Jeffrey P. Gale, P.A. // Past Medical Expenses as Measure of Future Medical Expenses and Personal Injuries

A key objective of every civil law defense attorney is to limit the amount of money his or her client, the defendant, must pay to the suing party, the plaintiff. In Florida cases involving personal injuries, the damages for which the defendant may be held responsible for compensating the plaintiff fall into two categories, economic (e.g., lost wages and medical expenses) and non-economic (e.g., pain and suffering; mental anguish). (Non-economic damages are not recoverable in Florida workers’ compensation cases, where the law limits injured workers to compensation for medical and indemnity benefits only.)

Plaintiffs and defendants are in a never ending battle over the fairest and most accurate ways to demonstrate the plaintiffs’ damages past and future to juries. As it pertains to future medical expenses and past and future non-economic damages, a common area of dispute concerns what the jury is allowed to know in terms of past medical expenses. Plaintiffs argue that jurors should have the benefit of knowing the full amount of past medical charges regardless of how much was paid after reductions were made, for example, by Medicare, health insurance, settlement with another parry, and private negotiations. Defendants argue that the only relevant number is what has actually been paid or is owed, not what was billed.

In Durse v. Henn, 68 So. 2d 271 (Fla. 4th DCA 2011), the defendant in an automobile negligence action, Henn, filed a motion in limine to preclude the plaintiff, Durse, from presenting the full amount of his medical bills because his medical provider had accepted a lower amount as final satisfaction of all outstanding medical bills.  Id. at 275. The trial court granted Henn’s motion. On appeal, Durse argued that the trial court’s ruling prejudiced “his ability to establish the value of future medical expenses and non-economic damages and contend[ed] that this [was] an issue that should be resolved post-verdict.”  Id.  Henn argued that the trial court must limit introduction of the amount of medical bills to the amount actually paid by Durse, rather than the original face value of the medical bills. Id.

The Fourth District disagreed. As the Fourth District explained, the Florida “supreme court [in Florida Physician’s Insurance Reciprocal v.  Stanley, 452  So.2d 514 (Fla.1984)] intended to limit abrogation of the evidentiary portion of the collateral source rule to cases where the benefits received to reduce the cost of medical care were not earned (or paid for) in some way by the plaintiff.” Durse, 68 So. 2d at 275. Because the Plaintiff in Durse had negotiated down his medical payments, he had “earned in some way” the lowered final amount of his medical bills, and therefore introduction of the full amount of those bills was permissible.  Id.  at 1256. The Florida Supreme Court in Joerg v. State Farm Mut. Auto Ins., 176 So. 3d 1247 (Fla. 2015) later receded from Stanley to the “extent that it supported the admission of social legislation benefits as an exception to the evidentiary collateral source rule.” Joerg, 176 So. 3d at 1256.

Permitting a personal injury plaintiff to introduce the full amount of her medical bills at trial, even when the Plaintiff will ultimately be responsible for a much smaller portion of those bills, or another party would be entirely responsible for those bills, is the prevailing law in this state.

Zanakis v. Scanreco, 2019 WL 2215003 (S.D. Fla. Apr. 8, 2019) (cataloging recent Florida decisions that have explained that a Plaintiff’s full medical bills is relevant information to a jury)

Jaber v. NCL (Bahamas) Ltd., No. 1:14-CV-20158, 2015 WL 12860466, at (S.D. Fla. July 1, 2015) (denying defendant’s motion in limine to “bar Plaintiff from introducing at trial the full amount of her medical bills” because “[t]his issue of admissibility has been decided against Defendant by the Florida courts. At this pretrial stage, the Court cannot say that Plaintiff’s full medical bills will not be relevant. For example, they may be relevant to future medical expenses. Any collateral sources set-off (if applicable) should be addressed post-trial. Plaintiff is permitted to introduce the full amount of her medical bills.”) (citations omitted);

Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 899 (Fla. 5th DCA 2012) (finding “no error in the trial court’s decision to allow testimony of the full amount of Darragh’s past medical bills … The trial court properly treated the lesser amount negotiated for payment by Darragh’s private health insurer as a collateral source set-off to be made by the judge after trial”) (citation omitted);

Durse v. Henn, 68 So. 3d 271 (Fla. 4th DCA 2011) (“trial court erred by excluding the medical bills showing the full amount of the charges”);

Taylor v. State Farm Mut. Auto. Ins. Co., No. 3:09-cv-902-L-32MCR, 2011 WL 3235675, at *1 (M.D. Fla. July 28, 2011) (explaining that under “prevailing Florida law,” plaintiff “may admit evidence at trial of the gross amount of her medical bills”)).”

