On April 28th, the Florida Supreme Court confirmed that plaintiffs in personal injury lawsuits who had their past medical expenses satisfied by Medicare can only present those reduced amounts for the jury’s consideration. Elaine Dial v. Calusa Palms Master Assoc., Inc., No. SC21-43 (Fla. Apr. 28, 2022). It is expected that this will translate to the issuance of fewer intrusive non-party discovery requests to medical providers – at least where a patient was covered by Medicare.
Florida courts have long grappled with plaintiffs’ attorneys seeking to prove damages for medical expenses based on a provider’s billed charges rather than the actual reimbursement rates paid by the plaintiff’s insurer for such services. Defense attorneys claim these billed charges are “phantom damages,” because such damages are not what was incurred by the patient or paid to the provider. Plaintiffs’ attorneys argue, however, that presenting the billed charges are necessary to support future medical expenses – where actual coverage and reimbursement issues are less certain – and that any prejudice in relation to past expenses is resolved by a remittitur post-trial.
The Court reviewed this issue as it related to future medical expenses in Joerg v. State Farm Mutual Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015), allowing the plaintiff to present billed charges for the jury’s consideration where the plaintiff was covered by Medicare. The Court’s rationale rested on the uncertainty of future Medicare benefits, stating “it is absolutely speculative to attempt to calculate damage awards based on benefits that a plaintiff has not yet received and may never receive, should either the plaintiff’s eligibility or the benefits themselves become insufficient or cease to continue.” Id. at 1255.
Unlike Joerg, in Dial, the plaintiff had no future medical expenses, and had her prior medical expenses paid by Medicare. The trial court precluded the introduction of the billed charges as evidence, ultimately leading the Second District Court of Appeal to certify a question seeking clarification as to whether the Joerg decision applies to past medical expenses.
The Court agreed that Joerg does not apply to the introduction of evidence of Medicare benefits for past medical expenses.
This may positively impact medical providers who render care to a patient involved in a personal injury lawsuit – to the extent those charges were covered by Medicare. Often, medical providers are burdened with intrusive discovery by defendants’ counsel for information relating to reimbursement from other payors – even when those charges were satisfied by an insurer, like Medicare. The defendant’s justification behind the intrusive discovery is to “challenge the reasonableness of the medical provider’s charges.” This means they want evidence to refute the full billed charges presented for the jury’s consideration at trial. This ruling by the Supreme Court will alleviate the need for this discovery, at least where Medicare is involved, reducing the incidents of intrusive discovery and saving legal costs in protecting the disclosure of a medical provider’s trade secret.
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