189 - Liens of hospitals.
§ 189. Liens of hospitals. 1. Every corporation incorporated under general law or special act as a charitable institution maintaining a hospital in the state supported in whole or in part by charity, the state university of New York and every county, city, town or village operating and maintaining a hospital shall to the extent hereinafter provided have a lien upon any and all rights of action, suits, claims, counterclaims or demands, of any nature whatsoever, of any person receiving emergency treatment or admitted to any such hospital and receiving treatment, care and maintenance therein, on account of any personal injuries received within a period of one week prior to receiving emergency treatment or admission to the hospital and as the result of the negligence, wrongful act or any other tort, of any other person or persons or corporation, which any such injured person or the legal representative of such injured person, in case of death as the result of such injuries, may or shall have, assert or maintain against any such other person or corporation for damages on account of such injuries, for the amount of the reasonable charges of such hospital, for the treatment, care and maintenance of such injured person at cost rates in such hospital. If such injured person received emergency treatment or was admitted to the hospital on account of personal injuries received within a week prior to such treatment or admission, the state university or any such corporation or such municipal corporation maintaining a hospital to which such person may be transferred for subsequent treatment of the same injuries shall also have a lien as provided herein although such transfer may occur during or after a week from the time when such injuries were received. No such lien shall be effective, however, unless a written notice containing the name and address of the injured person, the date of the accident, the name and location of the hospital and the name of the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received, shall prior to the payment of any moneys to such injured person, his attorneys, or legal representatives as compensation for such injuries be mailed, registered or certified and postage prepaid, to the person or persons, firm or firms, corporation or corporations, alleged to be liable to the injured party for the injuries sustained prior to the payment to such injured person, his attorneys or legal representatives, as compensation for such injuries. Such hospital shall mail a copy of such notice to any insurance carrier which has insured such person, firm or corporation against such liability. Such mailing shall be deemed to be effective notwithstanding any inaccuracy or omission therein if the information contained therein shall be sufficient to enable the person or persons or corporation alleged to be liable, by the exercise of reasonable diligence, to identify the injured person, the occurrence upon which the claim for damages is based and the name and address of the hospital asserting the lien. Any hospital claiming a lien hereunder shall, in addition to the foregoing, file in the office of the county clerk of the county in which the hospital is located and mail to the persons and in the manner above provided, after the discharge of any injured person, an additional notice of lien, duly verified, which shall show the total hospital charges which have accrued and no lien hereunder shall exceed this amount. 2. (a) Subject to the provisions of paragraph (b) hereof the lien of any such hospital shall attach: (i) To any verdict, decision, decree, judgment or final order made or rendered in any suit, action or proceeding of any nature whatsoever, brought in any court of this state, by such injured person, or the legal representative of such injured person in case of death as the result of such injuries, against any other person or persons or corporation for the recovery of damages orcompensation on account of such injuries or for the death of such person resulting therefrom, as well as to the proceeds of any settlement of any such verdict, decision, decree, judgment or final order made or rendered in any such suit, action or proceeding. (ii) To the proceeds of the settlement or compromise of any such suit, action or proceeding, effected, before any verdict, decision, decree, judgment or final order is made or rendered therein, by any such injured person or his legal representative in case of death, with any other person, persons, or corporation claimed or alleged to be liable for said injuries or death, or with any other person or persons or corporations on account thereof. (iii) To the proceeds of the settlement or compromise of any such claim, demand, or cause of action effected, before the commencement of any suit, action or proceeding thereon, by any such injured person or his legal representative in case of death, with any other person, or persons or corporation claimed or alleged to be liable for said injuries or death, or with any other person or persons or corporation on account thereof. (b) In the case of a recovery by judgment, settlement or compromise under sections one hundred nineteen and one hundred twenty or one hundred thirty, one hundred thirty-two and one hundred thirty-three of the decedent estate law, such lien shall attach only if the reasonable expenses of medical aid, nursing and attention incident to the injury are an element of the damages recoverable in such action. 3. After the filing of the notice and mailing of the copy and statement as herein provided, no release of any judgment, claim, or demand by such injured person shall be valid or effective against such lien. The person or persons or corporation making any payment to such injured person or his legal representative for the injury sustained shall give notice by registered mail to the hospital having such lien and shall for a period of one year from the date of the receipt of such notice by such hospital as aforesaid remain liable to such hospital for the amount of its reasonable charges as aforesaid due at the time of such payment, to the extent of the full and true consideration paid or given to the injured person or his legal representative, less the amount of any other liens or claims against such moneys superior to such hospital lien, and the state university or any such corporation or other institution or body maintaining such hospital may within such period enforce its lien by a suit at law against such person or persons or corporation making any such payment or gift. 4. Every county clerk shall, at the expense of the county, provide a suitable, well-bound book, to be called the hospital lien docket, in which, upon the filing of any lien claim under the provisions of this section, he shall enter the name of the injured person, the date of the accident or event causing the injury, the name of the hospital or other institution making the claim. The said clerk shall make a proper index of the same in the name of the injured person. 5. Any person or persons, firm or firms, corporation or corporations legally liable for such lien or against whom a claim shall be asserted for compensation for such injuries, shall be permitted to examine the records of such hospital or of any such corporation, or other institution or body maintaining such hospital in reference to such treatment, care and maintenance of such injured person, except such confidential communications or records as are privileged, unless such confidential status shall have been waived. 