The Written Notice Requirement of the Health Care Services Lien Act

By Michael Kaczmarek

The Health Care Services Lien Act, 770 ILCS 23/10 et. seq., became effective July 1, 2003.  This Act repealed numerous medical care lien acts, and provided a single streamlined method for adjudicating the liens of all health care professionals and health care providers. 

Under the current law, the circuit court obtains jurisdiction over all interested lien holders when the petitioner serves them with written notice.  “ . . . (O)n petitioner’s written notice to all interested adverse parties, the circuit court shall adjudicate the rights of all interested parties and enforce their liens” 770 ILCS 23/30. 

Noteworthy is that there is no requirement that a summons be served upon the lien holder before their rights can be adjudicated.  The Legislature has used the word “summons” when it intended to provide jurisdiction by that method, see for example 735 ILCS 5/2-203 and 735 ILCS 5/2-205(b).  Had the Legislature intended to provide jurisdiction by a summons, it would have chosen the word summons based upon its choice of that method in numerous other statutes.  However, the Legislature instead chose to provide jurisdiction to adjudicate the rights of lien holders upon “written notice”. 

The purpose of the current Act is to provide a fast and inexpensive way of adjudicating health care service liens.  The Act is only used in cases where there is not sufficient money by way of settlement or judgment to satisfy all the creditors, and therefore an adjudication of the various competing rights must be made.  The Legislature expressly did not want petitioners to incur the additional expense of summonses.  For example, the Cook County sheriff now charges a flat $60.00 rate to serve anyone in Cook County.  If there were 5 lien holders, and the plaintiff was only netting $250.00 from a small settlement, the costs of service alone would exceed the plaintiff’s recovery.   Other costs such as alias summonses and process servers could consume additional funds, which would be better spent going to petitioners or satisfying lien holders.  In addition, the Legislature did not want to impose a delay of however many weeks or months it would take to obtain service, followed by another 30 day wait to see who would file their appearances.  Both lien holders and petitioners benefit by an inexpensive and expeditious resolution of the liens. 

The constitutional rights of due process are satisfied when there is a notice of hearing and an opportunity to be heard.  The Legislature could rationally determine that a medical lien holder, who had sufficient knowledge of the Act to perfect their lien under 770 ILCS 23/10, could reasonably be charged as having sufficient knowledge of the provision in the very same Act providing for jurisdiction upon written notice, 770 ILCS 23/30. “Legislative enactments enjoy a strong presumption of constitutionality . . .” In re S. G., 175 Ill. 2d 471, 486 (1997). 

Whether it is because of a lack of knowledge of the July 1, 2003 Act, or in reliance upon old and inapposite cases, some circuit court judges have erroneously insisted that medical lien holders be served with a summons.  This ruling ignores the express wording of the Act, and violates the primary rule of statutory construction.  “The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature . . . . In doing so, the court should look first to the statutory language, which is the best indication of the legislature’s intent . . . when the language is clear, it will be given effect without resort to other aids for construction . . .”  Kunkel v. Walton, 179 Ill. 2d 519, 533-534 (1998).  The statute clearly calls for jurisdiction upon written notice, and no ambiguity is present.  The statute must therefore be interpreted as it is written.  “There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports, and a court is not at liberty to depart from the plain language of a statute by reading into it exceptions, limitations or conditions that the legislature did not express.” Kunkel v. Walton, 179 Ill. 2d 519, 534 (1998).  

Various inapposite cases do not allow circuit court judges to ignore the Act, or to craft additional conditions to the Act which are contrary to the express wording of the Act. Both Fremarek v. John Hancock Mutual Life Insurance Company, 272 Ill. App. 3d 1067, 1070 (1^st Dist. 1995), and Augsburg v. Frank’s Car Wash Inc., 103 Ill. App. 3d 329, 333 (2^nd Dist. 1982) stand for the proposition that employer’s liens under Section 5(b) of the Workers’ Compensation Act cannot be adjudicated upon written notice, and the employers must be served with a summons before their liens can be adjudicated. Unlike the Health Care Services Lien Act which allows for jurisdiction upon written notice, there is no statutory provision providing for adjudication upon written notice in the Workers’ Compensation Act. Therefore, these cases clearly have no relevance.  Some ill-informed judges even cite Maurer v. Hackett, 284 Ill. App. 3d 1114 (1^st Dist. 1996) for the proposition that liens can only be adjudicated after jurisdiction is obtained by service of a summons.  Initially, it should be noted that Maurer is an unpublished opinion, and under Supreme Court Rule 23 has no precedential value.  Further, Maurer involved the issue of whether a Blue Cross medical payments subrogation lien could be adjudicated upon written notice, and the court held that it could not, since there was no law which provided that medical payments subrogation liens could be adjudicated upon written notice.  However, there is a statute which expressly provides that health care providers and health care professionals can have their liens adjudicated upon written notice, 770 ILCS 23/30. 

The Health Care Services Lien Act expressly vests the trial court with jurisdiction over the medical lien holders upon written notice.  This provision furthers the purpose of the Act in providing a fast and inexpensive adjudication of health care liens in cases of limited funds.  Legislative enactments enjoy a strong presumption of constitutionality, and trial courts cannot change the express wording of an unambiguous statute under the guise of construction.  Once it has been demonstrated that written notice has been given, the trial court can proceed to adjudicate the rights of the medical lien holders.