract and say oh wait plaintiff you have now have to reimburse us because you got paid by the original tortfeasor but since you know we didn't want to participate in that we didn't we chose not to participate in that case therefore you still owe us the money on the other hand the hospital cannot do that they can't say to the plaintiff we're going to step in your shoes and we're going to prosecute this action i think comes down to the elements are the elements of the plan the common fund dockum on the pla creates a fund well that that occurs here there's no question the plaintiff has created a fun secondly the claimant didn't participate in the creation of the fund i think that's where the analysis between the subrogation main and the health care or creditors supports your position correct but you would agree that it was like a two page case without much analysis that is correct and then bishop undertook a more detailed analysis and that brought up the health care limbs or medic medical liens at that time and said if you find that the common fund doctrine applies to the subrogation lean then you're going to have to plot find it applies to the medical ins also well the court said no that's not the issue before this court so we're not going to rule on that then along comes maynard and i think the court yes it was a two page opinion without much analysis but if you also look at the appellate court's opinion it was much more on analysis and that opinion then there was in the supreme court what we wouldn't be doing violence to any of the rest of it it's a matter of whether we agree with your creditors or brigade distinction or what we hear from the other side of the road i think for that portion of it that is correct but you also have to take into consideration the health care services lane act and how bad applies to what the distribution is under that under the health care services meaning while it never mentions the common fund doctrine they do provide for an attorney to get paid and you know they they changed the common fund doctrine in two thousand and three which was just after the bishop case so the general simply knew all of the cases you know that were coming down ever since one nine hundred seventy seven when they changed the the act and what they did when they changed the act was to take eight different lein acts that you know physicians hospitals psychiatrists there was you know a different lane x and they combined them in the one and they said ok before you each of you could get one third which is the reason they changed it because of this court's decision in borough versus southern trust where the plaintiff didn't receive anything after that location of the attorney's fees and the lien acts so they say fine you have one lien act all of you were put together and you're i'm sorry you're separated into two separate parts one being the providers one being the professionals those two groups each get twenty percent if the professionals bills don't add up to twenty percent or more then whatever is left over goes to the other side so the health care providers are going to get forty percent of the settlement and that's if it only exceed if their bills only exceed forty percent of the settlement if they don't as i said before that the the bills are going to be reasonable and the act itself says for the reasonable charges by the hospital they get paid and the only one that can waive or reduce the lien of the hospital is is the hospital or whoever is the  that situation i don't believe they have the the right to reduce it so getting back to the act they created this pot of money being the settlement they've given forty percent to the health care providers for their liens and they're giving thirty percent to the attorneys he attorneys actual normally the attorney works on a one third basis the general assembly looked at this and said no we want to make it fair for everybody so if the health care providers are going to have to take less then we want the attorneys to take us also so they reduce their lean to thirty percent with the remaining thirty percent going to the plaintiff to make sure that he gets money out of this settlement in the general assembly bait they looked at the attorneys fees i think the they contemplated the attorney season by reducing them i think they basically said the common fund doctrine doesn't apply here we've made a statutory scheme we've set up these different pots of money as they put it and everybody gets paid now if you apply the common fund doctrine i think you're contravening that statute because what happens when it applies there is no i'm not sure that the fact that they didn't put it in there means that you can apply it or not apply it i think you have to look at the legislative intent behind the statute itself and in the situation i think it applied i mean they've they've allowed the attorneys fees the loud the attorneys to get paid i think if you apply the common fund dr on top of that you contravening the intent of the general assembly in creating the statute in the first place because if you apply it then what happens well that the health care providers then are one third of what they would receive of the forty percent is taken from them so now they're down to twenty six in two thirds percent that they got for their health care lien whereas the the statute itself says there is secrecy forty percent so you're taking away what the legislator intended and you're taking it from the health care providers and giving it to the attorneys or and hospital providing the service simply or the hospitals providing the services in the same manner that the attorney is providing a service each party expects to be paid for their work the attorney has a contract with his client saying he receives one third of the recovery the hospital has a contract with its patient saying here's what we're going to charge and we expect you to pay these reasonable charges for our services the common fund doctrine for the equity portion we were discussing applies more in the summer context because the insurance company is coming back and they can only receive the benefit if the attorney creates the fund i think we're back to when you create the fund who is actually getting the benefit so if you apply you know an equitable or if you're saying that it's equitable forward be attorney to take money from the hospital i would disagree with that i think we're both providing services and i see no reason to favor the attorney over the hospital in this case or a physician or any other health care provider as my time is going short yardage in this case the relationship of the parties is still important the fact that the common fund doctrine almost not bent the clear statutory language of the act in this case should be more than enough to