What impact will the Patient Protection and Affordable Care Act (ACA) have on future medical expenses in personal injury cases?
This question, perhaps the most important ACA-related issue for personal injury stakeholders, including settlement planners and structured settlement professionals, is addressed by plaintiff attorney Seth Cardeli in an article featured in the May 2014 issue of the AAJ's Trial Magazine titled "Thwart the Assault on Future Medical Expenses".
S2KM summarizes Cardeli's article in this blog post - the first of a series about how the ACA impacts future medical expenses in personal injury cases.
Cardeli labels as "speculative and misleading" current defense efforts to convince courts the ACA changed how courts should calculate future medical expenses thereby transforming the ACA into "the latest tort 'reform' vehicle." Their efforts should fail, Cardeli maintains, because they wrongly attempt to circumvent states' collateral source and subrogation rules.
Because of the ACA's individual mandate, some defendants argue, incorrectly according to Cardeli, that plaintiffs' recoveries for future medical expenses should now be restricted to the ACA’s annual maximum out-of-pocket limit plus the current cost of purchasing medical insurance.
Cardeli highlights attempts by defendants to effectuate their strategy by filing motions in limine which, Cardeli maintains, apply a lower judicial standard than post verdict motions.
Instead of defendants having to prove future medical benefits are reasonably certain to by paid by ACA insurance policies, Cardeli characterizes motions in limine as merely requiring a judge to decide whether the probative value of such evidence is outweighed by the unfair prejudice such evidence will cause defendants.
The result: in some cases, according to Cardeli, juries may reduce the amount of recoverable future damages while still permitting the collateral source provider to seek reimbursement from the plaintiff.
Plaintiff Counter Argument
Cardeli's article cites cases from several state venues where courts have rejected defendants' attempts to limit plaintiff evidence of future medical expenses or to present their own evidence of ACA-related health care coverage. He urges plaintiff attorneys to aggressively oppose all related motions in limine by arguing:
- The effect of the ACA on a plaintiff's recoverable future medical expenses is speculative.
- Evidence of collateral sources is prejudicial to personal injury plaintiffs.
- Tortfeasors should bear the risk that any future medical expenses will not be covered by medical insurance.
Of these three proposed counter arguments, the first (speculative) appears the strongest and most widely applicable among various state venues. Cardeli supports his first proposed counter argument as follows:
- The ACA does not assure that all components of a plaintiff's life care plan will be covered by future health insurance.
- In fact, ACA health insurance is not required to cover many such life care plan costs which are not subject to the maximum ACA out-of-pocket limit.
- ACA insurance plans are not required to count co-payments, deductibles, coinsurance payments and/or out-of-network payments toward the maximum out-of-pocket limit.
- The ACA does not require health insurers to cover long-term facility care or in-home skilled nursing care.
- U.S. courts historically have refused a collateral source reduction when future benefits depend on government action or inaction.
Cardeli's second (prejudice) and third (risk) counter arguments, however, are not as convincing - or at least not as complete. They depend not only on the provisions of the ACA, but also on how the ACA, tort reform, and subrogation impact state-specific collateral source rules.
Fortunately and helpfully, Cardeli's Trial Magazine article footnotes valuable law review articles relevant to these issues which S2KM will summarize in subsequent blog posts.
For S2KM's complete reporting about the ACA, see the structured settlement wiki.