A major change may be coming to Florida’s Collateral Source Rule, as we know it. When being used to determine the amount of damages a plaintiff is entitled to recover in a personal injury case, the Collateral Source Rule, at its core, reduces a plaintiff’s recovery for medical expenses by the total of all amounts which have been paid by a collateral source for the benefit of the plaintiff. Additionally, in its function as an evidentiary rule, it has served to limit the amount of medical expenses that may be “boarded” in certain cases, such as in the case of government-paid benefits like Medicare or Medicaid.
It is well-known that medical expenses paid by Medicare or Medicaid are often deeply discounted due to significant adjustments that are applied by the medical provider. Florida law has, for many years, limited plaintiffs to admitting or “boarding” at trial only the net amounts that Medicare or Medicaid paid the plaintiff’s medical providers in satisfaction of the plaintiff's medical expenses. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003). By contrast, amounts paid under private health insurance are generally permitted to be boarded in the full, gross amount of the charges, and any adjustments to the past medical expenses are then set-off from the verdict amount by post-trial motion. For personal injury defendants, the Thyssenkrupp limitation has been favorable because it has limited the amount of past medical expenses the plaintiff can demand from the jury, and that may translate to lower awards for other categories of damages, such as future medical expenses or past and future pain and suffering.
In 2015, in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), the Florida Supreme Court held that “when a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.” This ruling expanded on the Collateral Source Rule, by prohibiting the introduction of Medicare benefits as evidence in a personal injury case for the jury’s consideration of future medical expenses. Since Joerg, plaintiffs in Florida have sought to use the decision’s rationale to further erode the Collateral Source Rule and have often argued that the Florida Supreme Court intended to abandon the Thyssenkrupp exception for Medicare and Medicaid benefits and, as a result, unadjusted Medicare- or Medicaid-paid expenses should be admitted at trial. Recently, one appellate court considering the issue held that Joerg did not go so far, with respect to past medical expenses, but that Thyssenkrupp, a Florida Fourth District Court of Appeal decision, did not bind the trial courts in its district. See Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020).
On May 19, 2021, in the case of Gulfstream Park Racing Association, Inc. v. Volin, the Fourth District Court of Appeal certified the following question to the Florida Supreme Court as a question of great public importance:
Does the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury's consideration of future medical expenses also apply to past medical expenses?
Gulfstream Park Racing Association, Inc., d/b/a Gulfstream Park Racing and Casino v. Volin, 46 Fla. L. Weekly D1146a (4th District. Case No. 4D19-3471; Opinion: May 19, 2021). Volin arose from a Seventeenth Judicial Circuit case in Broward County. The plaintiff, Margret Volin, sued Gulfstream Park Racing Association, Inc. for personal injuries. Gulfstream moved to prevent Volin from introducing the gross amount of her past medical expenses into evidence at trial. The trial court denied the motion based on Volin’s argument that, under Joerg, she could introduce the gross amount of her past medical expenses, even if Medicare satisfied her them for a lesser amount. Gulfstream argued that Medicare's satisfaction of the debt for a lesser amount rendered the gross amount billed inadmissible, citing Thyssenkrupp, which held that “it is error to admit the gross amount of a plaintiff's medical bills if Medicare paid their medical providers a lesser amount in full satisfaction of the plaintiff's medical expenses.” Volin contended that, by extension, the Florida Supreme Court’s Joerg decision “implicitly overruled” Thyssenkrupp.
By certifying the question to the Florida Supreme Court, this suggests a departure by the Fourth District from its prior decision in Thyssenkrupp. Should the Florida Supreme Court consider and answer the certified question, this will provide greater clarity on the admissibility of past medical expenses paid by Medicare and Medicaid throughout the state. Potentially, this will result in an acceptance or rejection of the Fourth District’s rationale in Thyssenkrupp by Florida’s highest court. If the gross amounts of past medical expenses are held to be admissible in Medicare and Medicaid cases, that could mean in increase in potential exposure in those cases. We will continue to follow and report on this significant case and issue as it continues along the appellate process.