find that the lower court's decision must be reversed as was stated in maynard the allowance of counsel fees from the fund is capable of great abuse and should be exercised with most jealous caution in regard to the rights of creditors in this case it is better to leave those concerned a contract for the to adversarial parties but ensures that any party that seeks to veil itself of the fund must contribute a pro rata portion of the cost of producing the fund by pushing the costs to those who benefit from it the the dr and prevents unjust enrichment this court's decision in the bishop vs burger case is the controlling standard for the application of the common fund in the state in or firm claims of any kind by holding that for purposes of applying the common fund doctrine it is irrelevant that the party who benefits from a lawyer services has a right to compensation be it an undifferentiated right of reimbursement subrogation as was asserted there that's just really how does the hospital benefit the hospital benefits from our services by being paid the reason that they're paid is because the lawyer helps create the fund would they have a right even without and without just the fact that they have a right to collect a bill isn't the same thing as collecting the bill and that's the benefit that they receive from the from the creation of the common fund the hospital has a bill that it wants to collect from a patient that relationship is unaffected by the common fund doctrine what is it issue here is what about the lawyers services in creating a fund of money from which they receive a benefit by being paid their bill that's the benefit that they receive but don't they  the lawyers do with a lien they may have a lien but that may be an unrecognized claim they may never recover their money from the patient or from any other source so the point i think of the common fund is that the hospital is doing exactly what the fund is designed to prevent it is the it is taking a fund that's created by a lawyer without participating in the creation of the fund and benefiting from from the fund how you asked the hospital earlier the same question is that not of benefit well or what is the benefit the benefit is in in a in receiving money which is exactly the purpose of having a willingness to try to collect money a lien is a assertion of a right to be paid and that's what they're there that's what is being accomplished in part by the creation of the fund so on as an equitable doctrine so why how is it equitable equitable there is no contract it's a quasar contract to a relationship so that the benefit to the hospital is obviously the fact that their role in the entire creation of the fund is this they hold out their hand at the end when the lawyers finish his services and the case is concluded and there's money available they want money it want to be paid and so the equity in the in that situation is if you receive the benefit of those services by the lawyer then it's only fair that you should share in the cost to the fund of the lawyer see the lawyers fees against the whole f typically the lawyers fee and any personal injury case of the one third of the total fund what what the application this circumstance does is it up portions that third so that the hospital pays a share of the third of the lawyers fee rather than the patient paying all of the lawyers fee and the hospital reaping some of the benefits of that fund that's the equity and as you mentioned  court in discussing the the different situations where the fund would apply the court says the common fund applies irrelevant of the party who benefits from or whether the party who benefits from or services has a right to compensation through subrogation as was asserted in that case or a right to compensation under some other the are all right some other theory to me takes in a lot of ground including a claim lane in a case this clearly establishes the that the real question in applying the common fund dr is whether the claim is there any is there any aspect of the bill or enhanced recovery well they brought that up and they've even suggested that plaintiff's lawyers are unethical for attempting to come to charges or their entire fee in cases like this by suggesting that there's a double recovery but in fact the analysis is as i said a minute ago when you have a the lawyer charges a fee against the entire fund if you practice the plaintiff's lawyer and and here's the contract that you enter into when you engage you when you enter a new engagement with a client is they agree to pay you a percentage of the total recovery in the case if it's ten thousand dollars it would be a third of ten thousand  this case the lawyer is going to charge a percentage of that total fund that's what the lawyers were charged he's not going to charge more than what he's contracted for what the common fund doctrinal ause is for that amount to be apportioned fairly in other words we're dividing up the money from from the from the common fund the lawyer charges a fee should the lawyers fee fall entirely on the plaintiff or should that be shared by the other people who benefit from the from the created fund particularly when those people do not participate in the litigation or the or the other limits and there's a slightly different way of looking at the equities  assertion of the claim right by the hospital to hospital bills those hospital bills to councils even said this may or may not be the actual bills in the case the court always has the option of finding that they are not legitimate medical b equities of the the plaintiffs in this case not burying the full brunt of the fees because the hospital is getting some benefit my question is on the equities what is the attorney doing any differently for purposes of that was i mean you're going in there to try to get the best settlement or best verdict you can right now it's absolutely the lawyers shot and that's the job you're not doing anything different whether there's common fund applies we're not trying to be fair we're trying to get most money for our clients yes exactly right right so when we deal with the equities and it's a debtor creditor relationship and and on one side of the ledger you're saying the equities involve the debtor not having to pay the full brunt of the fees in the creditor who if the judge going back to your example if the judge says these are the legitimate bills the creditor having to do to pay the brunt of  those portion of the brunt of those fees how do the equities balance and then well you know when you have a plaintiff's lawsuit and there are various damages that your advantage i'm here after your client one of the damages that you're at vance ing are the medical bills associated with injuries that may have occurred in your case in fact