Articles Posted in Damages

The Florida Supreme Court has held that a plaintiff in a personal injury case cannot recover the gross amount of his medical bills when the plaintiff’s HMO has negotiated a lower rate of reimbursement with the health care providers. The decision is based in part on a Florida statute codifying the collateral source rule. Read the decision here.

The majority opinion and the accompanying concurring opinions do a nice job collecting the law on this subject.

Look for this issue to be raised more frequently in Tennessee.

Plaintiff’s vehicle was rear-ended by a vehicle driven by Defendant and Plaintiff was injured. Defendant successfully moved in limine for an order prohibiting Plaintiff from introducing evidence or arguing that he had paid his medical bills out of his own pocket. Defendant hired a doctor to evaluate the plaintiff; that doctor testified that Plaintiff’s “self interest for monetary gain” may be influencing Plaintiff’s complaints of pain.

The jury awarded $20,500, including $15,000 for medical expenses, an amount which was just slightly over one-half of the amount the Plaintiff had paid out of his own pocket for medical bills. The only issue on appeal was whether the trial judge should have excluded the evidence that the Plaintiff paid his own medical bills.

The California Court of Appeals reversed, saying that fact that the Plaintiff paid his own medical bills should have been admitted into evidence. Why? Because that fact helped demonstrate that the bills were reasonable and was helpful to the plaintiff in rebutting the defense that he was malingering. The Court found the exclusion of the evidence prejudicial, reversed the judgment and remanded the case for a new trial. Read the opinion here.

The defendant law firm was found to have negligently prepared a commercial litigation matter for trial. The plaintiff argued that it would have been able to recover punitive damages in the underlying case had it not been dismissed because of the law firm’s negligence and therefore should be able to recover them in the second case.

The Illinois Court of Appeals agreed, stating that “we believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney’s negligence. When, as in this case, a jury has determined that the plaintiff would have been entitled to punitive damages but for the negligence of the attorney, then such damages must be recoverable in order for the plaintiff to be made whole. We note that this result is consistent with the general principle in this state that ‘[a] legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.'” [citation omitted].

The court then affirmed a jury verdict including over $1,100,000 in punitive damges. Read the opinion by clicking here.

The Eighth Circuit Court of Appeals has limited Medicaid’s subrogation interest in a tort recovery.

Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her “right to any settlement, judgment or award” she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.

Medicaid and plaintiff agreed that plaintiff’s damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.

I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.

For example, look at this table:

Average Comprehensive Cost by Injury Severity, 2003

State Farm v. Campbell was feared to be a dramatic change in the law of punitive damages, but some courts have not taken the bait. In Willow Inn, Inc. v. Public Service Mutual Ins. Co. the United States Court of Appeals for the Third Circuit affirmed a punitive damage award of 75 times the compensatory damage award.

The plaintiff’s property was damaged by a tornado. The trial judge found that the insurer had engaged in obstructive tactics in settling the plaintiff’s property damage claim, which resulted in a two-year delay in the payment of $125,000.

The plaintiff’s bad faith claim resulted in a compensatory damage award of $2,000, punitive award of $150,000 and attorneys’ fees and costs of another $135,000+. The appellate court affirmed, finding the conduct of the insurer “reprehensible” and a combination of “purposefully indifferent actionand intentionally dilatory action.”

Medicare reimburses hospitals and other health care providers at a rate less than “charges,” i.e. the amount stated on the bill. The amount of the discount is often seventy percent or more. Should the medical expense recovery by a sucessful personal injury or wrongful death plaintiff be the amount of the charges or the discounted amount paid by Medicare?

The Supreme Court of Hawaii has ruled that the amount of the “charges” was the appropriate measure of recovery. In Bynum v. Mango the court said that “the tortfeasor is not entitled to reap the benefit of the plaintiff’s elgibility for public assistance or from the government’s economic clout in the health care market place.” Click here to read the opinion. The dissent may be read by clicking here.

Mississippi, North Carolina, South Carolina, and Wisconsin reach a similar result. California and Pennsylvania hold to the contrary. The citations to those opinions may be found in the Bynum decision.