Paid or Incurred and the Collateral Source Rule Across the Country

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1 Paid or Incurred and the Collateral Source Rule Across the Country Paid or Incurred and the Collateral Source Rule Across the Country Larry D. Warren Nathan L. Mechler I. Introduction In the realm of civil litigation, specifically with regards to collecting past medical expenses that have been paid or incurred, tort reform and healthcare changes have created considerable differences from state to state. The question that presents itself is as follows: Can the claimant recover the past medical expenses that the claimant actually paid or the amount that the claimant incurred? 1 Although the question appears simple in nature, it has generated scholarly debates across the country presenting viable arguments for both ends of the spectrum. As a result, state legislatures and courts have established a variety of answers to this simple question. This Article will first discuss tort reform and healthcare changes, followed by a discussion of the collateral source rule and its variations from state to state as demonstrated through case law and statutory provisions. This Article will then discuss the arguments from both the plaintiffs and defendants perspectives. Submitted by the authors on behalf of the FDCC Transportation Section. 1 For purposes of this Article, and unless otherwise noted, the amount incurred will refer to the bill actually charged by the medical provider to the injured party. It is understood that what is incurred is interpreted differently in many states; hence, varying laws exist throughout the country on this issue. 203

2 FDCC Quarterly/Spring 2009 Larry D. Warren is the President and a shareholder in the law firm of Ball & Weed, P.C., San Antonio, Texas. Mr. Warren graduated with distinction from St. Mary s University Law School in He works with clients on matters relating to transportation, tractor/trailer accidents, construction matters and commercial litigation. He is Board Certified in Personal Injury Law, Texas Board of Legal Specialization, 2003 and a Fellow in the American College of Trial Attorneys. Mr. Warren is a member of the State Bar of Texas, San Antonio Bar Association, Texas Association of Defense Counsel, Defense Counsel of San Antonio, Defense Research Institute, Inc., Federation of Defense and Corporate Counsel, Trucking Industry Defense Association, The John M. Harlan Honor Society, and ALFA International, where he was the Chairman of the Transportation Group and a current member of Insurance Practice Group and Retail Practice Group. Recently, Mr. Warren received the 2009 Woodrow B. Seals Laity Award, given by the Perkins School of Theology at Southern Methodist University in Dallas. The Seals Award is given annually to a layperson who embodies the Christian faith and commitment of service to Christ as exemplified by Judge Woodrow B. Seals. II. Tort Reform and Healthcare Changes Tort reform influenced every state in one form or another over the last several decades. 2 Consistent with tort reform, transformations in federal healthcare programs, such as Medicare and Medicaid, and managed care systems, commonly referred to as HMOs or PPOs, have completely altered the healthcare industry in the United States. Originally, health insurance was based purely upon indemnity, i.e., a fee-for-service system. 3 Such a system allowed 2 See In re E. & S. Dist. Asbestos Litig., 772 F. Supp. 1380, 1384 (E.D. & S.D.N.Y. 1991) (commenting on the statutory reform which swept the country in the 1980s); Jennifer Howard, Alabama s New Collateral Source Rule: Observations from the Plaintiff s Perspective, 32 Cumb. L. Rev. 573, 575 (2002). 3 See Thomas C. Riney, Recovery of Medical Expenses Before and After House Bill 4 The Defense Perspective, in State Bar of Texas 12th Annual Advanced Medical Malpractice Course, ch. 16.2, p. 3 (March 17-18, 2005); Jaime A. Saenz, Discussion On Paid or Incurred : Defense Perspective, in State Bar of Texas 23rd Annual Advanced Personal Injury Law Course, Chapter 2.1, p. 1 (August 1-3, 2007). 204

