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1By: Fay O. Pappas

Consider this hypothetical:

A. You represent a Medicaid beneficiary for serious personal injuries (for demonstration purposes, let’s pretend it’s a cervical discectomy at C6-C7 with a couple of nights at a local hospital, preceded by a round of steroid injections and other failed conservative measures).

B. Thus, your client’s gross medical expenses total $150,000.

C. But after adjustment by Medicaid, the plaintiff’s net medical expenses look more like $5,000 for which Medicaid has a statutory right of reimbursement.

D. Next, imagine defense counsel serves you with a Motion in Limine, asking the court to restrict your client’s boardable medical specials to her Medicaid lien amount.

E. You read that right. Defense counsel wants to erase nearly 97 percent of your client’s gross medical specials solely because your client is so poor that she qualifies for Medicaid in Florida.

medicaid medicare

Now consider this second hypothetical:

A. Same facts as above, except that your client is a Medicare beneficiary.2

B. In other words, defense hopes to erase 97 percent of her boardable specials solely because your client is so old that she qualifies for Medicare.

What do you do now?

I. Gut the “Windfall” Project

First, you will want to completely gut that misleading “windfall” argument.

Defense counsel’s most persuasive pitch is also the most obvious one. Namely, he will whine to your judge that “it’s just not fair” that the plaintiff gets a shot at recovering all of her past medical expenses before the jury “when she really only owes X.” What defense counsel is doing here is redefining the purpose plaintiffs show juries their gross medical specials to begin with as nothing more than an attempt at a double recovery.

Here’s what you say: your client is not requesting a windfall, but rather wants to present evidence of the actual past medical bills for four distinct purposes that have nothing to do with a cash grab:

1. To prevent the jury from hearing any evidence of a collateral source covering some or part of the bills;

2. To present evidence of the extent and seriousness of the plaintiff’s injuries;

3. To present to the court evidence of non-economic
damages; and

4. To avoid confusion.

II. Get to Know Joerg (Very, Very Well)

“I cannot agree that […] the compassion of charitable contributors and taxpayers should become a device for reducing the legal liability of a tortfeasor” wrote Justice Leander J. Shaw in his 1984 dissent in Fla. Physician’s Ins. Reciprocal v. Stanley.3 It would have taken 31 years, but a majority of the Florida Supreme Court may have finally agreed with him.4

In Joerg v. State Farm Mut. Auto. Ins. Co.,5 the Supreme Court found that payments from collateral sources and payments from government benefits such as Medicare and Medicaid are not admissible because such evidence may confuse the jury with respect to both liability and damages.

Critically, the Court held that the admission of any evidence of “social legislation benefits,” such as those received from Medicare, Medicaid, or Social Security, is highly prejudicial and constitutes reversible error.6 Thus, you must argue that prohibiting plaintiff from introducing the full value of her past medical bills into evidence will affect issues such as non-economic damages, and would “cheapen” and possibly reduce the value of plaintiff’s claims in the minds of the jury, thus giving the defendant a “benefit of the bargain” by way of a reduced verdict.

Ultimately, the prejudice plaintiff will face if the reduced medical bills are presented far exceeds any prejudice the defendant may encounter if the bills are not reduced for the jury. By allowing the defendant to benefit from collateral source payments during trial, the court would be penalizing the plaintiff for carrying health insurance. That penalty is compounded in the case of a Medicaid beneficiary because the restriction in boardable past medical bills defendant seeks would unavoidably reveal plaintiff to be indigent to the point of qualifying for Medicaid in the State of Florida. In other words, a future plaintiff in another case would be in a better position before the jury than your client in the instant case by virtue of either failing to avail themselves of health insurance coverage period, or by simply being in a better financial position than your client is so as to not qualify (or need) Medicaid.

It should be clear now that the ruling your opposing counsel seeks is actually disastrous public policy thinly disguised as “fairness” to his deep-pocketed insurer or corporate client.

III. Remind the Court System Isn’t Broken

Because each appellate jurisdiction and the Florida Supreme Court already allow post-trial set-offs and no decisive common law exists to exclude the introduction of relevant evidence to the jury in the form of actual medical bills incurred, the only possible reversible error your court could make regarding the introduction of the full medical bills would be if your court ruled for the defendant. Additionally, the defendant’s position would invite errors through the introduction of health coverage from “social legislation benefits” (Medicare and Medicaid), which may happen should your court allow defendants to prevail in their introduction of reduced medical bills.

IV. Conclusion

In this post-Joerg world, no Florida state judge should be seriously considering slashing your client’s boardable medical specials just because age or poverty, or the combination of the two, afford her “social legislation benefits.”

But, if you are an FJA member facing this issue, I hope this article gives you hope. For more information, including additional resources, feel free to contact me directly at or through one of the FJA’s excellent listserv communities.

1Special thanks to my law partner, Michael K. Bailey, members of FJA’s affiliated listservs, as well as TLEL, for not only their contributions to this article, but to my own success in litigating this issue before Florida courts. “If I have seen further than others, it is by standing upon the shoulders of giants” – Isaac Newton

2Medicare and Medicaid are the same animal for the purposes of Florida’s Collateral Source Rule. See Section 768.76(2)(b), which states “Notwithstanding any other provision of this section, benefits received under Medicare or any other federal program providing for a Federal Government lien on or right of reimbursement from plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.” (Emphasis added)

3452 So.2d 514, 517.

4There are four other recent Florida opinions that address the function of the collateral source statute at trial you need to be aware of. In addition to Joerg, as discussed herein, these opinions include the Supreme Court’s decision in Goble v. Frohman, 901 So.2d 830 (Fla. 2005) (AKA “Goble II”); Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003) (AKA“Goble I”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (4th DCA 2003); and Sheffield v. Superior Insurance Company, 800 So.2d 197 (Fla. 2001). After a careful analysis of these cases, you will want to argue that the court should deny defendant’s Motion in Limine because: 1) it does not correctly interpret the law in Florida regarding the collateral source rule and exclusion of collateral source reductions from evidence (specifically Medicare and Medicaid); 2) plaintiff’s arguments are consistent with the practices set forth in Florida case law, which allow into evidence the full amounts of medical services billed with set-off for collateral source reductions to occur post trial, if the defendant can prove a health benefit is a “collateral source” under the meaning of the statute at such post-trial hearing; 3) denying defendant’s Motion in Limine would prevent the defendant from circumventing the law in Florida under which set-offs cannot be applied to future damages; and 4) plaintiff can present all of the evidence of past medical bills incurred for other purposes than a “double recovery,” i.e., to avoid confusion in the jury box (described above).

5176 So.3d 1247 (Fla. 2015).

6See id.

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