The Collateral Source Rule and Obamacare

The Collateral Source Rule is a legal doctrine holding that the damages being asked for by a plaintiff should not have payments coming from a source other than the defendant deducted from the damages the defendant would otherwise have to pay. The origins of this rule lie in the common law whereby the jury was forbidden from considering evidence of the plaintiff’s health insurance in covering some of the future medical expenses emanating from the defendant’s negligence.


It seems like this rule would allow the plaintiff who has health insurance get a windfall if he wins the malpractice suit. The insurance and the defendant would both be paying for the same projected future health care costs which were due to the injuries. As a physician, this rule seems to be, on its face, unfair. A look at the history of the rule is warranted.


The Collateral Source Rule comes from common law which dates back to the nineteenth century. At that time, health insurance was rare and those that had it paid for the premiums out of their own pockets. The courts felt that there was a strong public interest in having health insurance and they did not want to penalize people who had the insurance by decreasing their medical malpractice damages by the amount paid for by the insurance. The problem with the common law was the potential for the plaintiff of obtaining a double-recovery for the future medical expenses calculated in the damage claim of the malpractice suit.


As more people obtained health insurance, especially from employer plans, the strong public interest in getting people to get coverage became less of an issue. In a quest for fairness, some states passed collateral source statutes which aimed to prevent the double-recovery of damage claims. Under these statutes, the jury was still prevented from hearing evidence of health insurance coverage when deciding on the damage award. However, after the jury verdict, the defendant is allowed to present evidence of collateral sources of payment before the judge. The judge would then be allowed to reduce the jury award by an amount that was “reasonably certain” to be covered by the insurance policy.


With the passage of the Affordable Care Act (ACA) in 2010, the near universal health coverage mandates takes away the need of the Collateral Source Rule. Juries should now be allowed to hear evidence of health care coverage when evaluating the damage award in a malpractice action. The public interest of incentivizing individuals to purchase their own health care insurance is now gone; the ACA now requires the purchase of health care insurance and those who do not are subject to penalties (a tax?).


Although the Collateral Source Rule still stands, it is likely that future litigation will attack the Rule. There is a case on point. In Aidan Ming-Ho v. Verdugo Hills Hospital, a medical malpractice case, the jury gave the plaintiff the verdict and awarded damages which included future medical costs. The hospital argued, on appeal, that it should have been allowed to present evidence of the plaintiff’s health insurance coverage to rebut the claims for future medical expenses especially in light of the ACA whereby “the availability of such federally mandated available insurance options makes the prospect of future health insurance coverage for plaintiff anything but speculative.” Aidan Ming-Ho Leung v. Verdugo Hills Hospital, 2013 WL 221654 (CA Ct. App., 2013)


The Leung court was not convinced. The court held that “such evidence, standing alone, is irrelevant to prove reasonably certain insurance coverage…because it has no tendency in reason to prove that specific items of future care and treatment will be covered, the amount of that coverage, or the duration of the coverage.”


Health insurance policies may differ as to what is covered, how much will be paid for the health care, and the duration of the coverage. There are caps to some policies and the court recognized this. Both the duration and the quality of health insurance policies were variable and could be changed by the carrier at any time. The fact that the patient had medical insurance did not guarantee that his future medical expenses would be met.  It made sense to keep this information from the jury.  Rather than penalize the patient with poor health care coverage, the jury would be better off not knowing that the patient even had coverage.


However, under the ACA, there is a certain minimum amount of coverage that must be in the policy. Also, the policy has no ceiling of benefits and the policy can attach to the patient forever. As such, it makes sense to argue that the coverage that must be provided under the law should now be presented to the jury prior to making their deliberations. The strong public policy of encouraging patients to obtain health care is fast becoming a non-issue as most people are now required to get a policy or be covered under Medicare or Medicaid.


The issue addressing the necessity of the Collateral Source Rule will likely be litigated in several courts in the near future. Plaintiffs will argue that the Rule is still needed as the long-term viability of the ACA is still unknown.  Insurers are leaving the market as their losses are significant, people are going without health insurance as their co-pays and premiums are going up, and there are only minimal penalties to holding off on buying insurance until an illness or injury strikes.


At this time, there is uncertainty that the ACA will survive both from a financial and a political standpoint.  If a Republican elected to the Oval Office, the ACA may be overturned. This is especially likely if the House and Senate remain in republican hands. If the insurers continue to leave the market due to financial losses, there will be a complete collapse of the system.  As long as the future of the ACA is uncertain, it is unlikely that the courts will see fit to revisit the Collateral Source Rule. Perhaps it would be best to keep the knowledge of a health insurance plan in the hands of the judge anyway.



by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 


Subsidy Funding of Insurers under Obamacare

This article by Dr. Weiman also first appeared on Huffington Post on June 13, 2016.


