The case law on the collateral source rule and the measure of future medical damages is evolving rapidly, spurred by the enactment of the Affordable Care Act. Weber Gallagher believes that the conversation has changed when it comes to calculating future medical damages in all types of matters, and we devote extensive resources to stay at the forefront of this cutting edge national topic.
Our practice group incorporates such concepts as the Affordable Care Act, Special Needs Trusts and Medicare Set Asides to reflect the real-world, value of future medical damages. This is in stark contrast to the inflated and highly questionable “billed” medical rates (what a patient would pay out of pocket without the cost controls imposed by insurance). These rates, typically put on the board by counsel for injured parties, are used in case after case to justify a traditional Life Care Plans in litigated cases. Yet, in just one recent ruling, the Delaware Supreme Court held that “. . . discounting is the rule rather than exception in healthcare today. Only a small fraction of persons receiving medical services actually pay original amounts billed. The small share that do are typically uninsured and not without means, a population that is expected to decline as a result of the insurance mandate of the Patient Protection and Affordable Care Act." It is this conclusion, among others across the country which we follow and report on, that helps support the very strategies we have incubated and built into our clients’ cases.
The facts and the law support a recalibration of these damages and a massive thought shift in the Life Care Planning industry, which strike at the core of the collateral source rule and require a brand new analysis to future medical damages in all types of matters. Some courts have already agreed in finding that the "realities of today's healthcare economy diverge from the traditional underpinnings of the collateral source rule." In short, we argue that the collateral source rule is outdated and to a certain extent inapplicable for our clients.
Our experienced team has consulted in matters all over the United States, aiding trial counsel, health systems, third party administrators, carriers and a variety of other clients with implementing sophisticated approaches to defending future medical damages. We have utilized this approach in general liability, medical malpractice and workers' compensation matters because it applies across the board. This includes advising clients on the proper use of discovery strategies, expert witnesses devoted to these disciplines, motion practice, trial preparation and even laying a solid foundation for appellate practice if necessary. We have successfully participated in mediations, settlement conferences and pre-trial motions as a partner to trial counsel solely on this topic all with the goal of showing true future medical costs based on likely insurance reimbursement rates and not predicated on out-of-pocket, billed rates.