6. The lien of any such hospital under the provisions of this section shall not apply to any award or settlement made pursuant to the workmen's compensation law of this state, nor to the proceeds of anysuch award or settlement, in respect to the injury for which a lien is filed, nor in case the amount paid to the injured person or his representative in the event of death in settlement or compromise is three hundred dollars or less. 6-a. At any time after the filing and mailing of the notices of lien as provided in subdivision one of this section, any such injured person, or his legal representative in case of death, such hospital, or any person, firm or corporation alleged to be liable to the injured person or to his legal representative, may apply for an order determining the validity of such lien and fixing the amount thereof. Such application shall be made to the surrogate of the county wherein letters have been issued to the executor or administrator of the injured person, or to any court which would have jurisdiction of an action based upon contract for a sum equal to the amount set forth in the notice of lien filed in the office of the county clerk as provided in subdivision one of this section; provided, however, that except for an application made to such surrogate, the application shall be made in the county in which the notice of lien has been filed. Such application shall be made upon not less than eight nor more than ten days' notice. Notice of the application shall be served upon the following persons, other than the applicant: (a) the person, firm or corporation alleged to be liable to the injured person or to his legal representative, (b) the hospital, or the attorney, if known, who on its behalf filed said notice of lien, (c) the injured person or his legal representative, (d) any insurance carrier, if known, which has insured such person, firm or corporation alleged to be liable, against such liability. If an action for damages on account of such injury or death is pending, service upon any party thereto may be made upon his or its attorney of record. Upon the return of such application and the determination of the validity of such lien, if it appears that there is a bona fide dispute as to the charges, an immediate hearing to determine the amount of the reasonable charges of such hospital for the treatment, care, and maintenance of such injured person at cost rates shall forthwith be ordered before the court and a jury, or, if a jury be waived, before the court or a referee. Upon such hearing the party making the application or the hospital may apply to the court for an order requiring the other to pay the reasonable expenses, not including attorneys' fees, incurred in making proof. For the purposes of this section, proof that the charges made by the hospital to the injured person for bed, board, routine nursing, ordinary dressings and drugs, x-ray services, laboratory tests, and other medical care or treatment do not exceed the charges made by the hospital for such services and supplies in the care of workmen's compensation patients shall be prima facie evidence of the reasonableness of such charges at cost rates in the care of the injured person. A copy of the order upon such application, with notice of entry, shall be served by the party making the application on every person, firm or corporation served with notice of the application, or upon his or its attorney appearing upon the application, and the sum fixed in said order shall constitute the extent of the lien provided in this section. 7. The provisions of this section to the contrary notwithstanding, the lien herein created shall be subject and subordinate to the lien of the amount recovered by verdict, report, decision, judgment or decree, settlement or compromise, of any attorney or attorneys retained by any such injured person or his legal representative in case of death, to prosecute his claim for damages for personal injuries or for the death of the injured person, having or acquiring by virtue of such retainer a lien on the cause of action of any such injured person, or his legal representative in case of death, or on the verdict, report, decision,judgment, decree made in, or any settlement or compromise of, any such action or claim for damages for personal injuries or for the death of such injured person; and, notwithstanding the provisions of this section, the lien created hereunder in no case shall be operative so as to create a priority or a precedence therefor as against any other lien, debt or claim in the administration of the estate of a decedent or the distribution of damages recovered or obtained on account of a wrongful act, neglect or default causing a decedent's death, and the amount of the debt or claim covered by such lien in such a case shall have the same position as to priority and be payable in the same manner and to the same extent as otherwise provided by law. 8. Execution upon any judgment obtained in an action based upon injuries for which a lien has been filed as herein provided shall be stayed until the lien has been satisfied or discharged in accordance with the provisions of this section. 9. Upon the order of any court of record having jurisdiction in the premises, any person, persons or corporation against whom a lien shall have been filed and served may deposit the amount of any settlement or judgment less the amount of any other liens or claims against such moneys superior to such hospital lien, with the county treasurer in the county in which the lien is filed, except, in a county within the city of New York where such deposit shall be made with the commissioner of finance of such city, and the person, persons or corporation so depositing shall be discharged from all liability in connection with such lien which lien shall attach to the fund so deposited. 10. Any such lien may be enforced by action against the person, persons or corporations claimed to be liable or against the fund deposited as hereinbefore provided in any court of record. 11. The filing of a notice of lien of a hospital under the provision of this section shall be valid for a period of ten years only. The validity of the filing may be extended for successive additional period of ten years each from the date of refiling, by filing in the proper county clerk's office, a copy of the original notice of lien within ninety days next preceding the expiration of each period, with a statement attached, signed by the lienor, showing the amount remaining to be paid thereon. Such copy, with statement attached, shall be filed and entered in the same manner as a notice of hospital lien filed and entered for the first time, and the county clerk shall be entitled to a like fee as upon the original filing. Every renewal of a hospital lien must be stamped or marked "renewal," and contain therein reference to the date of filing of the lien which it is desired to continue for a further period, and the date of filing of the latest previous renewal thereof. The county clerk is authorized to destroy any and all notices of liens of hospitals filed in his office pursuant to the provisions of this section, after the expiration of twelve years from the date of filing, and any and all indexes to such notices of lien, after the expiration of twenty-five years from the date of the last entry of a lien therein.