Bergan Mercy Health System v. Haven

McCormack, J.,

dissenting.

I believe that Neb. Rev. Stat. § 52-401 (Reissue 1998) is special legislation, violative of Neb. Const. art. III, § 18. On that basis, I would affirm the judgment of the trial court.

PARTI

I agree with the majority regarding the fact that § 52-401 deals with two different classifications, and I agree with the majority’s assessment of the intended purpose of the statute. I believe, however, that the classifications set forth in § 52-401 are not based upon a reasonable distinction from other subjects of a like general character and that the distinction that is present does not bear a reasonable relation to the objectives and purposes of the legislation. See Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995).

The unreasonable classifications of the statute are the result of the Legislature’s not choosing a legitimate objective and enacting legislation to achieve that objective. If the objective is to provide for emergency care, for instance, then the statute is too broad because it is not limited to emergency care. If the objective, however, is to provide for all health care needs, then the statute is too narrow because it does not encompass all health care providers.

Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference. State ex rel. Douglas v. Marsh, 207 Neb. 598, 300 N.W.2d 181 (1980). I see no substantial difference between hospitals, doctors, and nurses and other health care providers whose services are equally necessary and valuable to persons injured by tort-feasors.

In Stanton v. Mattson, 175 Neb. 767, 123 N.W.2d 844 (1963), the appellant sought a declaratory judgment regarding the constitutionality of a statute allowing higher interest rates for retail *865installment contracts. This court determined that the statute was special legislation, stating:

Are there real differences in situation and circumstances that warrant making retail sellers on installment contracts a reasonable classification for fixing a higher interest rate for a loan or forbearance of money, goods, or things in action?
We can see no valid reason, nor has one been pointed out to us, that warrants retail sellers to charge a rate of interest that is denied to all others.

Id. at 771, 123 N.W.2d at 847-48.

Similarly, in the instant case, there is no valid reason for affording hospitals, doctors, and nurses a method of securing debts that is denied other providers of necessary health care services. From the perspective of indigent injured persons, there is no reasonable distinction.between the services provided by hospitals, doctors, and nurses and other necessary services of other health care providers.

PART II

Second, I do not believe the classification of persons injured by tort-feasors forms, by itself, a proper and legitimate class with reference to the ostensible purpose of the act. See, Kuchar v. Krings, supra; State ex rel. Douglas v. Marsh, supra. While encouraging the provision of health care to indigent accident victims is a worthwhile legislative purpose, the terms of § 52-401 are not focused on that purpose.

The legislative history of § 52-401 indicates that the Legislature was concerned with the financial losses that could be sustained by hospitals, doctors, and nurses who treated indigent accident victims, absent an effective lien statute. The statute does not, however, limit the ability of hospitals, doctors, and nurses to perfect liens simply to those circumstances where indigent persons are otherwise unable to pay for services. Instead, § 52-401 allows the health care provider to perfect a lien against all persons injured by tort-feasors, regardless of whether or not the injured person has access to insurance or some other source of payment.

This creates the possibility that an injured person could have access to health insurance, yet the hospital, doctor, or nurse *866could refuse the payment offered by an insurance company and choose to pursue a potentially more lucrative payment from the injured party’s tort judgment. Compare Ind. Code Ann. § 32-8-26-3 (Michie 1995) (lien must be reduced by amount of medical insurance proceeds paid to hospital on behalf of patient). It is difficult to see how the purpose of encouraging health care for indigent persons can justify liens against a class of injured persons that is not limited to indigent persons.

Similarly, the legislative history indicates that one of the primary concerns of the Legislature was the financial effect of uncompensated emergency care. The statute, however, does not limit the costs that can be secured by the lien to the costs of emergent care. Compare Mo. Ann. Stat. § 430.230 (West 1992) (limiting lien to $25 per day plus necessary x-ray, laboratory, operating room, and medication services). Nebraska’s statute, however, becomes overly broad and does not limit itself to the purpose as expressed in the legislative history. Under the Nebraska statute, a hospital or doctor would have a lien for services rendered 2 years after the accident, and that certainly cannot be labeled as emergent care. In Meta Calder, Florida’s Hospital Lien Laws, 21 Fla. St. U. L. Rev. 341 (1993), there is a study on how the various states limit their lien for emergent care. This study shows:

Limitation of Lien: State:

Limited to 1 week after receiving injury Alabama

Limited to first 72 hours of emergency; then lien attaches to 50 percent of final judgment or settlement California

Lien based on “ward rates” and limited to one-third of sum paid Illinois

Lien may not exceed $5,000 Kansas

Limited to 50 percent of recovery Maryland

Limited to “ward charges” Massachusetts

Limited to $25 a day and reasonable costs of necessary x ray, laboratory, operating room, and medication; limited to 50 percent of recovery after attorney fees Missouri

“Ward rates.” Limited to 25 percent of total recovery New Jersey

*867New York Limited to “cost rates” for injury received up to 1 week prior to hospitalization

North Carolina Limited to 50 percent of total amount recovered exclusive of attorney fees

Tennessee Limited to one-third of recovery

Texas Limited to hospital charges from first 100 days of hospitalization for person admitted to hospital within 72 hours of accident

Virginia Limited to $1,500 for hospital and $300 for physician, nurse, or physical therapist

Washington Limited to 25 percent of recovery

Moreover, the testimony from the legislative history indicates that the primary complaint of health care providers was that they would incur financial losses from nonpaying accident cases. This concern, however, could be alleviated by the limited step of allowing health care providers a lien to recover the actual costs of the treatment. See, e.g., Conn. Gen. Stat. Ann. § 49-73 (West Cum. Supp. 2000) (limiting lien to the extent of the actual costs of service and materials). The purpose of protecting health care providers from financially debilitating losses could be achieved by so limiting the lien and by not allowing health care providers to potentially assert a lien for additional profit from the accident victim’s tort judgment.

In short, I believe that the purpose of making health care available for indigent accident victims is not reasonably related to the overly broad classification of persons injured by tortfeasors, as all persons injured by tort-feasors are not indigent. The vast majority of people who enter hospitals have insurance and are, therefore, not indigent. The further objection that I have to § 52-401 is that it allows liens to be perfected for amounts that go beyond the expenses of the health care provider in rendering treatment for emergent care.

Hence, I respectfully dissent.