No Money shall be drawn from the Treasury, but in Consequence of Appropriation made by Law… Article I Section 9 of the United States Constitution


A federal court judge has recently ruled in favor of the House of Representatives in a lawsuit which challenged the Obama administration’s funding of subsidies for insurers who were providing health care policies on the exchanges. John Boehner pushed for the lawsuit when he was Speaker of the House; he felt it was an overreach by the Obama administration which was paying the subsidies to insurance companies without the appropriate funding passed by

Congress. The Congressional Budget Office estimates that this funding would be about $130 billion from 2017 through 2026.


This case was also argued on a “standing” basis. Judge Collyer held that the Congress was injured when the administration paid the subsidies. The “power of the purse” is a practical way for the Congress to exercise its check of the Administration. Without this power, they would be harmed; thus standing was affirmed.


One of the linchpins of our Constitutional republic is the separation of powers. Article I of the Constitution gives the sole power of spending to Congress. This “power of the purse” was meant to be a critical check against tyranny. If the President were to have the power to legislate (designate how money from the Treasury would be spent) along with the power to enforce the laws, then he could essentially ignore Congress altogether. He would have the power of a dictator, not a president. This is what the Constitution was meant to prevent.


The Obama administration had argued that they were trying to faithfully implement the law and the funds they were using were in another section of the law dealing with subsidies to reduce the cost of health care insurance.


Under Section 1401 of the Affordable Care Act (ACA), the insurance companies that were participating in the exchanges were required to provide discounts to eligible lower income people who were purchasing health insurance.  Under Section 1402 of the law, no money had been allocated for the insurance companies themselves although they had been promised subsidy support. This is not the first time that Congress had promised financial support but failed to allocate the necessary funds needed for the support. In fact, this seems to be a common occurrence; see “unfunded mandates”.


Even without the money from Congress, the administration decided to pay these subsidies anyway. The insurance companies were losing billions of dollars and they were threatening to leave Obamacare if this support was not forthcoming.


In a way, President Obama challenged the Congress to file this suit when he taunted them with his statement that “I’ve got a pen and I’ve got a phone.” He seemed willing to challenge the concept of the “separation of powers” and provide the money from a different section of the ACA which Congress had only allocated for tax credits for some eligible people who were

purchasing policies on the various state exchanges. There was no explicit funding of the subsidies in this section.


In her decision, Judge Rosemary Collyer wrote that the “Affordable Care Act unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers.” The Obama administration had argued that this appropriation could be “inferred” but that claim was rejected by the judge. Laws must be very specific when they relate to appropriations coming out of the United States Treasury.


Under Judge Collyer’s ruling, Health and Human Services (HHS) has been enjoined from paying subsidies to the insurers but she stayed the order pending the expected appeal of the Obama administration. It is foreseeable that the insurance carriers will not wait for a final decision as their costs are rising significantly. They will either raise their rates or they will leave the exchanges altogether. In fact, this is already happening.


Judge Collyer recognized that she may be overruled on appeal. As such she stayed her injunction. However, without the payments from the government, the insurance companies will be facing significant financial losses.


Several carriers have already predicted they will need double digit increases on their premiums for 2017. These premium increases will be on top of premium increases that went into effect in 2016. With these increases, more people, especially the healthy ones, will be inclined to go without insurance and pay the penalty instead. Without the participation of these healthy people to off-set the costs of the older and sicker patients who will be using the insurance, the providers may not make it. No company can remain viable if they are likely to lose money on a continuous basis.


If the decision is upheld on appeal, then it is foreseeable that many insurance companies will have to raise their premiums, increase the deductibles of the policies, and/or withdraw from providing policies under the exchanges. In either case, the ACA will be significantly affected as many people will choose to opt out and pay the penalty (tax) instead of paying higher premiums for lesser policies. In light of “guaranteed issue” and “community rating” people will be inclined to hold off on buying health insurance until they need it; there is really no penalty for waiting so long as the penalty is less than the costs of the policies being offered.


In the unlikely scenario that the ACA is put in jeopardy with this decision, the republicans will be under a lot of pressure to get a viable alternative in place. If a democrat wins the presidency, a movement to a single party payer will likely occur.


Could the appellate court overturn the decision? Of course it can. The DC Circuit, which has historically sided with the Obama administration, is likely to do the same for this case. They can hold that the money appropriated under Section 1401 can be used to pay for the subsidies.


It would not be too much of a stretch to predict that the Supreme Court will also disagree with Judge Collyer. After all, in two previous Supreme Court decisions, Justice Roberts upheld Obamacare; first by equating federal and state exchanges. In the second case, Justice Roberts held that the penalty for not buying health insurance was allowed under the taxing power of the Constitution. Four justices felt this power was allowed under the Commerce Clause but Justice Robert’s was not willing to affirm on this basis.


