Application of the Collateral Source Rule to Medical Expenses Written Off in Medical Negligence and Personal Injury Cases

Application of the Collateral Source Rule to Medical Expenses Written Off in Medical Negligence and Personal Injury Cases

By

Kevin F. Dugan and Jared R. Green

 

I.          Introduction:

            Defendants in personal injury and medical negligence cases are trying to take advantage of medical expense discounts negotiated by the plaintiff’s health insurer, Medicaid, or Medicare.  They now move in virtually every case for an order preventing the plaintiff from introducing evidence of the amount billed by his or her providers if the providers ultimately accepted a discounted amount from the plaintiff’s payor

            The New Hampshire Supreme Court has not ruled on this issue.  As a result, the following review of New Hampshire’s collateral source rule, out-of-state cases, and New Hampshire trial court opinions, is intended to assist practitioners and trial judges who face such motions.

 

II.        New Hampshire’s Collateral Source Rule:

            Under New Hampshire common law, “an award of damages may not be reduced by the amount of benefits a plaintiff receives from a collateral source.”[1]  Our Supreme Court has listed several recognized collateral sources including “benefits paid under an insurance policy or by a relief association; employment benefits; gratuitous payments; social legislation benefits such as social security, welfare, pensions; and benefits received under certain retirement acts.”[2]  

            The common law collateral source rule is supported by a number of policy considerations.  First, is the belief that “a tort-feasor should not be allowed to escape the consequences of his wrongful act merely because his victim has received a benefit from a collateral source which would constitute a windfall to the defendant wrongdoer.”[3]  Second, “in many instances the plaintiff has paid for these benefits in the form of insurance premiums or concessions in the wages he received because of such fringe benefits”[4] and he or she should receive the benefit of his or her bargain.  Third, where the collateral source payment is purely gratuitous, “it is maintained that the maker of these payments did not intend to relieve the tort-feasor of any liability, but rather to aid the plaintiff by doing him a favor.”[5]  Fourth, “the collateral source rule is designed to offset the inability of ordinary damages to adequately compensate an injured accident victim.”[6]  And lastly, our Supreme Court has recognized that some collateral source payments are subject to a right of subrogation, meaning that the plaintiff may have to pay them back.[7]  In adopting the collateral source rule, the Court concluded that, if there is a “windfall” to be had from collateral source benefits, it should go to the plaintiff rather than the defendant.[8]

            In light of these considerations, "[i]t is settled law in this jurisdiction that a tort defendant can derive no benefit from the fact that plaintiff was insured or that his bills have been paid by a workmen's compensation insurer or from other sources.”[9]

 

III.       New Hampshire Collateral Source Considerations Relevant to Medical Expense Write Offs:

           Medical expense write offs implicate various collateral sources recognized by New Hampshire law, including insurance benefits, social legislation benefits, and gratuitous payments.

           Insurance benefits are the quintessential collateral sources.  As early as 1898, our Supreme Court rejected a defendant’s request that the jury be instructed to deduct the plaintiff’s insurance proceeds from his damages.[10]  The Court disagreed that the jury instruction was necessary to prevent a double recovery.  “[T]he answer to this is that [the plaintiff] recovers but once for the wrong done him, and he receives the insurance money upon a contract to which the defendant is in no way privy, and in respect to which his own wrongful act can give him no equities.”[11]

           With respect to social legislation benefits, the leading New Hampshire case held that an injured serviceman was entitled to a full recovery from the defendant even though the federal government continued his pay without a right of subrogation.[12]  Benefits under the Medicaid and Medicare programs would appear to fit squarely within the category of social legislation benefits to which the collateral source rule applies.

           Gratuitous payments have also been recognized as collateral sources in New Hampshire.  In one case, a personal injury defendant sought to introduce evidence that the plaintiff’s medical bills were paid by the Manchester Firemen's Relief Association.  The trial court refused.  On appeal, the defendant argued that the plaintiff should not be permitted to recover medical expenses unless he paid for them himself or at least incurred a legal liability to pay them.  The Supreme Court disagreed. 

