Medical liens are a collection problem in most cases, not a legal barrier. Both 42 O.S. Section 43 (hospital liens) and 42 O.S. Section 46 (physician and professional liens) contain attack points that most providers ignore and most adjusters exploit. Work through this checklist before you finalize any settlement. A defective lien that survives unchallenged costs your client money. One that fails can be eliminated or reduced to a fraction of the claimed amount.
The controlling strict construction principle: “Lien statutes are to be strictly confined within the ambit of the enactment that gave them birth.” Republic Bank & Trust Co. of Tulsa v. Bohmar Minerals, Inc., 1983 OK 29, 661 P.2d 521, 523. Apply that standard to every lien your client faces.
Quick Reference: Section 43 vs. Section 46
| Element | 42 O.S. Section 43 (Hospital) | 42 O.S. Section 46 (Physician / Professional) |
|---|---|---|
| Who can file | Hospitals; freestanding medical imaging facilities (MRI, CT, PET) in medically referred cases (2012 amendment) | Any physician or licensed Title 59 professional within the scope of practice |
| What attaches (Subsection A) | Any recovery or sum collected from the tortfeasor (liability coverage) | Any recovery from the tortfeasor |
| What attaches (Subsection B) | Monies payable by any insurer directly to the injured person | Monies payable by any insurer directly to the injured person |
| UM/UIM proceeds | Does not attach (Kratz v. Kratz, 1995 OK 63, 905 P.2d 753) | No specific holding; Kratz logic applies by analogy |
| Workers’ Compensation excluded | Yes, expressly | Yes, expressly (references Title 85A) |
| Inferior to an attorney’s lien | Yes, stated expressly in statute | Yes, stated expressly in statute |
| Filing/perfection requirement | None specified in Section 43 | Section 46(C): mechanic’s and materialman’s lien docket, county clerk, county of the physician’s principal office |
| Notice requirement | None specified in Section 43 | Registered or certified mail to tortfeasor, injured person, and injured person’s attorney (if name/address known) |
| Enforcement deadline | Not specified | 1 year after the physician becomes aware of the final judgment, settlement, or compromise |
Part 1: Hospital Liens Under 42 O.S. Section 43
Check 1: Is the Injury Covered by Workers’ Compensation?
Rule: Section 43 does not apply to Workers’ Compensation claims. Both Subsection A (lien against tortfeasor recovery) and Subsection B (direct insurer lien) expressly exclude WC claims.
Result: Lien fails as to WC recovery. If your case has both a WC component and a third-party tort claim, the Section 43 lien attaches to the tort recovery only. Do not allow the hospital to assert the lien against WC proceeds.
Check 2: Is the Provider Actually Eligible to File Under Section 43?
Rule: Section 43 covers hospitals. The 2012 amendment (Subsection C) extended it to freestanding medical diagnostic imaging facilities performing MRI, CT, or PET scans, but only in medically referred cases. Any other provider, including a standalone physician’s clinic, physical therapy center, chiropractor, or pharmacy, cannot use Section 43 and must instead use Section 46 with all of Section 46’s perfection requirements.
Result: Lien fails if the provider is not a hospital or a qualifying imaging facility. Check whether a freestanding imaging center can show a referral in the records; without that referral, Subsection C does not apply.
Check 3: Does the Lien Claim Attach to UM/UIM Proceeds?
Rule: Hospital liens under Section 43 do not attach to uninsured or underinsured motorist proceeds. This is settled under Kratz v. Kratz, 1995 OK 63, 905 P.2d 753, which expressly overruled prior contrary holdings. The lien attaches only to amounts collected from the tortfeasor’s liability carrier.
Result: Lien fails as to UM/UIM funds. Hospitals and their collection counsel routinely assert otherwise. Segregate the tortfeasor recovery from UM/UIM recovery in your settlement documentation and insist the lien applies to the liability recovery only.
Section 43A and 43B terminology: Practitioners often use “Section 43A” and “Section 43B” as shorthand for Subsections A and B of Section 43. There are no separately numbered statutes 43A or 43B. Both subsections are part of the single Section 43 statute.
Combined UM/UIM protection: 36 O.S. Section 3636 separately protects against insurer subrogation on UM/UIM proceeds. When your client has both a tort recovery and UM coverage, Kratz (blocking Section 43 liens on UM funds) and Section 3636 (blocking insurer subrogation on those same funds) together insulate the UM recovery from both hospital liens and carrier subrogation claims.