3 Paid or Incurred and the Collateral Source Rule Across the Country Nathan L. Mechler is an associate at Ball & Weed, P.C., San Antonio, Texas. Mr. Mechler is a magna cum laude graduate of St. Mary s University Law School (2005) and a member of the State Bar of Texas. He practices in the areas of products liability, commercial litigation, transportation, construction and general civil litigation. for very little, if any, reduction of the amount billed by the medical provider. 4 Conversely, the new system allows for significant discounts, adjustments, and write-offs of the amount billed by these same providers. 5 Currently, federal health programs and managed care entities have established agreements with medical providers; those agreements allow substantial discounts of the amount billed, and in return, the medical provider is able to obtain a preferred status. 6 The caveat here, which is the crux for many of the arguments on this topic, is that the medical provider is barred, by law or contract, from pursuing the discounted or adjusted portion. 7 In other words, the amount paid pursuant to law or agreement is all the provider will ever receive for the services rendered. The adjusted portion caused the issue at hand and raised many questions. An example of the implications of this issue is evident in Terrell v. Nanda. 8 In Terrell, the medical providers bills totaled over $1,000,000; however, Medicaid paid only $164, Thus, the medical providers wrote off the difference between the amount billed and the amount that Medicaid paid $946, The issue was whether the plaintiff should be able to obtain an award for the entire bill of more than $1,000,000 or whether the plaintiff s recovery 4 Saenz, supra note 3, at 1. 5 Id. See also U.S. v. Mercy Health Servs., 902 F. Supp. 968, 972 (N.D. Iowa 1995). 6 Id. See also U.S. v. Mercy Health Servs., 902 F. Supp. 968, 972 (N.D. Iowa 1995). 7 Id.; see also Suhor v. Lagasse, 770 So. 2d 422, (La. Ct. App. 2000). 8 Terrell v. Nanda, 759 So. 2d 1026 (La. Ct. App. 2000). 9 Id. at Id. 205

4 FDCC Quarterly/Spring 2009 would be limited to the actual amount paid. 11 That issue raises related, interesting issues: Is the adjustment considered to be paid, incurred, or neither? Is the adjustment a collateral source? Courts and legislatures are wrestling with these issues. III. Collateral Source Rule Under the collateral source rule, a plaintiff s recovery is not diminished by payments provided to the plaintiff if the payments are wholly independent of the tortfeasor. 12 This rule is considered to serve both as a rule of evidence and as a rule of damages. 13 As a rule of evidence, the collateral source rule bars the admission of evidence that the plaintiff received benefits from a third party as compensation for the loss. 14 As a rule of damages, this doctrine prevents the trier of fact from reducing the plaintiff s damage amount by the amount of collateral benefits the plaintiff received from a third party. 15 Accordingly, the traditional form of the rule has excluded from evidence and prevented the subtraction of benefits received through health insurance, federal medical programs, worker s compensation payments, welfare benefits, and even gratuitous benefits. 16 At some point in time, every state adopted the collateral source rule in its traditional form. 17 Now the modifications from state to state are vast. IV. Versions of the Rule Many versions of the collateral source rule are used throughout the United States, from the traditional form of the rule to various modifications. The modifications that exist vary widely. 11 Id. at The Terrell court ultimately determined that the plaintiffs were not permitted to recover as damages the amounts written-off or contractually adjusted. Id. 12 The doctrine that if an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deduced from the damages that the tortfeasor must pay. Black s Law Dictionary (8th ed. 2004). 13 Arthur v. Catour, 833 N.E.2d 847, 854 (Ill. 2005); Howard, supra note 2, at 573; see Saenz, supra note 3, at Saenz, supra note 3, at Id. 16 Howard, supra note 2, at Deborah Van Meter, Note, Louisiana s Collateral Source Rule: Time for a Change?, 32 Loy. L. Rev. 978, (1987). 206