 

                        On principle it should make no difference to the defendants

                        whether the payment was made by virtue of friendship,

                        philanthropy or contract with a third party. The medical

                        service given to the plaintiff was for his benefit and not for

                        the benefit of the wrongdoer who has been adjudged liable.

                        It is no concern of the wrongdoer whether the bills for medical

                        services and expenses were paid by an indulgent uncle, a liberal

                        employer or a relief association.[13]

 

            The New Hampshire case that comes closest to addressing medical expense write offs is Lefebvre v. Government Employees Insurance Company.[14]  In Lefebvre, the plaintiff was injured when she was struck by a car.  She received free medical care because her husband was a military serviceman.  When she filed suit against the driver of the car, the United States asserted its statutory right to subrogation and had the woman’s attorney bring a claim on its behalf to recover the value of the free medical care it had provided.  The woman settled the claim against the driver and the United States was paid in full out of the settlement proceeds.  The injured woman then made a claim under the medical payments coverage of her automobile insurance policy.  The carrier refused to pay the value of the free medical care provided by the federal government. 

            The case was submitted to the Supreme Court on stipulated facts.  The Court held that by federal statute the right of recovery was solely the right of the United States, and as a result, the woman had not “incurred” any expenses within the meaning of the med pay provision of her insurance policy.  The Court noted, however, that even though the care had been provided for free, “under our collateral source rule, plaintiff was entitled to recover the full value of the services from a third party tort-feasor and in the absence of a subrogation agreement or assignment would be able to keep the full amount recovered.”[15]

IV.       The Vast Majority of Out-of-State Cases Apply the Collateral Source Rule to Preclude Evidence of Medical Expense Write Offs

            Courts in at least fifteen states have held that medical expense write offs are inadmissible under the collateral source rule.  One of the first courts to reach this conclusion appears to be the Missouri Court of Appeals, which unanimously upheld the exclusion from trial of evidence that the plaintiff’s medical care providers has written off a portion of his bills pursuant to their contract with Medicare in a 1994 case.[16]

            In 1998, the Arkansas Supreme Court became the first state court of last resort to consider medical expense write offs.[17]  In the Arkansas case, the plaintiff was injured when she fell in a Montgomery Ward department store.  She incurred medical expenses of nearly $25,000, but her attorney negotiated a fifty percent discount with her medical care providers.  Prior to trial, the defendant moved unsuccessfully to prohibit the plaintiff from introducing the total medical bill and asked that she be limited to introducing evidence of the amount she would be responsible to pay.  Following a verdict in favor of the plaintiff, the defendant appealed. 

            After reviewing the collateral source rule, the Arkansas Supreme Court observed that “[t]here is no evidence of record showing that Montgomery Ward had anything to do with procuring the discount of Ms. Anderson’s bill . . .   The rationale of the [collateral source] rule favors her, just as it would had she been compensated by insurance for which she had arranged.”[18]    The court then reviewed the recognized exceptions to the collateral source rule and concluded that none applied.  It found support for the trial judge’s ruling in the Restatement (Second) of Torts.  Specifically, the court cited section 920A and its accompanying comments. 

 

                        Comment b to that Restatement section explains that, if the

                        plaintiff is responsible for the benefit received, the law allows

                        the plaintiff to keep it.  Further, if the benefit was a gift to

                        the plaintiff from a third party or established for the plaintiff

                        by law, the plaintiff should not be deprived of the advantage

                        that it confers. . . . Comment c(3) indicates that gratuities of

                        cash or services are collateral sources that are not subtracted

                        from a plaintiff’s recovery.  The comment gives the example

                        of a doctor who does not charge for medical services.[19]

       

           The court expressly rejected Montgomery Ward’s argument that “gratuitous medical services may not be an item of recovery because the policy behind the collateral source rule does not apply where the plaintiff has incurred no expense or obligation for the services needed.”[20]   Instead, it held that “gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal-injury plaintiff.”[21]  This rule, it concluded, was consistent with the Restatement of Torts and with the state’s policy of allowing the innocent plaintiff, instead of the tortfeasor defendant, to receive any windfall associated with the cause of action.[22]