you become the collector of the bills now who receives the benefit of your efforts as a lawyer to collect those bills i really don't receive the benefit i would i would say the argument could be made both both it both ways it benefits the plaintiff because he has a bill that you're attempting to satisfy but if the hospital comes in and says wait a minute before you give them money to the plaintiff who will then pay asked or we will be able to collect from we want to jump that step we want you to pay us out of the fund now but again you would put those medical bills in even if you didn't get a portion of those fees because it may relate to further damages pain and suffering or what have you as they assess the medical field bills of these of the of the damage the overall damages in the case you're  mean you're not contending you would do anything different if you're not going to get a portion of the fee from the hospital in this case you would have done exactly the same thing correct that's correct i mean that when a case presented on behalf of your client you have to take into account all aspects of it including the bills that the klein has that are so see with that you aren't necessarily arguing about the merits of the of the alleged bills your job is simply to protect your client from having this to suffer the burden of having those bills unpaid in the sense that the jury doesn't consider them so yes you would have to invent stuff to do right and i'm only bringing this up since we've been talking about equit applies to the concept of quantum era wit and unjust enrichment because all of the cases all of them talk about those theories and these are precepts in our law that have been in existence as long as there's been a law in the state and that's the law that the law of equity is what we're talking about applies in this instance it in the common fund doctrine there have to be certain things done before the war can have vance a claim under the common fund  doctrine first of all the fund has to be created through his efforts his or her efforts then the claimant the person wants to claim something against the fun could not have participated in or contributed to the creation of fun i don't know maybe that was mistaken but the common fund doctrine reduced the amount bishop the administrator of the plainest insurance benefit plan received from plaintiffs settlement fund as reimbursement for the medical recognized that fact but in its language it broadened the scope of the application of the funder there is no other way to interpret the statement that it applies not just t claims but to rights to compensation under some other theory that those are the courts words i would also say that the bishop court pointed out that the the application of the common fund does not affect the underlying relationship in that case between the planned participant and of the plan itself the risks of plan because you could not first of all that's a federal law are but the but the court pointed out that we're not saying you fund don't have your relationship with this fund participant plaintiff what we're telling you is th i don't know if it would or would not have had the opportunity to do that i don't know if you could proceed on its own under the terms of its own contract with that plan purchased from perhaps they could perhaps the hospitals could i'm a bad bet that that misses the point that if you do nothing in someone else does something for your benefit that's the whole concept of the quantum of quantum erowid in our law the hospital is argued that the health care services lean act does not provide for reduction of liens under the common fund doctrine in the common fund doctors based upon the common law and equitable principles and those still apply even when they are not specifically enumerated within particular statutory schemes the hospital's line of argument suggests that if a common law rule or an equitable remedy is not set out within the text of the statute then it would no longer be a that simply misconstrues the law the hospital also argues the legislative history of the health care services lien act reflects the legislature did not intend for the common fund doctrine to apply to liens created under th the general assembly in admits did not discuss the common fund and did not incorporate it into the ad again the common fund the common law and equitable remedy still apply even when not specifically enumerated within the statute the statute is inactive when the statutes enact it it's presumed the legislature had full knowledge and norse of the existing law if the legislature wants to overrule case law and abrogate the equitable equitable issues apply only to the fund after it's after it's created and the the equity is the fund the three prong test is who did it did they did the fifth and should they pay and in this out said in in the bishop case that the bases it's basically said is that it's a difference without a distinction and so if you apply the equities after the fund is created and that's the only way you can it but i think the more distant sort of passed over here is the hospital's desire to collect from the fund is voluntary they don't have to they can they can they can file their own also they do what they want to do they and they are not bound by  there's if there's any money if they take the fund they don't get full payment they can go after their after clear they benefit from being pre paid or being paid earlier but they must benefit or they would not choose to elect to comply with the cause the injured party to have more responsibility after this allocation than before because they be getting less than the forty percent so they get  would be ten percent was taken off the bill that the injured party owes to the hospital there is nothing taken with the bill they have no obligation to sunset or tell you just how you allocate the funds that are received has nothing to do with the bill that they will ten thousand dollars gotten their lien would have been satisfied to five thousand dollars or so the point of being i mean the injured party would be responsible for five thousand if they only get four thousand it isn't the injured party responsible for six change the law doesn't change the amount owed doesn't change anything you're still talking about ten thousand dollars debt the hospital if if if if if you're using your figures as four thousand dollars paid only hospital can still sue for six and it doesn't change anything the law is going to get paid the client's going to if we have a ten thousand dollar bill and the lien act allows us to get five thousand using justice garments example the five thousand is still going to be owed by the plaintiff the hospital can go after the planner for that if the application the common fund only