Key Points:
Evidence of past medical bill charges that have been paid, adjusted, or written off are not relevant.
Florida case law establishes that Medicare/Medicaid recipients are precluded from showing evidence of medical damages above the Medicare/Medicaid subrogation/lien amount.
The principles for limiting evidence of medical damages that have been paid, adjusted, or written off should apply regardless of the source of payment.
It is the eve of trial, and evidentiary issues are being evaluated. For attorneys trying personal injury cases, one issue that must be evaluated involves the damages that the plaintiff will be able to present to the jury. Plaintiff’s counsel will inevitably try to present every single last penny charged by medical providers, irrespective of any payments, adjustments, or write-offs. On the other hand, defense counsel is undoubtedly crunching the numbers, trying to determine what bills should be excluded. Everyone knows that the decisions on this issue will have a significant impact on the verdict. Everyone understands what is on the line.
Until recently, Florida plaintiffs essentially had free reign to present to the jury medical bills and charges that were already paid, already adjusted, or even written off. In such a scenario, a jury would award a verdict based on numbers that were more than the amount paid by the insurer, Medicare/Medicaid, or any collateral source, and the verdict amount would be set-off after the fact. However, in 2022, the Florida Supreme Court’s decision in Dial v. Calusa Palms Master Ass’n, Inc., 337 So. 3d 1229, 1232 (Fla. 2022) changed the playing field. The court established that it is proper to prevent the plaintiff from presenting the full charges for past medical expenses that Medicare already paid or were adjusted or written off based on a Medicare/Medicaid payment.
The holding in Dial is founded upon the principle that:
[T]he touchstone for admissibility of medical bills under Florida law is an individual’s obligation to pay them… [w]here a Plaintiff is not obligated to pay the full amount of the medical bills, the full amount of the medical bills becomes irrelevant and should be excluded.
Sensini v. MTD Sw. Inc., 2019 WL 2015957, at *1 (M.D. Fla. Jan 7, 2019). The court explained that Florida Statute 768.76 prohibits any set-off of Medicare/Medicaid benefits and, therefore, a post-verdict set-off for Medicare/Medicaid recipients is not an option.
And so, when a plaintiff is a Medicare/Medicaid recipient, defense attorneys can now successfully argue:
The medical providers are prohibited by federal and/or state statute from seeking additional payment after accepting payment from Medicare/Medicaid.
The plaintiff will only ever be liable for the Medicare/Medicaid subrogation/lien amount that corresponds to the payments actually made to the medical providers.
The difference between the initial gross charge and the payment amount is not relevant to any issue because the plaintiff will never have to pay that difference and the provider cannot seek payment of that difference from any person or entity.
The plaintiff should be precluded from presenting any evidence of the full charges submitted by providers and should only be allowed to present evidence of the amount Medicare has paid and which the plaintiff may ultimately be responsible for paying.
Defense counsel should not be timid in their quest to push for additional limitations on evidence of payments, adjustments, and write-offs that medical providers accept from other collateral sources. Florida policy is clear that “a Plaintiff… is not entitled to recover compensatory damages in excess of the amount which represents the loss actually inflicted by the action of the Defendant.” Dial, 337 So. 3d at 1232. This is a fundamental principle for the recovery of compensatory damages and should apply regardless of the source of the payment.
For cases filed after March 24, 2023, defense counsel will rely on House Bill 837, “Civil Remedies,” which establishes that the evidence offered to prove the amount of damages for past medical bills that have already been satisfied is limited to the evidence of the amount actually paid, regardless of the source of payment. However, for all those very-many cases filed before this monumental tort reform, defense counsel should consider the following:
To be admissible, evidence must be relevant; it must tend to prove or disprove a material fact. Charles W. Ehrhardt, Florida Evidence § 402.1, at 222 (2021 ed.).
The inflated gross amount of a charge is irrelevant as a proper measure of compensatory damages because it was subsequently paid by the plaintiff’s collateral source or adjusted and/or written off.
The original charge does not tend to prove or disprove that the claimant has suffered any loss by reason of the charge. Dial, 337 So. 3d at 1232 (citing Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 551 (Fla. 4th DCA 2003)).
Therefore, the plaintiff should be limited to presenting evidence of the amount actually paid.
Whether Florida’s courts will take up the issue of limiting evidence of past medical bills, regardless of the source of payment, for cases filed before House Bill 837 is unknown…after all, the days of it being an issue appear to be numbered. But, Florida courts are inundated with cases that are not subject to House Bill 837, and defense attorneys need to gear up with every tool available to advocate for their clients and prevent excessive awards.
*Amara is an associate in our Tampa, Florida, office. She can be reached at 813.898.1820 AXRodriguez@mdwcg.com.
Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