            Following the Arkansas Supreme Court’s unanimous decision, the issue arose before the  Virginia Supreme Court in a 2000 case.[23]  There, the court faced an appeal from a plaintiff’s verdict in the amount of $150,000 arising from an automobile accident.  The trial judge had permitted the plaintiff to introduce his full medical bills, including sums that had been written off by his providers.  On appeal, the defendant argued that the collateral source rule should not apply because the plaintiff “is not, and never will be, legally obligated to pay those portions of his medical bills that were written off, nor were those amounts paid on his behalf.”[24]   The court was not persuaded:

 

                        That argument overlooks the fundamental purpose of the rule,

                        . . . , to prevent a tortfeasor from deriving any benefit from

                        compensation or indemnity that an injured party has received

                        from a collateral source.  In other words, the focal point of the

                        collateral source rule is not whether an injured party has “incurred”

                        certain medical expenses.  Rather, it is whether a tort victim has

                        received benefits from a collateral source that cannot be used to

                        reduce the amount of damages owed by a tortfeasor.[25]

 

            Having rejected the defendant’s primary argument, the court unanimously concluded that “[t]he portions of medical expenses that health care providers write off constitute compensation or indemnity received by a tort victim from a source collateral to the tortfeasor.”[26]  According to the court, “[t]his conclusion is consistent with the purpose of compensatory damages, which is to make a tort victim whole.  However the injured party should be made whole by the tortfeasor, not by a combination of compensation from the tortfeasor and collateral sources.”[27]

            After the Virginia Supreme Court’s decision, a number of other courts followed suit including the Mississippi Supreme Court[28], the Georgia Court of Appeals[29], the unanimous District of Columbia Court of Appeals[30], the unanimous South Carolina Supreme Court[31], the Hawai’i Supreme Court[32], the Illinois Supreme Court[33], the unanimous Delaware Supreme Court[34], the Kentucky Supreme Court[35], the Arizona Court of Appeals[36], and the United States District Court for the District of New Mexico[37].

            Most recently, within the last several months, two state supreme courts have issued opinions applying the collateral source rule to medical expense write offs.  First, on July 3, 2007, the Wisconsin Supreme Court reversed a trial judge who had ruled that evidence of a health insurance write off was admissible on the issue of the reasonable value of the plaintiff’s medical care.[38]

            The court explained that, under its prior case law, “the collateral source rule allows the plaintiff to seek recovery of the reasonable value of medical services without consideration of gratuitous medical services rendered or payments made by outside sources on the plaintiff's behalf, even when made at reduced rates.”[39]  The rule, according to the court, “ensures that the liability of similarly situated defendants is not dependent on the relative fortuity of the manner in which each plaintiff's medical expenses are financed.”[40]

            Finding that the trial court erred in allowing the jury to hear evidence of the amount paid by the plaintiff’s health insurance carrier, the court noted that “[i]f evidence of the collateral source payments were admissible, even for consideration of the reasonable value of the medical treatment rendered, a plaintiff's recovery of medical expenses would be affected by the amount actually paid by a collateral source for medical services.”[41]

            On August 15, 2007, the unanimous South Dakota Supreme Court similarly held that the collateral source rule prohibited tort defendants from offering into evidence any amounts written off by the plaintiff’s medical care providers pursuant to contractual arrangements with sources independent of the defendants.[42]

            While fifteen states have unequivocally prohibited evidence of the reduced amount paid by a health insurer, Medicaid, or Medicare, a few courts have produced more mixed results.  For example, the Louisiana Supreme Court has concluded that the collateral source rule prohibits evidence of reduced amounts paid by Medicare or private health insurance carriers, but it does not bar evidence of reduced amounts paid by Medicaid.[43]  Specifically, the court ruled that “where the plaintiff pays no enrollment fee, has no wages deducted, and otherwise provides no consideration for the collateral source benefits he receives, we hold that the plaintiff is unable to recover the ‘write-off’ amount.”[44]