Check 4: Is Your Attorney’s Lien Asserted?
Rule: Both Section 43 and Section 46 expressly state that the medical lien is inferior to any lien or claim of any attorney representing the client. Under 5 O.S. Section 6, your attorney lien is superior to all medical liens as a matter of statutory priority.
Practical use: This is leverage, not elimination. The attorney’s fee comes off first. When a provider refuses to negotiate and threatens enforcement, remind them that the attorney’s fee is paid before their lien is touched. In cases where fees and costs consume a large portion of the fund, the provider may receive substantially less than they are claiming. Under Dallas v. GEICO Insurance Company, 2019 OK CIV APP 41, in a UM claim settled without a lawsuit, an attorney’s “lien claimed” endorsement on an interpleader check does not give the attorney lien priority over physician liens under Section 46(B). Assert your lien properly under 5 O.S. Section 6 before settlement to avoid this result.
Caution: A provider who sues to enforce a lien and prevails may be entitled to attorney fees. Do not bluff the enforcement argument unless you are prepared to defend it.
Part 2: Physician and Professional Liens Under 42 O.S. Section 46
Section 46 is where most of the attack opportunities are. Unlike Section 43, Section 46 has specific perfection requirements in Subsection C, and failure to meet any one of them leaves the lien defective. The strict construction rule from Bohmar Minerals applies fully: if the lien does not comply with each requirement, it is not entitled to enforcement.
Check 5: Filed in the Correct County?
Rule: Under Section 46(C), the lien must be filed in the county clerk’s office of the county where the physician or professional’s principal office is located. Not the county of injury. Not the county of the patient’s residence. Not the county of the treating facility, unless that facility is also the professional’s principal office.
Result: Lien fails if filed in the wrong county. Check the professional’s principal office address against the county of filing.
How to search: Lien filings are on the mechanic’s and materialman’s lien docket in the county clerk’s office. Tulsa County lien docket: call the Tulsa County Clerk at 918-596-5801, ask for land records. Oklahoma County lien records are searchable online through the county clerk’s website. For other counties, contact the county clerk directly.
Check 6: Filed on the Correct Docket?
Rule: Section 46(C) requires filing on the mechanic’s and materialman’s lien docket in the county clerk’s office. A lien document filed in district court pleadings, as a financing statement, or on any other docket is not a properly perfected Section 46 lien.
Result: Lien fails if filed in the wrong location or on the wrong docket. Verify against the M&M docket directly.
Check 7: Does the Filed Lien Contain All Required Content?
Rule: Section 46(C) requires the filed notice to contain each of the following:
- The amount claimed
- Identification of the insurance policy or policies against which the lien is asserted
- The name and address of the physician or professional person
- The name and address of the injured person
- The name and address of the person or firm against whom the claim is made
Business name attack: Section 46 uses the phrase “the name of the physician or professional person” and limits eligibility to professionals licensed under Title 59 of the Oklahoma Statutes. A lien filed solely under a corporate or business name, without identifying the individual licensed professional, is arguably defective under the strict construction principle from Bohmar Minerals. A clinic filing under its trade name rather than the treating physician’s individual name may have a defective lien. Experienced PI attorneys have noted the argument’s uncertainty, but Bohmar Minerals provides the doctrinal foundation.
Insurance policy identification attack: A lien that simply asserts a claim “against any available insurance” without identifying the specific policy or policies may not satisfy the statutory requirement.
Result: Lien fails if any required element is missing or materially defective.
Check 8: Was Notice Sent by Registered or Certified Mail?
Rule: Section 46(C) requires the physician or professional to send a copy of the filed notice by registered or certified mail to: (1) the tortfeasor, (2) your client, and (3) you as the attorney for the injured person, if your name and address were known.
Result: Lien fails if notice was sent by regular mail, fax, or email. Registered or certified mail is a statutory requirement. Failure to send notice to you as counsel when your representation was known is also a defect. Request the provider’s certified mail receipts and confirmation of mailing. If they cannot produce them, press the notice defect.
Check 9: Was the Lien Filed Before Payment to Your Client?