5 Paid or Incurred and the Collateral Source Rule Across the Country Despite healthcare and tort reform, many states continue to use the traditional form of the rule. In this form, the states refuse to allow any evidence of payment by a collateral source. 18 The inadmissible evidence includes the adjustment or reduction to the bill. 19 As a result, a plaintiff is entitled to collect the all medical expenses billed, or the amount of expenses incurred, so long as the charges were reasonable and necessary. Other states have modified the collateral source rule and are on the opposite end of the spectrum. In those states, because of statutory amendments, the plaintiffs can collect only the amount of their medical expenses that was actually paid. 20 Several of the states that prohibit recovery of the adjustment make the actual amount charged for the services inadmissible. 21 Still other states chose not to modify the collateral source rule to such an extreme, but made some modifications in response to tort and healthcare reform. For example, some states modified the rule from its traditional form, but only in respect to certain suits, such 18 See Miss. Code Ann (West 2002); N.C. Gen. Stat (2003); Or. Rev. Stat (2007); Olariu v. Marrero, 549 S.E.2d 121, 123 (Ga. Ct. App. 2001); Bynum v. Magno, 101 P.3d 1149, 1158 (Haw. 2004); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, (Miss. 2001); Williamson v. Odyssey House, Inc., No. CV JD, 2000 U.S. Dist. LEXIS (N.H. Dist. Ct. 2000); Aragon v. Brown, 603 P.2d 1103, (N.M. Ct. App. 1979); Fallis v. Watauga Med. Ctr., Inc., 510 S.E.2d 199, 205 (N.C. Ct. App. 1999); Haselden v. Davis, 579 S.E.2d 293, (S.C. 2003); Hall v. Miller, 465 A.2d 222, 228 (Vt. 1983); Acuar v. Letourneau, 531 S.E.2d 316, 329 (Va. 2000); Wheatland Irrigation Dist. v. McGuire, 562 P.2d 287, 301 (Wyo. 1977) (not directly on point but recognizes the long standing foundation of the collateral source rule). 19 Supra notes Ala. Code (2000); Alaska Stat (2008); Ark. Code Ann (2003); Colo. Rev. Stat. Ann (West 2005); Conn. Gen. Stat. Ann a (West 2005); Fla. Stat. Ann (West 2007); Idaho Code Ann (2001); Ind. Code Ann (West 2005); Iowa Code Ann (West 2006); Mich. Comp. Laws Ann (West 2005); Minn. Stat. Ann (West 2004); Mo. Rev. Stat (2005); Mont. Code Ann (2007); Neb. Rev. Stat (2008); N.J. Stat. Ann. 2A:15-97 (West 2000); N.Y. C.P.L.R. 4545(c) (McKinney 2001); Tex. Civ. Prac. & Rem. Code Ann (Vernon 2004); Marsh v. Green, 782 So. 2d 223, 230 (Ala. 2000); Hanif v. Housing Authority of Yolo County, 246 Cal. Rptr. 192, 195 (Ct. App. 1988); Jones v. Kramer, 838 A.2d 170, 173 (Conn. 2004); Bates v. Hogg, 921 P.2d 249, (Kan. Ct. App. 1996); Davis v. Management & Training Corp. Ctrs., No RDR, 2001 WL (D. Kan. May 30, 2001) (mem. op.); Suhor v. Lagasse, 770 So. 2d 422, 427 (La. Ct. App. 2000); Robinson v. Bates, 828 N.E.2d 657, (Ohio Ct. App. 2005); Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786, (Pa. 2001); Mills v. Fletcher, 229 S.W.3d 765, (Tex. App. 2007); Goryews v. Murphy Exploration & Prod. Co., Civ. Act. No. V-06-01, 2007 U.S. Dist. LEXIS (S.D. Tex. Aug. 8, 2007); Gore v. Faye, 253 S.W.3d 785 (Tex. App. 2008). 21 See, e.g., Bates, 921 P.2d at ; Suhor, 770 So. 2d at