            The courts of Kansas have reached a similar conclusion.  In Bates v. Hogg[45], the Kansas Court of Appeals held that the amount paid by Medicaid was the appropriate measure of damages rather than the amount billed by the provider.  Seven years later, the Kansas Supreme Court held that Bates was limited to Medicaid only and that plaintiffs could recover amounts written off by health care providers pursuant to Medicare or private insurance arrangements.[46]  The court was persuaded by the decisions from other states applying the collateral source rule in cases involving Medicare and private health insurance and ultimately concluded that “any windfall from the injured party's collateral sources should benefit the injured party rather than the tortfeasor, who should bear the full liability of his or her tortious actions without regard to the injured parties' method of financing his or her medical treatment.”[47]

            The Ohio Supreme Court recently threw its hands up in the air and concluded that “the reasonable value of medical services is a matter for the jury to determine from all relevant evidence.  Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.  The jury may decide that the reasonable value of medical care is the amount originally billed, the amount the medical provider accepted as payment, or some amount in between.”[48]

            On the other side of the ledger, only five courts have flatly held that a plaintiff is entitled to recover only the amount that was actually paid for his or her medical care.  The first court to rule in that way was the California Court of Appeal.[49]  In a 1988 decision, the court held that

“a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services . . .”[50]  However, the court expressly stated that the collateral source rule “is not an issue in this case” and the decision was based solely on the court’s interpretation of the phrase “reasonable value” as it pertained to the plaintiff’s medical care.[51]

            An intermediate appellate court in New York has held without extended analysis that a Medicare write off “is not an item of damages for which plaintiff may recover because plaintiff has incurred no liability therefor.”[52]

            The Idaho Supreme Court subsequently relied on the New York appellate court’s decision to hold that a plaintiff could not recover the difference between the medical care provider’s bill and the amount actually paid by Medicare because that was the type of “windfall” that a state statute was intended to prevent.[53]

            Similarly, the Florida Supreme has ruled that a state statute abrogating the common law collateral source rule prevents plaintiffs from recovering the difference between the amount billed by their providers and the amount paid by their private health insurance carriers.[54]  Thus, despite the fact that the court determined that private health insurance discounts constitute collateral sources, it was constrained by the statute to limit the plaintiff’s recovery.

            The case most cited by defendants seeking to admit evidence of a medical expense write off is the Pennsylvania Supreme Court’s 2001 decision in Moorhead v. Crozer Chester Medical Center.[55]  Moorehead was a medical negligence case and the defendant that was responsible for causing the plaintiff’s decedent’s harm also provided medical care to her after she was injured but before she died.  As a result, the defendant hospital was both the tortfeasor and the provider of the medical care for which the plaintiff was seeking to recover damages.  The hospital billed the plaintiff $108,668.31 for the decedent’s medical care but accepted Medicare’s payment of $12,167.40 and wrote off the rest.[56]

            At trial, the judge limited the plaintiff to the amount actually paid by Medicare.  A divided intermediate appellate court affirmed and the issue went to the state supreme court.  The court began by citing an 1896 case for the proposition that, in Pennsylvania, “[t]he expenses for which a plaintiff may recover must be such as have been actually paid . . .”[57]  Accordingly, “where, as here, the exact amount of expenses has been established by contract and those expenses have been satisfied, there is no longer any issue as to the amount of expenses for which the plaintiff will be liable.  . . . the injured party should be limited to recovering the amount paid for the medical services.”[58]

            The court went on to state that its view was in accord with the Restatement (Second) of Torts §911 comment h[59] and that the collateral source rule did not apply because the plaintiff had not paid the difference between the Medicare payment and the amount billed by the hospital.[60]

