UPDATE: Application of the Collateral Source Rule to Written Off or Reduced Medical Expenses

By Mark A. Abramson and Jared R. Green

I. Introduction:

In a previous article , we summarized the case law applying the collateral source rule to medical expenses that have been written off or reduced as a result of agreements between medical care providers and third-party payors, such as Medicaid, Medicare, or a private health insurance carrier. Since that article came out, two additional Superior Court decisions have been issued on this subject.

In Veilleux v. Noonan, Judge Houran answered the question he left open in Cromeenes v. Pease , which we briefly discussed at the end of our previous article. In Cromeenes, Judge Houran signaled a possible change in his view on this subject although he decided the pending motion on different grounds. However, in Veilleux, Judge Houran squarely rejected the personal injury defendants’ arguments and held that the plaintiffs were entitled to introduce evidence of the full amount billed for their medical care despite the fact that the providers accepted a lesser amount from the plaintiffs’ third party payors. He concluded that New Hampshire law permits the plaintiffs to introduce evidence of the reasonable value of their past and future medical care and the fact that the plaintiffs’ providers agreed to forego collection of the difference between what the third party payors paid and the reasonable value of the services is irrelevant.

Even more recently, in Christiansen v. Kunze , Judge Arnold conducted a thorough review of the relevant New Hampshire Supreme Court’s collateral source decisions and case law from other jurisdictions and determined that the plaintiff may present evidence of the amount billed by his health care providers even though the providers accepted less from Medicaid. Judge Arnold described the basis for his holding as follows:

  1. the Court cannot find that [our Supreme Court’s] prior decisions limit the plaintiff’s recovery to amounts actually paid. Prior cases do not support a holding that the amount paid is dispositive of the reasonable value. New Hampshire law generally seeks to avoid a windfall to the tortfeasor. The Court is, therefore, disinclined to adopt a rule that would differentiate between the types of benefits received by injured parties and effectively grant a tortfeasor a windfall for having injured an individual who receives public assistance.

These two new decisions from Judge Houran and Judge Arnold mean that at least five trial court judges have ruled that the collateral source rule prevents a defendant from taking advantage of a medical expense write off or reduction. As Judge Arnold recognized, and as is detailed in our previous article, that is also the clear majority rule in other states.

Endnotes

  1. "Application of the Collateral Source Rule to Medical Expenses Written Off in Medical Negligence and Personal Injury Cases," 29 TBN 177 (Fall, 2007).
  2. No. 06-C-207, Order on Motion in Limine (Grafton County Superior Court, April 7, 2008).
  3. Order on Motion in Limine to Limit Damages (Strafford County Superior Court, October 18, 2007).
  4. Id., Order at 2.
  5. No. 07-C-004, Order on Defendant’s Motion for Summary Judgment as to the Measure of Medical Expense Damages (Cheshire County Superior Court, April 16, 2008).
  6. Id., Order at 5.
  7. Id.
  8. In addition to Veilleux and Christiansen, see Williamson v. Odyssey House, Inc., 2000 DNH 238, 2000 WL 1745101 (D.N.H. November 3, 2000) (DiClerico, J.); Plummer v. Optima Health - Catholic Medical Center, 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) (McHugh, J.); McManus v. DeMoulas Supermarkets, Inc., No. 06-C-148, Order on Motion in Limine (Hillsborough County Superior Court, Southern District, March 28, 2007) (Brennan, J.).