6 FDCC Quarterly/Spring 2009 as medical malpractice. 22 Others provide the jury with all relevant evidence in determining the reasonable amount of medical expenses, including the bill charged for the services, the amount paid, and the discount or adjustment. 23 Some states modified the collateral source rule in other, less extreme variations. They have required the reduction or discount to be presented to the judge so that the award could be adjusted after the trier of fact rendered its verdict, 24 and they have enacted procedural safeguards that limit the reduction 25 or disallow any award to be reduced if a subrogation lien exists. 26 Despite whether a state has retained the traditional form of the rule or adopted one of the numerous modified versions, the plaintiffs and defendants arguments remain nearly identical across the country. V. Plaintiffs Perspectives Plaintiffs advocate maintaining the traditional form of the collateral source rule, which makes sense, given that the traditional rule has the potential to result in the largest award to the plaintiff. Because the traditional collateral source rule bars the defendant from introduc- 22 See Ariz. Rev. Stat. Ann (2008); Del. Code Ann. tit. 18, 6862 (1999); 735 Ill. Comp. Stat. 5/ (2008); Me. Rev. Stat. Ann. tit. 24, 2906 (2000); Md. Code Ann., Cts. & Jud. Proc. 3-2A- 06 (West 1998); Mass. Gen. Laws ch. 231, 60G (2000); Nev. Rev. Stat. Ann. 616C.215 (West 2008); N.D. Cent. Code (2001); Okla. Stat. tit. 63, D (2003); R.I. Gen. Laws (2007); S.D. Codified Laws (1987); Tenn. Code Ann (2000); Utah Code Ann (2001); Wash. Rev. Code (2006); W. Va. Code 55-7B-9a (2003); Wis. Stat. Ann (West 2007). 23 See Ala. Code (1993); Marsh v. Green, 782 So. 2d 223 (Ala. 2000); Robinson v. Bates, 857 N.E.2d 1195 (Ohio 2006). 24 See, e.g., Alaska Stat (2008); Colo. Rev. Stat. Ann (West 2008); Conn. Gen. Stat a (2007); Fla. Stat. Ann (West 1999); Idaho Code Ann (1998); 735 Ill. Comp. Stat. 5/ (1992); Me. Rev. Stat. Ann. tit. 24, 2906 (2000); Md. Code Ann., Cts. & Jud. Proc. 3-2A-06 (West 1998); Mass. Gen. Laws ch. 231, 60G (2000); Mich. Comp. Laws (2000); Minn. Stat (2008); Mont. Code Ann (2000); Neb. Rev. Stat (1998); N.J. Stat. Ann. 2A:15-97 (West 2000); N.Y. C.P.L.R (McKinney 2002); N.D. Cent. Code (2001); Utah Code Ann (2001). 25 See, e.g., Conn. Gen. Stat a (2007). 26 See Alaska Stat (2008); Conn. Gen. Stat a (2007); Fla. Stat. Ann (West 1999); Idaho Code Ann (1998); 735 Ill. Comp. Stat. 5/ (1992); Me. Rev. Stat. Ann. tit. 24, 2906 (2000); Md. Code Ann., Cts. & Jud. Proc. 3-2A-06 (West 1998); Mich. Comp. Laws (2000); Minn. Stat (2008); Mont. Code Ann (2000); N.Y. C.P.L.R (McKinney 2002); N.D. Cent. Code (2001); S.D. Codified Laws (1987); Utah Code Ann (2001). 208

7 Paid or Incurred and the Collateral Source Rule Across the Country ing any evidence that the plaintiff was insured or that the amount billed to the plaintiff was actually reduced, applying the traditional rule can result in an award equal to the charged medical expenses, not the expenses actually paid. In support of the traditional rule, plaintiffs cite the intent underlying that rule: the wrongdoer should not be rewarded for the injured party s prudence in obtaining insurance. 27 In essence, plaintiffs argue that the tortfeasor should be held fully accountable for his actions rather than having that accountability reduced because of a plaintiff s foresight in procuring insurance coverage. 28 Plaintiffs assert that modifying the traditional collateral source rule would abolish a longstanding precedent that has consistently advanced numerous public policies. 29 They assert that the traditional form of the rule promotes public policies such as (1) encouraging citizens to be responsible and purchase health insurance; (2) allowing the citizen to reap the entire benefit of the bargain though procurement of health insurance; and (3) deterring the wrongdoer from or holding the wrongdoer accountable for the tortious conduct. 30 Finally, plaintiffs assert that the traditional rule is the superior rule because the defendant would benefit from a rule permitting the fact-finder to reduce an award because the plaintiff received collateral benefits. Some courts have agreed, recognizing that allowing the collateral benefits to reduce the damage award bestows a windfall upon the defendant. 31 These judicial opinions recognize that the value of the collateral benefit passes to the defendant if such a deduction is permitted. 32 Perhaps the most fitting argument concerning any windfall is answered in a rhetorical question: If a windfall does in fact exist, should the windfall inure upon the victim or the tortfeasor? 27 Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex. 1980), cert. denied, 449 U.S (1980); Leitinger v. DBart, Inc., 736 N.W.2d 1, (Wis. 2007). See generally, Jim M. Purdue, Paid or Incurred Medical Expense Recoveries, State Bar of Texas 23 rd Annual Advanced Personal Injury Law Course, Chapter 2.2, p. 3-4 (August 1-3, 2007). 28 Mills, 229 S.W.3d at 772 (Stone, J., dissenting). 29 Robinson, 857 N.E.3d 17; Arthur v. Catour, 833 N.E.2d 847, 852 (Ill. 2005); Mills v. Fletcher, 229 S.W.3d 765, (Tex. App. 2007) (Stone, J., dissenting). 30 Id. at ; Suhor v. Lagasse, 770 So. 2d 422, 424 (La. Ct. App. 2000); see Saenz, supra note 3, at Samsel v. Allstate Ins. Co., 59 P.3d 281, (Ariz. 2002); Acuar v. Letourneau, 531 S.E.2d 316, 329 (Va. 2000). 32 Samsel, 59 P.3d at ; Acuar, 531 S.E.2d at