            Justice Nigro dissented from the majority opinion.  He focused on the fact that, “by fully covering [the decedent’s] post-injury medical services, Medicare and Blue Cross 65 conferred a benefit on [her] equal to the reasonable value of the medical services provided . . .”[61]  In Justice Nigro’s view, “[t]he collateral source rule dictates that [the defendant hospital] cannot profit from the benefit that [the decedent] received from her health insurers, but that is exactly what the majority allows today.”[62]

            Justice Nigro also explained that “the majority's reliance on Comment h to the Restatement (Second) of Torts §911 for the assessment of the reasonable value of medical services provided to [the decedent] is misplaced. While Section 911 generally governs valuation, Comment h deals specifically with the measure of recovery for a plaintiff ‘who sues for the value of his services tortiously obtained by the defendant's fraud or duress, or for the value of services rendered in an attempt to mitigate damages.’”[63]

            He concluded by stating, “[i]n my view, the decision of the majority improperly limits the recovery of medical expenses by creating an exception to tortfeasor liability.  Although it is the tortfeasor's responsibility to compensate for all harm that he causes, and not just the net loss of the injured party, the majority exempts tortfeasors from liability for collateral benefits received by injured plaintiffs.”[64]

            Other courts have sharply criticized the Moorhead decision. The District of Columbia Court of Appeals, for instance, noted that  “[r]egardless of any broad language in the opinion in Moorhead, that case involved medical services provided by the tortfeasor itself so that an application of the collateral source rule would have required, in effect, double payment.”[65]  The Hawai’i Supreme Court also explained that, both the California Court of Appeal case and Moorhead, were not persuasive because both mistakenly relied on the explanation of the term “value” described in Restatement of Torts (Second) § 911, comment h.  That provision of the Restatement, according to the Hawai’i court, applies only where a provider is suing for the value of the medical services provided or seeks to recover expenditures incurred to third persons.[66]

            The Arizona Court of Appeals summed it up when it politely explained that the California and Pennsylvania cases “represent a distinct minority view and have not been followed by other courts.  A majority of courts have concluded, contrary to [those decisions], that plaintiffs are entitled to claim and recover the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions.”[67]

 

V.        New Hampshire Trial Court Decisions:

            Judge David Sullivan issued what appears to be the first New Hampshire trial court decision on medical expense discounts in1999 in Debski v. JMC Equities Corporation.[68]  In Debski, the plaintiff was injured by a drunk driver, and she brought a dram shop case seeking to recover, inter alia, damages for past medical expenses.  One of the defendants filed a motion in limine asking the court “to limit the amount of damages for medical expenses plaintiff can claim to the amount actually paid by Medicare rather than the amount originally billed by the doctors.”[69]

            Judge Sullivan reviewed the New Hampshire cases addressing the collateral source rule and then cited §911 comment h from the Restatement (Second) of Torts for the proposition that a plaintiff who pays less than the reasonable value for services can recover no more than the amount paid unless the lower price was intended as a gift.[70]  Since the Medicare discount was not intended as a gift to the plaintiff, Judge Sullivan concluded that “the reasonable value of the services which plaintiff is entitled to is the amount actually paid by Medicare.”[71]  He explained that this determination was consistent with the New Hampshire Supreme Court cases applying the collateral source rule because, in those case, “the collateral source rule was applied to expenses which were actually paid by a third party.”[72]

            Judge Sullivan also said his decision was in accord with other jurisdictions that had addressed the issue in the context of Medicaid.  However, the cases he cited for this proposition included a federal district court case from Virginia that, as it turns out, incorrectly predicted how the Virginia Supreme Court would rule[73], the Kansas Court of Appeals decision in Bates that was subsequently found by the Kansas Supreme Court to be inapplicable to Medicare cases, and the California Court of Appeal decision, discussed above, that has been criticized by other courts.[74]  In addition, Judge Sullivan relied on Restatement §911 comment h which has since been noted by other courts to be inapplicable to medical expense write offs.

