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Quality Chiropractic6/14/2002
.R. at 922.
Thus, the law will not shield a patient who makes promises to pay a debt out of the proceeds of a personal injury claim. Why then, would we continue an exception to the general rules of assignment, which merely grants the assignee additional protection in ensuring that its debt is paid?
Attorneys representing personal injury clients commonly issue letters of protection to health care professionals to ensure that clients will receive necessary medical treatment. In re Moore, 2000-NMSC-019, 2 n.1. In Romero, our Supreme Court analyzed this arrangement under the principles of assignment law, describing an attorney who has signed an assignment agreement as an "obligor." Other courts perceive the attorney as acting as a "collecting agent" for the client. State Farm Mut. Ins. Co. v. St. Joseph's Hosp., 489 P.2d 837, 842 (Ariz. 1971) (en banc). In that view, the courts are not enforcing an assignment, but the direct promise of the attorney and client to pay the health care provider.
The rule prohibiting the assignment of personal injury claims is well rooted in the common law. There is no analogous rule prohibiting an accident victim from entering into contracts. The law cannot prevent parties from making bad decisions, and the law will enforce disadvantageous contracts. We recognize that assignments are a well-established means for creditors to protect their right to payment. However that protection has never been available through the assignment of personal injury claims, and we decline to extend that protection now. Clearly, if the courts began enforcing the assignment of personal injury claims, the use of such assignments would increase, because assignments would provide greater security than the injured tort victim's promise alone. We think the best course of action, unless and until the legislature acts, is to maintain the rule prohibiting the assignments of personal injury claims, while enforcing the promises of patients and their attorneys.
We also think there are fewer problems inherent in enforcing an attorney's agreement on behalf of a client. In general, attorneys will issue letters of protection only for necessary services related to the accident. But see Advance Fin. Co., Inc. v. Trustees of Clients' Sec. Trust Fund, 652 A.2d 660, 661 (Md. 1995) (involving attorneys who referred clients to lender who offered loans in exchange for assignments). In addition, when the victim's attorney handles these creditors, there is no concern about joinder. The tortfeasor writes one check, and it is up to the injured tort victim and the attorney to distribute the funds to the creditors. In addition, the actions of attorneys are regulated through the rules of professional conduct and the disciplinary board. Conceivably, the Supreme Court, in its regulatory role, could prohibit attorneys from issuing letters of protection if the practice became troublesome.
The Legislature, Not the Courts, Should Address the Assignment of Personal Injury Claims
Given this analysis, we do not accept Plaintiff's proposition that our prior case law would naturally lead to recognition of the assignment of personal injury claims or proceeds thereof. While the Motto and Seaboard Fire & Marine Insurance Co. courts used broad language addressing the right of assignment in personal injury cases, those cases involved only the rights of subrogation, and we do not read them as addressing the enforceability of assignments. We read those cases as creating an exception to the common law rule prohibiting the assignment of personal injury claims, not as abrogating the rule altogether. Similarly, we do not read Romero as authorizing the enforcement of health car
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