Rule: Section 46(C) requires that the lien be filed and notice given before payment of any monies to the injured person. A lien filed after the settlement check is issued may be defective as to that payment.
Result: Lien fails if filed after payment was made.
Check 10: Has the One-Year Enforcement Deadline Expired?
Rule: Under Section 46(D), any civil action to enforce a Section 46 lien must be brought within one year after the physician or professional becomes aware of the final judgment, settlement, or compromise.
Result: Lien is unenforceable if the one-year window has passed. The lien may still appear of record, but the provider has lost the right to bring an enforcement action. Watch for providers who filed liens early in a case, went dormant during litigation, and then reasserted the lien at settlement years later.
Section 3009.1 Intersection: The Filed Lien as a Trial Damages Tool
A filed lien is not only a collection instrument for the provider; it is also a damages tool for your client at trial.
Under 12 O.S. Section 3009.1, the default rule is that only the amount actually paid for medical services is admissible, not the amount billed. The lien exception changes that: if a medical provider has filed a lien for an amount in excess of the amount paid, the bills in excess of the paid amount, up to the amount of the lien, are also admissible at trial.
This means that before you attack a Section 46 lien on technical grounds, you should calculate what your client gains from eliminating the lien versus what your client loses in admissible damages at trial.
| Scenario | Admissible at Trial |
|---|---|
| Bills: $150,000. Paid: $60,000. No lien filed. | $60,000 only. |
| Bills: $150,000. Paid: $60,000. Provider filed a valid lien for $90,000. | $60,000 (paid) + $90,000 (lien exception) = $150,000. |
| Bills: $150,000. Paid: $60,000. Valid lien for $90,000; you successfully challenge and eliminate the lien. | $60,000 only. You eliminated the lien and the damages with it. |
Strategy: In many cases, the right move is not to eliminate the lien but to negotiate a reduced lien amount while preserving enough of it to maximize admissible damages. Negotiate the lien down to what is fair, but do not attack it out of existence when doing so undercuts your client’s recovery at trial. See the companion post on the paid-vs-incurred decision tree for the full Section 3009.1 framework.
Lien Reduction Strategy
Most liens get negotiated, not eliminated. The standard framework:
Baseline: request a 50% reduction. Standard reduction requests use this figure and commit to a proportional reduction in the attorney fee. The phrase “we will, of course, reduce our fees accordingly” is standard language in every reduction request and should appear in yours.
Escalate to 70% or higher when:
- Liability is disputed
- Causation is disputed (for example, the defense argues the injury predated the accident)
- Total medical bills exceed the settlement amount
In a disputed-liability or disputed-causation case, the reduction request should explain the specific dispute. A provider facing the realistic possibility of recovering nothing if the case fails is more willing to take 30 cents on the dollar than a provider who assumes full recovery. The narrative matters.
OHCA Medicaid liens are separate from Section 43 and Section 46 liens. OHCA liens are authorized by 63 O.S. Section 5051.1 and reduced under 12 O.S. Section 994.2(A)(1) based on procurement costs when the claim is disputed. The full OHCA reduction process is covered in the companion post on Medicare and Medicaid lien resolution.
Interpleader Defense
Defendants occasionally file motions to interplead a judgment or policy limits payment when multiple provider liens exist, arguing the court should apportion the funds. Challenge these motions. The existence of hospital or physician liens does not, without more, entitle the defendant to interplead the judgment. The judgment belongs to your client. Your attorney lien is superior to all medical liens. The defendant should pay your client directly and let the lien holders pursue their statutory remedies against your client or in a separate civil action.
When a liability carrier attempts to interplead policy limits before trial, consider carefully whether accepting interpleader jurisdiction compromises your client’s ability to pursue a full judgment. Review the policy terms before agreeing.
Workers’ Compensation Interaction
Both Section 43 and Section 46 exclude WC claims. Medical liens attach only to the third-party tort recovery, not to the WC award.
Timing warning: If you resolve the third-party PI case before the WC joint petition, the WC carrier may receive a credit for your client’s entire net recovery from the tort case. Resolve WC subrogation before or simultaneously with the third-party settlement. When documenting the WC subrogation waiver, ensure the agreement expressly covers both subrogation rights and any right to reimbursement from the third party. See Frank’s Tong Service v. Lara, 2013 OK CIV APP 22, on the WC waiver language requirement.