           The next trial court decision appears to be Judge DiClerico’s November 2000 opinion in Williamson v. Odyssey House, Inc.[75]  In that case, the defense sought to exclude evidence of the billed cost of medical services and to limit the evidence of damages for medical expenses to the amount actually paid by Medicaid.[76]    

            Judge DiClerico reviewed New Hampshire’s collateral source rule and case law defining the elements of damages and concluded that “under New Hampshire law, a plaintiff's recovery is not limited to the actual amount that has been paid or will be paid for medical services, but is instead measured by the reasonable value of such services.”[77]

            He then identified the out-of-state cases, which by this time included a number of cases supporting the plaintiff’s side, and determined that “[i]n light of New Hampshire's collateral source rule and the standard for the measure of damages for medical costs, the court concludes that the reasonable value of medical services that [the minor plaintiff] has required and probably will require in the future is the proper measure of damages, regardless of the amount paid for   those services by Medicaid.”[78]           

            Ten days later, Judge Kenneth McHugh, issued his decision in the medical negligence case of Plummer v. Optima Health - Catholic Medical Center.[79]  Although Judge McHugh did not cite, and probably was not aware of, Judge DiClerico’s order, he expressly rejected Judge Sullivan’s analysis in the Debski case.[80]  Instead, Judge McHugh held that, under New Hampshire’s collateral source rule, the plaintiff was entitled to recover the amount billed by her providers without regard for the reduced amount paid by Medicaid.[81]  In a similar case decided five years later, Judge McHugh stood by his earlier decision.[82]

            In January of 2007, Judge Steven Houran issued an order in the auto accident case of Cook v. Morin-Binder.[83]  Prior to trial, the plaintiff moved in limine for permission to submit her full medical bills even though her providers accepted a discounted amount from her health insurer.  Relying on the Pennsylvania Supreme Court’s decision in Moorhead and §911 comment h from the Restatement (Second) of Torts, Judge Houran held that “the collateral source rule does not apply to the written off amounts” because “[t]hese amounts were not paid by a third party, and the plaintiff incurred no expense or obligation to pay the written off amounts.”[84]

            Judge Houran did not acknowledge that Moorhead represents the distinct minority position on this issue and he did not cite or distinguish any of the numerous cases that have gone the other way.  Nor did he address the fact that Restatement §911 comment h, by its terms, appears to apply to an entirely different factual scenario.  

            Judge Houran reiterated his same reasoning in a different case decided a few weeks after Cook, in which he held that a plaintiff could not recover Medicare and private health insurance discounts.[85]

            In March 2007, Judge Arthur Brennan addressed this issue in McManus v. DeMoulas Supermarkets, Inc.[86]  The plaintiff in that case fell at a grocery store and injured her leg.  The defendant moved in limine to preclude the plaintiff from offering her medical bills at trial since the plaintiff’s health insurance carrier had paid a discounted amount.  In its motion, the defense cited Judge Sullivan’s Debski decision and Judge Houran’s decisions in Cook and Sica

            In response, plaintiff’s counsel, Paul Moore, crafted a masterful objection, mixing a discussion of New Hampshire’s collateral source rule with citation to Judge DiClerico’s Williamson decision and out-of-state cases representing the majority view across the country.  Judge Brennan ultimately issued a one sentence order stating “Motion denied.  The Court agrees with the legal reasoning in plaintiff’s objection and adopts that reasoning.”[87]

            Most recently, Judge Houran reconsidered his prior conclusions in Cook and Sica and wondered aloud if they were mistaken.[88]  After deciding the pending motion on other grounds, Judge Houran noted the split among the Superior Court reflected in the Debski on one hand and Plummer on the other and stated “[t]he plaintiff's Objection sets forth a series of well thought out arguments as to why the former position, which in appropriate cases permits the consideration of amounts written off by a plaintiffs health care providers as potentially bearing on the reasonable value of medical expenses, with which position this court has previously agreed, is in error.”[89]  He declined to determine “whether [his] prior views of the law may be in error” on this issue since he had denied the defendant’s motion on other grounds.[90]

