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Collateral Shrinkage

Worker’s compensation medical expense reductions conclusively join attorney discounts and reductions under Medicaid and certain finance arrangements outside the scope of collateral source recovery. Simmons v. Cornerstone Investments, LLC, 2018-0735 (La. 5/8/19). The amount actually paid under WC remains a collateral source. Howard v. National Union Fire Ins. Co., 2017-1221 (La.App. 1 Cir. 02/16/18), 243 So.3d 4.

The result is not a surprise, but the procedural means by which it was delivered causes some consternation. In Simmons, the Louisiana Supreme Court affirmed the 9th JDC judgment granting a defense motion in limine excluding billed medical expenses from evidence presented to the jury. A question raised by concurring Justice Hughes is whether the Court answered the wrong question. He agrees that the reduction amount is not recoverable, but would not use an evidentiary motion to achieve the result.

Proof of future medical expenses becomes more difficult if the jury considers only reduced past medical expenses. Craft v. Ports America Gulfport, Inc., 2018-0814 (La.App. 4 Cir. 05/08/19), discussed in the 5/8/19 CQ Newsflash, is a recent example of why that may be true. In Craft, the Fourth Circuit reversed a trial court JNOV and reinstated a $1,000,000 future medical expense jury award. Explaining why, the Craft panel quoted Gaunt v. Progressive Security Insurance Company, 2011-1094, p. 34 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1272:

Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. If a fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper. (Emphasis added.)

So, if past medicals presented to a jury at trial were reduced, but future medicals will not be covered by WC, then the plaintiff’s burden is marginally increased. Simmons prohibits jury consideration of the full billed amount. Justice Hughes’ concurrence addresses this point:

I agree that the plaintiff may only recover the amount authorized by law for his past medical expenses, not the amount billed by the medical providers. However, this does not make the plaintiff "whole." This is not a workers' compensation case. The plaintiff is entitled to seek damages against the tortfeasor for, not only past medical expenses, but also for future medical expenses, pain and suffering, mental anguish, and other general damages allowed by law. To do so, the plaintiff is entitled to present to the jury evidence of the duration of his medical treatment, including each doctor visit, drugs prescribed, physical therapy ordered, or any other medical treatment endured. This evidence may best be presented through an itemized statement from the medical provider, with the dollar amounts for the charges and/or payments redacted. Thus the plaintiff may pursue his claim "to be made whole" without prejudice.

Posted: May 13, 2019