While Medicare is much better at responding to the issue of liens than it used to be, the length of time that it takes to get a final lien demand letter from Medicare puts plaintiffs, defendants and courts in a bad position, Le Gower said.
Courts want to get cases off their dockets, defendants prefer not to have their cases out there, and plaintiffs are reluctant to dismiss their cases even though they have received promises to pay, because sometimes there are still probate issues to deal with, Le Gower said.
Plaintiffs can get preliminary estimates from Medicare for how much the liens might be asserted, but defendants are not willing to cut checks to plaintiffs until Medicare has provided final demand letters, Le Gower said.
There is so much back-and-forth between mass tort plaintiffs and the Centers for Medicare & Medicaid Services that plaintiffs lawyers on their own, or plaintiffs and defendants together, regularly retain lien administrators to do negotiations with the government.
Matt Garretson, an attorney and founding partner of claim administrator and lien administrator Garretson Resolution Group, which has worked in the Avandia litigation, the World Trade Center first-responder litigation and the BP oil spill litigation, said that when defendants became responsible parties for liens, the resolution of the liens became a "condition precedent" before plaintiffs can get paid.
Orran Brown, a principal with BrownGreer, a Richmond, Va., law firm that specializes in mass claims resolution and claims administration, said liens also can be asserted for child support, private heath insurance companies, litigation lending companies like the one McCoy borrowed from, and unpaid legal fees, Brown said.
"Anything that you can imagine that creates a credit obligation comes up when there's a pot of money to be had," Brown said.
"It gums up things for a long time ... it does delay payments to claimants if you're waiting on the government to tell you" how much liens are, Brown said.
Payment also can be gummed up if there are any questions about who is the right person to receive payments for the settlement, or about who is the authorized representative on behalf of a minor or a decedent, Brown said.
A big change regarding liens is that some law firms are no longer waiting until they have settlements inked with defendants on behalf of their clients to start the lien research process, Garretson said, so that by the time the settlement finish line is approaching it will just be a matter of paperwork to get the liens resolved in 120 days after settlements are struck.