8 FDCC Quarterly/Spring 2009 VI. Defendants Perspectives Defendants make three main arguments against applying the traditional collateral source rule. First, they assert that if the traditional rule is not modified, the discounts now applied to many plaintiffs medical expenses will now permit double recovery. As a result of that argument, some state statutes have modified the traditional form of the collateral source rule to create an exception in regards to the discounts or adjustments at issue. 33 In response to the defendants suggestion that the injured party may receive a double recovery under the traditional form of the rule, plaintiffs contend that no such double recovery is afforded. 34 Some courts agreed, concluding that the prudent person who takes the opportunity to obtain insurance should be afforded every benefit of the bargain his contract allows. 35 Part of this benefit is the discount that the federal programs and managed care entities are able to negotiate with the healthcare providers. 36 In addition, subrogation rights must be accounted for, which would often prevent a plaintiff from realizing a double recovery. 37 Furthermore, the amount awarded is substantially reduced by the large percentages now collected from the claimant for attorney s fees. 38 Second, defendants assert that the collateral source rule does not apply to billing adjustments or discounts. 39 Namely, the rule establishes that the plaintiff s recovery is not to be diminished by payments made from a third party independent of the tortfeasor. 40 The adjustment or discount does not represent a payment made by a third party, but merely exists under a contract between the medical provider and the insurer. 41 Because the deduction 33 See generally supra note See Purdue, supra note 27, at 3-4; Howard, supra note 2, at Bynum v. Magno, 101 P.3d 1149, (Haw. 2004); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, 619 (Miss. 2001); Haselden v. Davis, 579 S.E.2d 293, 294 (S.C. 2003); Texarkana Mem l Hosp., Inc. v. Murdock, 903 S.W.2d 868, 874 (Tex. App. 1995), reversed on other grounds, 946 S.W.2d 836 (Tex. 1997). 36 Arthur, 833 N.E.2d at 854; Bynum, 101P.3d at See Howard, supra note 2, at 574 (citing Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala. 1990), overruled by Ex Parte State Farm Fire & Cas. Co., 764 So. 2d 543 (Ala. 2000)). 38 See Howard, supra note 2, at 574 (citing Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61 (Cal. 1970)). 39 Suhor v. Lagasse, 770 So. 2d 422, (La. Ct. App. 2000); Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786, 790 (Pa. 2001). 40 See supra notes 12 and Id. 210