Preventing plaintiffs from introducing the full medical bills would be unfairly prejudicial in their ability to have the jury fairly assess a proper amount of all damage elements. The best means for a jury to assess the value of future medical expenses is that expended in the past for similar services.  See e.g., National Car Rental Sys., Inc. Holland, 269 So. 2d 407, 411 (Fla. 4th DCA 1972) (value of past medical expenses provides some indication of the cost of future medical care). Even if the original value of past medical expenses is not relevant to the past medical expenses to be awarded by the jury, Courts should recognize this admissibility for another purpose. § 90.107, Fla., Stat., (evidence that is not relevant for one purpose can still be admissible for another purpose). Put another way, it would be unfair for the jury to assess future medical expenses when they have been given an artificially low figure for past medical expenses.

Keeping juries from knowing the actual medical expenses also inhibits their ability to determine non-economic damages. The amount of past medical expenses may show the seriousness of the plaintiff’s injures, and jurors rightly relate that medical value to the hard-to-quantify value of pain and suffering, mental anguish, and the like. See Allstate v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998) (where a jury awards past medical expenses, there is almost always an accompanying award for past pain and suffering).

Finally, excluding the full value of medical bills would undermine public policy promoting settlements, discourage personal injury litigants from paying their medical bills, and encourage personal injury litigants to break contracts with their medical providers. For example, if a personal injury plaintiff knew that by accepting a settlement release in favor of a co-defendant to partially settle her lawsuit she would be precluded from introducing her full amount of medical bills to the jury, which would inform the jury’s determination of an amount to award for future medical expenses and non economic damages, the personal injury plaintiff would likely not settle with the co-defendant. Additionally, where an employer is vicariously liable for his co-defendant employee and the two defendants have entered into a joint defense agreement, the employer could avoid presenting to the jury the full amount of the plaintiff’s medical bills by encouraging the employee to file a proposal for settlement with a release that requires the Plaintiff to satisfy her past medical bills out of the settlement.

Credit for much of the content of this blog goes to the brilliant Matthew Christ of Domnick, Cunningham, and Whalen in North Palm Beach, Florida, who prepared a wonderful memorandum on the issue in connection with a case our two law firms are handling on behalf of a young woman who was severely injured in a Florida Turnpike motor vehicle crash. The issue came to the fore after we settled with one of the defendants and one of the two remaining defendants filed a motion to prevent us from introducing the full face value of the medical bills based on the settlement release language. The defendant argues that the settlement release required our client to resolve her past medical payments out of the settlement.

While not explicitly discussed in the Fourth District’s opinion in Durse, the appellate briefs submitted to the Fourth District in that case confirm that the reason the plaintiff in Durse had negotiated down his medical bills, and even paid off many bills, was because “Durse reached  pre-trial settlements with his two co-defendants, and those settlement proceeds were required to be applied to medical bills, under the agreements between Plaintiff and those medical providers.” Initial Brief at 46, Durse v. Henn, No. 4D09-1659. Accordingly, the Fourth District was aware of the reason why Durse had negotiated a lower amount of his medical bills: The settlement release from his co-defendants required him to apply the settlement proceeds towards his medical bills, just as the release in our case requires the plaintiff to do the same. In short, just as in Durse, our client earned the funds used to resolve her past medical bills. See, e.g., Durse, 68 So. 2d at 275.

There will be no windfall to the plaintiffs and no prejudice to defendants where the value of past medical expenses is provided to the jury, even if a plaintiff has agreed as a condition of settlement with a co-defendant to resolve these expenses out of the settlement. Courts will have the opportunity post-verdict to reduce, where appropriate, the amount of the plaintiff’s outstanding medical bills already satisfied.


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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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