VI.       Conclusion:

            Cases interpreting New Hampshire’s common law collateral source rule support the conclusion that a tortfeasor is not entitled to take advantage of a medical expense discount from the plaintiff’s medical care providers.  At least fourteen state appellate courts, including eleven courts of last resort, have held that a tort defendant cannot introduce evidence of a medical expense write off.  Two other state supreme courts have concluded that amounts written off pursuant to Medicare or private health insurance are recoverable by the plaintiff, while amounts written off under the Medicaid program are not.  On the other hand, only five state appellate courts have flatly held that a plaintiff is limited to the amount that was actually paid for his or her medical care and three of those courts relied on specific state statutes in doing so. 

            In accordance with the clear weight of authority, New Hampshire courts should continue to apply the collateral source rule as it has been interpreted here so that a tort defendant can deriveno benefit from the fact that the plaintiff was insured or that his bills have been gratuitously paid.     

 

                                                                   ENDNOTES



[1]Cyr v. J.I. Case Company, 139 N.H. 193, 195 (1994).

[2]Moulton v. Groveton Papers Company, 114 N.H. 505, 509 (1974).

[3]Id.

[4]Id.

[5]Id., 114 N.H. at 510.

[6]Id.

[7]See Carson v. Maurer, 120 N.H. 925, 940 (1980).

[8]See id.

[9]Anderson v. DeLaurier, 106 N.H. 57, 59 (1964) (emphasis added).  See also Merchants Mutual Insurance Group v. Orthopedic Professional Association, 124 N.H. 648, 656 (1984) (quoting Anderson); Bell v. Primeau, 104 N.H. 227, 228 (1962).

[10]See Rolfe v. Boston & Maine Railroad, 69 N.H. 476, 477 (1898).

[11]Id. (quoting Perrott v. Shearer, 17 Mich. 48, 56).

[12]See Bell, supra note 13, 104 N.H. at 229.

[13]. Clough v. Schwartz, 94 N.H. 138, 140-41 (1946).

[14]. 110 N.H. 23 (1969).

[15]. Id., 110 N.H. at 25.

[16]. Brown v. Van Noy, 879 S.W.2d 667 (Mo.App. 1994), transfer denied, 8/15/94.

[17]. Montgomery Ward & Company, Inc. v. Anderson, 976 S.W.2d 382, 385 (Ark. 1998).

[18]. Id., 976 S.W.2d at 384.

[19]. Id., 976 S.W.2d at 385.

[20]. Id.

[21]. Id.

[22]. See id.

[23]. Acuar v. Letourneau, 531 S.E.2d 316 (Va. 2000).

[24]. Id., 531 S.E.2d at 321.

[25]. Id., 531 S.E.2d at 322.

[26]. Id., 531 S.E.2d at 322-23 (quotations omitted).

[27]. Id., 531 S.E.2d at 323.

[28]. Brandon HMA, Inc. V. Bradshaw, 809 So.2d 611 (Miss. 2001).

[29]. Olariu v. Marrero, 549 S.E.2d 121 (Ga.App. 2001), cert. denied, 9/17/01.

[30]. Hardi v. Mezzanotte, 818 A.2d 974 (D.C. 2003).

[31]. Covington v. George, 597 S.E.2d 142 (S.C. 2004).

[32]. Bynum v. Magno, 101 P.3d 1149 (Hawai’i 2004).

[33]. Arthur v. Catour, 833 N.E.2d 847 (Ill. 2005).

[34]. Mitchell v. Haldar, 883 A.2d 32 (Del. 2005).

[35]. Baptist Healthcare System, Inc. v. Miller, 177 S.W.3d 676 (Ky 2005).

[36]. Lopez v. Safeway Stores, Inc., 129 P.3d 487 (Ariz.App. 2006), rev. denied, 9/26/06.

[37]. Pipkins v. TA Operating Corporation, 466 F.Supp.2d 1255 (D.N.M. 2006).

[38]. Leitinger v. Dbart, Inc., 736 N.W.2d 1 (Wis. 2007).