9 Paid or Incurred and the Collateral Source Rule Across the Country does not represent a payment from a third party on behalf of the plaintiff, and it is not paid by anyone for that matter, allowing the deduction does not implicate the collateral source rule. 42 Again, the collateral source rule is one of damages and evidence. Regarding the rule of damages, the collateral source rule prevents the court from deducting medical payments or collateral benefit made on behalf of the insured from the damage award. 43 The analysis from the second argument is used here: allowing the court to reduce the damage award because of a discount or adjustment that was never paid on the plaintiff s behalf and that will never be owed by the plaintiff is not a reduction of any benefit paid on behalf of a collateral source. 44 The defendant s final assertion is similar to the second, in that defendants argue that the collateral source rule does not apply to the adjustment, but this third approach recognizes that the purpose of the rule must be upheld in limiting the jury s knowledge of any payments from the collateral source. 45 This final assertion takes the second interpretation s argument a step further and addresses the collateral source rule as a rule of evidence. Under this analysis, the defendant is precluded from admitting evidence before the trier of fact regarding the collateral source. 46 Some states have explicitly confronted this matter, requiring any evidence of payments by the collateral sources to be presented to the judge for a reduction, but only after the trier of fact has rendered its verdict. 47 The three interpretations of the collateral source rule expressed above are supported by the argument that allowing a plaintiff to collect the adjustment to his or her bills defies the meaning of compensatory damages. Compensatory damages are defined as noneconomic 42 Suhor, 770 So. 2d at ; Moorhead, 765 A.2d at 796; see Saenz, supra note 3, at Saenz, supra note 3, at Suhor, 770 So. 2d at ; Saenz, supra note 3, at Saenz, supra note 3, at See Saenz, supra note 3, at 5 ( A jury does not have to be told that the injured person, an insurer, or some other third party paid a portion of the injured person s medical expenses. ). 47 See supra note 24. Another suggested method to circumvent the evidentiary form of the rule is to allow the admission of medical expense evidence which shows the discounts, but does not show the actual payments made by the collateral source. Saenz, supra note 3, at 5. An easier and more economical approach perhaps would be for the parties to draft stipulations of the discount to be presented to the trier of fact. Id. The stipulations would require no mentioning of the payments actually made by the collateral source. 211

10 FDCC Quarterly/Spring 2009 damages intended to compensate a claimant for actual economic or pecuniary loss. 48 The intent of awarding compensatory damages is to place the injured party in a position he would have been had the tort not been committed. 49 In light of what has been paid and incurred, defendants point to the meaning of incur, which is to become liable for. 50 The discount, which will never be owed by the insured and for which there is no right to subrogation under law or contract, is not a past expense that has been actually incurred by the plaintiff. 51 As a result, defendants argue that allowing the plaintiff to collect the adjustment defies the very meaning of compensatory damages. 52 Furthermore, to allow the claimant such an award bestows a windfall to the plaintiff in the form of a double recovery. 53 Numerous courts have recognized and upheld this argument. 54 VII. Conclusion Because healthcare reform enabled federal health programs and managed care entities to pay pennies on the dollar for medical services, these reforms have major implications on the amount recoverable for paid or incurred past medical expenses. While the future of this issue from state to state cannot be predicted, well-reasoned and impassioned arguments from both the plaintiffs and defendants viewpoints will not end any time soon. 48 Hanif v. Housing Auth. of Yolo County, 246 Cal. Rptr. 192, (Ct. App. 1988); Thomas v. Barton Lodge II, Ltd., 174 F.3d 636 (5th Cir. 1999); McAmis v. Wallace, 980 F. Supp. 181 (W.D. Va. 1997); Black s Law Dictionary 416 (8th ed. 2004). 49 Suhor, 770 So. 2d at 427 (concluding that the purpose of compensatory damages is to place the plaintiff as nearly as possible in a position to just prior to the tort). 50 Black s Law Dictionary 782 (8th ed. 2004). 51 Wildermuth v. Staton, No. Civ. A CM, 2002 WL , *8 (D. Kan. Apr. 29, 2002); Suhor, 770 So. 2d at ; Moorhead, 765 A.2d at 790; McAmis, 980 F. Supp. at See Moorhead, 765 A.2d at 790 (allowing the adjustment would provide [plaintiff] with a windfall and would violate fundamental tenets of just compensation ). 53 Id. 54 Suhor, 770 So.2d at 427; Moorhead, 765 A.2d at

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