allows us to get four thousand dollars then yes the plaintiff is going to be responsible for the remaining six so it is you know it is to the detriment of the plaintiff now that's if you assume that the attorney is keeping the money that he gets some of the common fund doctrine which contractually that they're not supposed to do but my question is since the act or  my position is since the act only allows the attorney to get thirty percent but his contract allows him to get one third what happens that in the third or that other three percent is the client get that i mean we may not be hospital bill so the client is going to be still only thing that amount of money to the hospital that answer a question but we have to put it into view equation and i think this is where mr womack was going if the common fund applies right and there's ten thousand dollars and he's getting let's say thirty percent or so the hospital is getting seven thousand and three thousand is going to the common fund very early to the attorney or well if it's ten thousand let's say it is ten thousand meters going to get three thousand the hospital is going to get four thousand and the plainest going to get the remaining three that's what would happen without a plan the common fund doctor going to be used to will have the right to go after as you just indicated go after the plaintiff for the balance of that is absolutely correct the statu specifically provides for that but what the attorney has provided for the plaintiff is they're not it's kind of a was is it i mean they're not paying attorney's fees on the portion that the hospital would pay a three yes it is kind of a wash that that the plaintiff's going to get the money the problem is the hospital cannot go after that portion of the settlement that the plaintiff receives we have to go after whatever other assets they have nothing if the plaintiff doesn't have any other assets then you know they can file for the charity care or the hospital can simply just write it off and forget about it and that happens a lot of situations and in fact in my situation and not not in this case but another in other cases i have you know simply told the clerk the plaintiff has to lean and then fill out a charity crap location if you qualify the remaining balance is going to be you know taken off so you're not going to owe that so i'm not so sure that's that's the issue i think what you need to look at is what really happened in bishop did expand the doctoring i mean if you look at the case itself it deals with arista and the only difference between bishop and the shortens case is that in bishop they put in a paragraph that said we're not going to be responsible for attorney's fees the court looked at it and said ok great but a receipt doesn't apply once we get past and listen not applying that they didn't even talk about hospital aims or statutory lin's throughout the entire opinion that issue wasn't before the court but we have to give some we have to give some meaning to the word claimant right or wouldn't be that that's correct i would soon you have to give some meaning but it doesn't mean you have to give it a meaning that now it replies to statutory leaseholders i'm not sure that's that's what the court met and maybe they did i don't know the answer to that question but my contention is that the doctrine were not before the court in bishop and if they're expanding it to that i would think they would at least mention that this applies to statutory liens and it wasn't and they didn't mention maynard either mayor had been around for a while now i don't think he ever said one word about it and the entire case although they did mention subrogation close to seventeen times they've never mentioned statutory lanes and it's very easy to apply the common fund doctrine to death situation you've got all three elements meant in our case the elements are not met we cannot participate in the creation of the phone we're not allowed to free word then maybe it could be met but we're not allowed to participate in it we we have no rights against the third party tortfeasor so we cannot get into this case the insurance company can and in fact they can avoid becoming phone doctor they can simply send it what's called a ten year letter to the plaintiff's attorney and say we're going to participate in this we don't want you to represent us and then they go and they participate in the litigation to intervene in it so they can avoid the application of the common fun doctrine under our situation we can't even do that so you're going to see we're automatically subject to the common fund doctoring even though you're not allowed to participate in it but because you're not allowed to participate in it you meet that element talk about equitable that's that's not applicable to the hospital where we have if we have the right to participate in it maybe we would it would get involved in it maybe wouldn't there be intervened in it and maybe that should be the test that the legislature put in but they didn't and we're looking at the legislative fact that was put forth and saying that health care liens get forty percent attorneys get thirty percent and the plaintiff gets thirty percent i think if you go outside of that you're contravening the intention of the hospitals and fire yeah but i'm of the ethical rules the attorney would most likely give that money to his client which is what we're talking about really on a watch like one of his contract with his client i think it would be required that's not to say it hasn't happened before where the attorney didn't and in fact there was a two thousand and six era d c case where the attorney didn't give it and he said he didn't give it to the client because he went to a seminar that was planned and said you didn't have to is one third doesn't mean that's what every attorney follows where he has a contract for forty percent does he keep the forty percent or does he take the thirty percent and give the rest to his client i don't know what they would do what they're required to do i'm not even sure of that if you've got a contract that's greater than the amount that's provided for the statute which is why i think the common fund auction wouldn't apply to this statute if the legislator had wanted it to apply i think a very capable of putting it into the statute as they've done it before know how to do it and then they are aware of it and they understand that the common fund you know doctrine is out there the fact that they didn't put it in would seem to me you know they didn't want in there thank you thank you mr daley mr foley mr only we thank you for your presentation today not sure i accurately identify this case when i called it there's five different parties so let me try again for the record haste number one one