Shook, Hardy & Bacon Partner Eileen Moss, Partner Ann Songer and Associate Paul Mose authored “Reducing Past and Future Medical Damages Through the Affordable Care Act,” which was published in DRI’s July 2016 issue of For the Defense. Moss is a member of DRI’s Commercial Litigation Committee, serving as the Pretrial Practice and Procedure SLG Vice Chair; Songer serves as Vice Chair of Shook’s Tort Section and is a member of the firm’s Executive Committee.
In summarizing key ACA provisions, the authors explain that the “ACA expands insurance coverage, often penalizes the failure to obtain insurance, and imposes restriction and various caps on health care costs.” Accordingly, the ACA itself can affect past and future medical expenses of injured plaintiffs. The ACA also affects defense lawyers’ arguments challenging inflated medical damages in tort cases.
Moss, Songer and Mose note that the collateral source rule, which “prohibits a party from introducing evidence that another party’s loss was offset or reduced by a collateral source of payment,” is the primary obstacle for establishing that the ACA decreases a plaintiff’s past medical expenses.
The authors suggest three strategies to challenging a plaintiff’s estimates of future damages.
First, the authors advise that “defense counsel should strictly follow any court order to refrain from mentioning the existence or potential savings from insurance to a jury.” Second, “courts in most states have only issued, at most, a handful of opinions on the tension between medical damage estimates and the ACA’s effect on medical expenses,” which allows for defendants to successfully create novel arguments. Finally, the authors note that “several practitioners have used the ACA’s effect successfully in settlement discussions to reduce the value of various tort cases.”
Moss, Songer and Mose conclude, “The intersection between medical damage estimates and the cost reductions for medical damages under the ACA is an area that will continue to develop over the next decade.”