Arizona Lien Law Provisions – By David Morrison, Esq.
I have been asked to discuss Arizona lien law as it pertains to chiropractic providers. Arizona passed a new lien law in 2023 because of heavy lobbying by the plaintiff’s attorney bar and a legislator that felt she had been mistreated by the way personal injuries were being handled. As a result, chiropractors who file liens are forced to negotiate their bills.
I reference you to ARS Sections 33-931 through 33-937. Most of the changes are encompassed in Section 33-937.
First, provider liens do not apply to UM, UIM or Medical Payments coverage. Second, the lien for a chiropractor must exceed $250. Please note no such limitation exists for hospitals. Also note that hospital liens have priority over all other liens.
Third, some of the new language that was added reads as follows: “One third of any third-party judgment, settlement or award is exempt from any lien or assignment authorized by this section (33-931 (E)(1)).”
This was added to “protect” the injured party, but note that most PI attorneys charge one-third of the recovery as their fees. Seems like quite the coincidence.
Fourth, under 33-931 (E)(2), if the injured person has health insurance and the provider is in-network, the provider cannot file a lien. If the in-network contract allows liens, then the provider can file.
Lastly, take note of 33-937, which requires providers to compromise any lien filed pursuant to 33-931. This section also provides a list of 11 items that must be taken into consideration when negotiating the lien. (33-937 (B) (1-11)
There are some exceptions to these requirements: (33-931 (E)(3) (a-d). The easiest exception to apply is having the injured party opt out of their health insurance coverage. The problem with this option is it puts the provider in the position of providing “legal advice” as to whether the injured party wants to take advantage of their coverage. This could create a problem later in the case.
Personally, I believe the forced negotiation provision may be unconstitutional and unenforceable. I don’t believe you can force someone to change their prices after the services have been provided and the injured party has agreed to pay for them. However, I have yet to have a chiropractor want to challenge that aspect of the new law.
David Morrison is a personal-injury attorney and counsel for the Arizona Chiropractic Society.
California Assembly Bill 35 – By Keith Carlson, Esq.
Given legislation that’s gone into effect in 2024, California is now on the path to more than tripling the cap on certain damages in malpractice cases over the coming years. This came about with the signing of Assembly Bill 35, which significantly amended the Medical Injury Compensation Reform Act, or “MICRA.”
MICRA was passed in 1975 to combat skyrocketing health care costs stemming from increased medical-malpractice actions. It spawned a small industry in Sacramento, seeking to preserve the MICRA protections (supported by providers) and to lift them (supported by trial-lawyer groups).
Following much negotiation and wrangling in Sacramento, a “compromise” (of sorts) finally passed and was signed into law late in 2023. The trial lawyers were again planning to run an initiative to remove the caps. Such initiative drills are costly to defend and politically difficult to predict – the initiative at issue here was removed from the ballot as part of the deal allowing AB 35 to pass.
The biggest news is the $250,000 cap on non-economic damages has now been increased to $350,000 in malpractice cases. The cap will annually increase for a decade to $750,000 ($40,000 per year). Thereafter, an inflation adjustment of 2% will be added annually.
The law also doubled the wrongful-death cap and adds more annual increases to it, too. Further, it significantly increased the judgement amount required should a defendant want to use periodic payments to satisfy the judgement. Previously, a $50,000 verdict would provide an avenue to pay over time; now the verdict would have to be $250,000.
On the providers’ side, it prevents someone’s apology or statement of sympathy from being used in any legal proceeding. So, while physicians will be liable for more damages, and must pay them immediately, they will be able to say “sorry” with less fear of liability.
Keith W. Carlson is counsel for the California Chiropractic Association and a founding partner with Carlson & Jayakumar LLP.
New York Toughens Rules on What Unlicensed Assistants Can Do – By Michael Schroeder, Esq.
As some chiropractic doctors have diversified into spa-type services, there has been a shift in how lawsuits are being brought alleging malpractice injuries. Plaintiffs attorneys in New York are now not only suing spas for alleged malpractice, but also for allegations that providers have exceeded the scope of their licenses, including allegations of the unauthorized practice of medicine.
This is important because, under most professional liability and/or commercial general liability policy, you are only covered for services rendered by providers who are properly licensed to render such services.
The NYS Department of Education recently published a chart entitled “Appearance Enhancement Licensees- Procedural Service Determinations.” The NYS Department of Education states on the chart that it may be used to help identify procedures or services that may be performed by Appearance Enhancement licensees. The chart can be accessed here.
While to our knowledge, no court has yet rendered a decision on whether the chart or its assertions are an accurate statement of New York law, a court presented with this issue could find this publication persuasive.
Notably, the chart lists a number of procedures and then indicates whether those procedures can be performed under the following licenses: esthetics, cosmetology, nail specialty, natural hair styling, and waxing. The chart indicates that the following services cannot be performed with any of those license types or by unlicensed assistants: acupressure (feet-head-back); aroma touch technique; cool sculpting (deep down penetration to freeze); cryotherapy; dermarolling/microneedling (collagen induction therapy); diatherapy, RF (Cellutron); diatherapy – skin treatment (broken capillaries); ear candling; electrodessication; eyelash and eyebrow tinting; eyelash perm/lift (using chemicals); fillers (injections of Botox, Restylane, etc.); fish pedicure (garra rufa); laser procedures (other than laser hair removal); low level laser therapy (LLLT); manual lymphatic drainage (waste removal; edema); deep tissue massage; microblading (semi-permanent); nano-needling/micro-channeling (Rezenerate Wand); Neuromuscular Massage Therapy (NMT); Ombre/Powdered Brows; dermal peels; pen treatment, hyaluronic; pen treatment, plasma/fibroblast; permanent makeup (tattoo); plasma skin tightening; platelet-rich plasma (PRP); radiofrequency (RF) facial; skin sheek clear procedure; skin sheek lift (HIFU); skin tag removal; synergy, electrical optical (elos); teeth whitening/bleaching; and thermage.
If you are having any of these services provided in your office, please be sure that your providers are properly licensed.
Michael Schroeder has represented the chiropractic profession for over 40 years. He is the president of the National Association of Chiropractic Attorneys, general counsel for the National Chiropractic Council, and has represented the California Chiropractic Association, the California Board of Chiropractic Examiners, and numerous other chiropractic entities.
Some doctors thrive in a personality-based clinic and have a loyal following no matter what services or equipment they offer, but for most chiropractic offices who are trying to grow and expand, new equipment purchases help us stay relevant and continue to service our client base in the best, most up-to-date manner possible. So, regarding equipment purchasing: should you lease, get a bank loan, or pay cash?
Some pundits say that the upcoming presidential and congressional races, and many local races, might be the most consequential in our country’s history. We do not have the choice of sitting on the sidelines and hoping our patients will carry our water. Unlike other medical professions such as physical therapists, podiatrists, nurses, etc., the health care class (AMA) will not protect us. We must be in the game.
The most common condition affecting the shoulder is rotator-cuff disease. From acute tears to chronic tendinopathy, it’s common and needs a thorough workup. In fact, even asymptomatic shoulders can have full-thickness rotator-cuff rears in up to 40% of instances. Let’s look at additional conditions that can present to the office with weakness, loss of motion and pain in the shoulder beyond rotator-cuff tears.
