Health Insurance Subrogation - Virginia Beach, Virginia Injury Lawyer Advice | Shapiro, Washburn & Sharp

Let’s say you get seriously injured in a VA or NC (or in another state) car accident that was caused by a careless/negligent driver and you get treated at a hospital or by various medical doctors. Your health insurance company may also pay your medical bills/expenses. You eventually get released from the hospital and treat with medical providers, later consult with a lawyer, and decide you need to pursue a personal injury claim against the responsible driver. Do not be surprised if your health insurance company attempts to obtain a portion, or all, of the medical bills/expenses it pays.  In some cases, other types of disability insurer’s also may assert a claim for reimbursement.

How does your insurance company do this? Through the “right of subrogation” or through written contractual provisions in your health insurance plan documents that call for reimbursement of any medical bills/expenses paid to you that are incurred due to a tort or third party’s fault.



An insurance carrier may reserve the “right of subrogation” in the event of a loss. This means that the company may choose to take action to recover the amount of a claim paid to a covered insured if the loss was caused by a third party. After expenses, the amount recovered must be divided proportionately with the insured person to cover any deductible for which the insured was responsible, and also the insurer may be required to share in the cost of your attorney’s fee under the theory that the attorney’s work was instrumental in getting both you and the other insurer recovery for the losses.

Is Their A Duty of Reimbursement Under Your Health Insurance Plan?

When the United States Congress passed a law called ERISA, it had a major effect on the right of health insurance plans to obtain reimbursement of medical expenses paid, where the reason the bills were incurred is due to a third party’s negligence. Before the passage of this act, the issue of reimbursement of health insurance plan medical expenses caused by “tortfeasors” (wrongdoers) was governed by contractual provisions and state laws.  The ERISA law changed that and permitted the right of reimbursement of such medical expenses for health plans that complied with a series of provisions of the new ERISA law. Currently, in injury cases that we handle, there are many health insurance plans that do comply with this act, and it requires your injury lawyer to obtain evidence from the health insurance plan that verifies the right of reimbursement at all.  However, not every health insurance plan is entitled to such reimbursement–players which are not formed under the ERISA act (traditional health insurers) often cannot recover the medical expenses paid.

This right of reimbursement is often mistakenly called a lien, but a lien arises under a law and this right of reimbursement is technically under the health insurance plan/contract in question. Typically, if there is a duty of reimbursement to a health insurance company, the health insurance company must at least share in the duty to reimburse the attorney who is instrumental in obtaining the recovery for the personal injury victim.  (Under the theory that the health insurer would probably be paying an attorney if they had brought the claim directly on their own behalf).

When a personal injury claim is filed on your behalf, the damages usually include pain and suffering– which can often involve recovery for permanent aspects of the injury, such as for disfigurement (scarring, amputation, paralysis) or disability (permanent loss of use or reduction in use of a body part which may or may not prevent you from working at your usual job or occupation), lost wages/lost earnings, and your total medical expenses (not just the co-pay, but for the total medical expenses). Even though your insurance company may have a right of reimbursement of a portion of your medical expenses incurred, there will typically still be a fairly substantial recovery for the injury victim even after payment of such reimbursement. We want you to be aware of how the law works in this regard so you are not surprised if you receive a letter from a health insurance company asking for information about the nature of your personal injury and how it arose. 

Day in and day out we represent injury victims who do have a duty to reimburse some part of medical expenses, but this in no way prevents us from obtaining an ample recovery for the large majority of our clients. And, in certain circumstances where there are tremendous medical expenses and there is inadequate insurance from the negligent party, there are legal methods to seek a reduction in a health insurance company reimbursement claim– different states have different provisions so please consult with one of our qualified injury attorneys if you have questions in this regard.