Appellate Update: Fourth District Certified Question on Past Bills Paid by Medicare

May 27, 2021 by on News

The amount of medical bills a plaintiff can board at trial is often a source of contention between parties.  Recently, the Fourth District cleared up some of the confusion when it issued its opinion in Gulfstream Park Racing Ass’n v. Volin, 2021 Fla. App. LEXIS 7168 (Fla. 4th DCA May 19, 2021).  In that case, the court found a plaintiff’s full amount of past medical bills is inadmissible where Medicare has satisfied the bills for a lesser amount than was charged.  Id. at *1-2.

At common law, the collateral source rule permitted an injured party to recover full compensatory damages even where an independent source may have satisfied the medical bills.  However, to prevent plaintiffs from being compensated twice for the same bills, the legislature enacted the Tort Reform and Insurance Act of 1986.  See § 768.76, Fla. Stat.  The Act provides that payments from an insurance company should be setoff from a verdict, but it does not authorize courts to setoff payments from Medicare.  See § 768.76(2)(b), Fla. Stat.

When the Florida Supreme Court issued its decision in Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d, 1247 (Fla. 2015), it caused confusion among courts and litigants regarding whether, and to what extent, an exception to the collateral source rule applied to future and past Medicare benefits.  Relying on Joerg, the trial court in Gulfstream permitted the plaintiff to introduce the full amount of her medical bills, including those already satisfied for a lesser amount by Medicare.  2021 Fla. App. LEXIS 7168, at *2.  The jury awarded the full amount of damages, and the property owner appealed.  Id. at *3.

The Fourth District reversed for a new trial on damages, finding the remaining balance of medical bills after they were satisfied by Medicare – an amount the plaintiff would never pay – is considered a “phantom damage” and is inadmissible.  Id.  The court found it is fundamental that “the measure of compensatory damages in a tort case is limited to the actual damages sustained by the aggrieved party,” and “the amount a doctor bills is not actual damage if the debt is settled for a lesser amount by a source such as Medicare.”  Id.  (quoting Goble v. Frohman, 901 So. 2d 830, 834 (Fla. 2005) (citing Hanna v. Martin, 49 So. 2d 585, 587 (Fla. 1950)).

The Fourth District has now joined the Second District in certifying a question of great public importance to the Florida Supreme Court regarding whether Joerg prohibits the introduction of evidence of both past and future Medicare benefits in a personal injury case.  Id. at *8; see also Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020).  The Florida Supreme Court has already accepted jurisdiction in Dial and Kansas Gooden is drafting an amicus brief on behalf of the Florida Defense Lawyers Association.  The instant case will get marked as tagged to the Dial case.

For the time being, personal injury plaintiffs will not be permitted to board their full medical bills where Medicare has satisfied them for a lesser amount than was charged in the Second and Fourth District Courts of Appeal.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.

Allison C. Heim
Direct: 904.341.5943

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