PHANTOM DAMAGES IN PERSONAL INJURY CASES:

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1 PHANTOM DAMAGES IN PERSONAL INJURY CASES: The Legal Landscape Andrew S. Connell, Jr. Litchfield Cavo LLP 600 Corporate Drive, Suite 600 Fort Lauderdale, FL

2 MEDICARE AND MEDICAID If a plaintiff submits bills to Medicare or Medicaid, the plaintiff may only show the jury those amounts which were actually paid. Thyssenkrupp Elevator v. Lasky, 868 So.2d 547 (Fla. 4 th DCA 2003)

3 PRIVATE HEALTH INSURANCE Where a plaintiff submits bills through private health insurance, the plaintiff is entitled to show the jury, i.e. board, the entire amount billed by Plaintiff s health care providers, with no reduction at trial for write-offs or adjustments. Nationwide v. Harrell, 53 So.3d 1084 (Fla. 1 st DCA 2011). *** Florida law allows plaintiffs with private insurance to show the full amount billed by the medical provider to the jury. *** The jury never sees how much the medical care provider actually accepted from private insurance for the care. *** Write-offs and adjustments are not taken into account until after trial.

4 LETTERS OF PROTECTION (LOP) INTRODUCTION -There is no pre-trial nor post-trial reduction to any award of damages for past medical bills where medical services were provided under a letter of protection. See, Durse v Henn, 68 So.3d 271 (Fla. 4 th DCA 2011). -LOPs exist only in personal injury litigation and are agreements between plaintiffs, plaintiffs doctors, and plaintiffs lawyers whereby doctors are paid out of lawsuit proceeds. -LOPs are the most common form of payment arrangement in South Florida personal injury cases. -Even plaintiffs who have health insurance, Medicare or Medicaid often bypass that coverage in favor of LOPs.

5 LETTERS OF PROTECTION (LOP) PROBLEMS -Controversial and unnecessary procedures are often performed to artificially inflate bills for purposes of lawsuits. -Bills are often grossly inflated and incorrect billing codes are used to justify charges. -LOPs invite collusion between plaintiffs lawyers and doctors. -LOPs are being sold like commodities. -Current law makes it difficult to combat phantom damages billed under LOPs.

6 WAYS TO COMBAT PHANTOM DAMAGES -Treatment, while medically necessary, is not causally related to the accident at issue in the lawsuit -Treatment is unreasonable and not medically necessary -Medical billing is excessive and unreasonable

7 TREATMENT IS UNREASONABLE AND NOT MEDICALLY NECESSARY -Florida law requires plaintiffs to prove that their medical treatment is reasonable and necessary, but Stuart v Hertz has been expanded to prevent defendants from offering evidence that a plaintiff s treatment was unreasonable or unnecessary. -When defendants present such evidence, a Stuart instruction is given, which tells jury that defendant is liable for medical malpractice of plaintiff s treating physicians. -Florida courts now mandate Stuart instructions even where defendant does not argue that plaintiff s physician committed medical malpractice.

8 MEDICAL BILLING IS EXCESSIVE AND UNREASONABLE STUART ISSUES -Plaintiffs attorneys argue that Stuart should be construed to prevent defendants from arguing that plaintiff s medical bills are unreasonable or excessive. -Excerpt from a plaintiff s motion in limine: Defendant s physicians shall not testify with regard to the reasonableness of the bills. Dungan; Emory. The only issue for the jury is whether the treatment is reasonable from the plaintiff s perspective...

9 MEDICAL BILLING IS EXCESSIVE AND UNREASONABLE INSURANCE ISSUES -Florida law generally prohibits parties from mentioning insurance in the presence of the jury -What is the best way to educate jurors as to what charges are truly reasonable for medical treatment? -Current law unfairly limits medical expert testimony -A change in this area of the law is needed

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