Future Medical Damages
The December 2015 issue of Plaintiff discussed strategies for recovering damages for future medical expenses that focused on the collateral source rule.
Future medical expenses requires a plaintiff to prove the reasonable cost of reasonably necessary medical care that the plaintiff is reasonably certain to need in the future. Usually the plaintiff and the defense need to engage expert witnesses for this purpose.
After Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, an expert cannot base an opinion as to the reasonable value of future medical services on the past-billed amount for the same medical services. As a result of this case law, there are more motions in limine regarding how to calculate the reasonable cost of future medical damages. A motion in limine is a motion filed by a party to a lawsuit, which asks the court for an order limiting certain evidence from being presented by the other side at the trial.
The foundational requirements for establishing future medical care costs under the Patient Protection and Affordable Care Act (“PPACA”) requires individuals to sign up for medical insurance plans. The defense experts may offer, in a tort case, deposition testimony during discovery about the availability and estimated cost of individual categories of specific items of medical care under certain PPACA plans as evidence of the cost of items of plaintiff ’s future medical care. This testimony at trial is speculative, and violates the collateral source rule.
The collateral source rule prevents an injured person's damages from being reduced by payments from their own medical insurance, workers compensation, or other third party sources. Evidence of damages that is speculative, remote, imaginary, contingent or merely possible cannot be a legal basis for recovery. Evidence of future collateral source payments must be excluded.
An expert’s opinion based on fact assumptions without evidentiary support or on speculative or conjectural factors has no evidentiary value and should be excluded as not legally relevant because the prejudicial effect outweighs the probative value.
Irrelevant or speculative matters are not proper for an expert’s opinion. For example, using Medicare and Medi-Cal rates as the basis for an expert opinion is not allowed because it suggests the existence of a collateral source. This would require the expert to reveal the plaintiff is receiving or will receive public benefits.
The collateral source rule is a weapon when seeking to obtain full and fair compensation for future medical damages.
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