[39]. Id., 736 N.W.2d at 12.

[40]. Id., 736 N.W.2d at 10.

[41]. Id., 736 N.W.2d at 13.

[42]. Papke v. Harbert,        N.W.2d        , 2007 WL 2353132 (S.D. 2007).

[43]. Bozeman v. State, 879 So.2d 692 (La. 2004).

[44]. Id., 879 So.2d at 705.

[45]. 921 P.2d 249, rev. denied, 260 Kan. 991 (1996).

[46]. Rose v. Via Christi Health System, Inc., 78 P.3d 798 (Kan. 2003).

[47]. Id., 78 P.3d at 806.

[48]. Robinson v. Bates, 857 N.E.2d 1195, 1200 (Ohio 2006).

[49]. Hanif v. Housing Authority, 246 Cal.Rptr. 192 (Cal.App. 1988).

[50]. Id., 246 Cal.Rptr. at 196 (emphasis in original).

[51]. Id., 246 Cal.Rptr. at 195.

[52]. Kastick v. U-Haul Company, 740 N.Y.S.2d 167 (N.Y.App. 2002).

[53]. Dyet v. McKinley, 81 P.3d 1236 (Idaho 2003).

[54]. Goble v. Frohman, 901 So.2d 830 (Fla. 2005).

[55]. 765 A.2d 786 (Pa. 2001).

[56]. Id., 765 A.2d at 788.

[57]. Id., 765 A.2d at 789 (quoting Goodhart v. Penn. R.R. Co., 35 A. 191, 192 (Pa. 1896)).

[58]. Id.

[59]. Id.

[60]. Id., 765 A.2d at 791.

[61]. Id., 765 A.2d at 794 (Nigro, J. dissenting).

[62]. Id.

[63]. Id., 765 A.2d at 795 (Nigro, J. dissenting).

[64]. Id.

[65]. Supra Note 30; Hardi, 818 A.2d at 985

[66]. Supra Note 32; Bynum, 101 P.3d at 1159.

[67]. Supra, Note 36; Lopez, 129 P.3d at 495.

[68]. No. 98-C-602. Order on Defendant Y.L.Z. Corporation’s Motion in Limine - Medical Special [47] (Hillsborough County Superior Court, Northern District, July 7, 1999).

[69]. Id., Order at 2.

[70]. Id., Order at 5.

[71]. Id.

[72]. Id. (citing Clough, 94 N.H. at 138; Bell, 104 N.H. at 227).

[73]. McAmis v. Wallace, 980 F.Supp. 181 (W.D. Va. 1997).  As is noted above, the Virginia Supreme Court subsequently held in Acuar that medical expense write offs constitute collateral sources.

[74]Supra Note 72; Debski, Order at 5-6 (citing McAmis, Bates, and Hanif).

[75]. 2000 DNH 238, 2000 WL 1745101 (D.N.H. November 3, 2000).

[76]. Id. 2000 WL 1745101 at *1.

[77]. Id.

[78]. Id.

[79].  No. 98-C-1010, Order On Defendant Catholic Medical Center’s Motion to Compel Production of Medicaid Information (Rockingham County Superior Court, November 13, 2000).

[80]. Id., Order at 4.

[81]. Id., Order at 4-5.

[82]. Raley v. Albertson, No. 04-C-163, Order on Motion to Compel (Rockingham County Superior Court, December 22, 2005).

[83]. No. 05-C-319, Order (Strafford County Superior Court, January 12, 2007).

[84]. Id., Order at 3-4.

[85]. Sica v. Britton, No. 05-C-213, Order on Motion in Limine (Strafford County Superior Court, February 1, 2007).

[86]. No. 06-C-148, Order on Motion in Limine (Hillsborough County Superior Court, Southern District, March 28, 2007).

[87]. Id.

[88]. Cromeenes v. Pease, Order on Motion in Limine to Limit Damages (Strafford County Superior Court, October 18, 2007).

[89]. Id., Order at 3.

[90]. Id.