Tankersley v. Parkview Hospital, Inc.

MATTINGLY-MAY, Judge,

concurring in result with separate opinion.

I agree with the majority that summary judgment in favor of Parkview was improper in this case. In light of 1) the unusual timing of Phillips' retention of Tankersley and Parkview's filing of its lien, 2) Parkview's knowledge shortly thereafter that there had been a change in Phillips' counsel, and 3) Parkview's failure to act despite that knowledge, I must agree that Parkview failed to perfect its lien.

However, I write separately to address my concern over what constitutes constructive or actual notice to a plaintiff's attorney of a hospital lien. The majority relies in large part on Ind.Code § 32-8-26-4(c), which addresses constructive notice of hospital liens. The majority correctly notes that a hospital's claim filed under the statute is notice to "all persons . who may be liable because of the illness or injury." Id. The majority goes on to state that the lien operates only against those persons and entities identified in the statute. It then determines the lien was not perfected as against Tankers-ley because the hospital did not mail notice to Tankersley, id. § (c)(1), Tankersley did not reside or have his office in the county where the lien was perfected, id. § (c)(@), nor was he an insurance company, id. § (c)B).

The majority appears to assume that the requirements of section 4(c) must be satisfied if the filing of a hospital lien is to serve as constructive notice to a plaintiff's attorney. I believe that assumption is incorrect, and I would decline to interpret section 32-8-26-4(c) to include a plaintiff's attorney in the category of "persons ... who may be liable because of the illness or injury."

First, it is not apparent that the plain meaning of the phrase "persons ... who may be liable because of the illness or injury" would encompass the category of plaintiffs' attorneys. Furthermore, the statute itself explicitly indicates plaintiffs' attorneys and "persons ... who may be liable" are separate categories. Section (b)(2) requires the hospital to send a copy of the lien statement to persons in three distinct categories: 1) the persons "claimed to be liable because of the illness or injury"; 2) the attorney representing the patient, if the hospital knows or could discover with reasonable diligence the attorney's name; and 3) the department of insurance. It is therefore apparent that the legislature intended not to include the patient's attorney in the category of "persons ... who may be liable because of the illness or injury."

Although a plaintiff's attorney is not included in the statutory category of "persons ... who may be liable" and for whom specific notice requirements are set forth, I believe the hospital's lien, had it been filed while Isaacs was still Phillips' attorney and served on Isaacs, might well have served as constructive notice to Tankers-ley. We noted generally in Keybank Nat. Ass'n v. NBD Bank, 699 N.E.2d 322, 327 (Ind.Ct.App.1998) that constructive notice *892is provided when a deed or a lien (there, in the form of a mortgage) is properly acknowledged and placed on the record as required by statute.

We further stated that "actual notice may be implied or inferred from the fact that the person charged had means of obtaining knowledge which he did not use. Whatever fairly puts a reasonable, prudent person on inquiry is sufficient notice to cause that person to be charged with actual notice, where the means of knowledge are at hand and he omits to make the inquiry from which he would have ascertained the existence of a deed or mortgage. Thus, the means of knowledge combined with the duty to utilize that means equates with knowledge itself." Id.

There may occasionally be situations like the one before us where an attorney does not receive a mailed copy of a hospital lien statement. I cannot, however, envision a situation where an attorney representing a personal injury plaintiff would be unaware that his or her client had received medical treatment from a hospital, would not know where the treatment had been administered, would not know the county where the hospital was located, and would be totally unfamiliar with the concept of a hospital lien.

I would not exclude plaintiffs' attorneys from the category of "reasonable, prudent persons." Rather, I believe plaintiffs' attorneys are required to operate at the same levels of reasonableness and prudence as must all other persons. Accordingly, I believe a responsible plaintiff's attorney is obliged, as part of the case settlement process, to determine whether any hospital liens have been filed and to ensure they are dealt with.

However, as the majority notes, Park-view had notice that it had not properly perfected its hospital lien, yet it failed to act. Under these unique circumstances, I must agree with the majority that summary judgment in favor of Parkview was improper.