The Supreme Court may have the final say as it often does. The Supreme Court is not last because it is right; it is right because it is last. There must be finality in the law or the litigation could go on forever.



by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 



The Affordable Care Act and Medical Malpractice Reform

This article by Dr. Weiman also first appeared on Huffington Post on June 04, 2016.


In Atlas Shrugged, written by Ayn Rand, a dystopian America is described. Health care is addressed in this novel. One of the characters, a prominent neurosurgeon decides to leave practice as opposed to losing his autonomy in patient care. For him, it was no longer worth it to be a physician.


The goals of health care reform are to ensure that everyone has access to high quality care and the care is affordable. Most providers believe that significant cost savings would be realized if there was meaningful tort reform. In fact, when the Affordable Care Act (ACA) was being formulated, there were numerous discussions relating to the limitation of future damages for patients injured by medical negligence, modification of the collateral source rule, and funding to the states for experimentation on litigation alternatives or substitutes.


Unfortunately, the only part of the ACA relating to malpractice reform to be passed was section 10607 of the Act which, “authorize[s] the Secretary of Health and Human Services to award demonstration grants to states for the development, implementation, and evaluation of alternatives to current tort litigation.” This section does not eliminate malpractice litigation; it will only look at alternative ways of resolving the cases. At this time, a health court model is being looked at in some states but the effects on malpractice cases are not yet known. It is also unknown if this model will still require a report to the National Practitioner Data Bank if all or part of the payment is due to the actions of the practitioner. I think the report will still be required so it is unlikely that the physician will change his tendency to practice defensive medicine. As a result, this section of the law is unlikely to result in a decrease in health care costs.


The risk to providers remains. Malpractice coverage will still be required to practice and losses can be catastrophic. Even if a verdict is within the limits of the coverage, the provider who is found liable will be reported to the National Practitioner Data Bank which could have significant detrimental consequences if he wants to move to a new practice or when his privileges are up for renewal at the facility where he presently practices.


With mandatory health insurance or Medicare and Medicaid, it was hoped that the 30 million uninsured in the country would now be covered. With a ban on lifetime payout limits and a prohibition on insurers from excluding patients with pre-existing conditions, the duration of coverage was also significantly increased. With more patients covered and covered for a longer time, it is foreseeable that more malpractice claims will result.


Despite the passage of the ACA, physicians and other health care providers continue to practice “defensive medicine” in hopes of better defending or even preventing future malpractice claims. By ordering more tests and doing more procedures in hopes of covering all the bases and not missing any significant diagnoses, the hope is to avoid any future litigation; the extra procedures and tests may not be in the patient’s best interests and some may even be harmful, but it will allow for an easier defense if faced with a claim.


There are several mandates under Obamacare which require significant expenditures on the part of health care providers. These expenditures have led to increased overhead costs which many, if not most, private practitioners are not able to meet. As a result, many providers are joining health care groups or hospitals whereby they become employees. The groups take care of the overhead costs and the providers are paid a salary.


One of the results of this practice model is that outpatient care and inpatient care is being divided. Patients are no longer the responsibility of a single practitioner. They may see a family practitioner in the office setting, but in-patient care will be provided by a hospitalist who has not yet had the opportunity to form a physician-relationship. The lack of this relationship is more likely to result in some animosity, especially if the hospital course does not go well. It cannot be good if the patient is viewed as a customer of the hospital as opposed to a person with whom there is a long-standing relationship. This inherent animosity will make it more likely to have a malpractice suit filed if the patient does not do well.


When a physician becomes an employee, they are expected to follow guidelines and protocols many of which were approved by Medicare. If the physician is able to meet certain benchmarks outlined in Medicare, they will be rewarded with a share of the savings. Failure to follow these guidelines can lead to economic penalties; the provider is faced with a dilemma—do what he feels is best for the patient or face decreases in pay and, perhaps, even the loss of his job.


If the patient suffers harm, a medical malpractice suit is likely to follow. Then there is the issue of malpractice premiums. If the employer is paying the premiums, will the lawyer hired to defend the case be answerable to the employer or the physician? If this is not spelled out in the physician’s employment contract, it is likely that he will need to hire his own attorney to be sure his interests are protected in the suit. This can be a significant expense.


The physician is caught in the middle. Too bad! The jury will not be sympathetic to the economic chains attached to the practice. The jury expects the physician to use his best medical/surgical judgment at all times. The standard of care is unchanged under the ACA; the physician will be expected to do what a reasonable physician would do if faced with the same or similar circumstances. I do not think that economic considerations will be entertained in this analysis.


With the changes in the health care environment driving many practitioners out of private practice, it is likely that we will see a rise in contract health care on a cash basis. For those who can afford it, this will be personalized health care with a known provider who will guarantee that he will provide the care needed as an outpatient and will guide the care needed in the hospital environment. The third party payers will be left out of this arrangement. We are already seeing this type of care with “concierge” practices and with “medical tourism”. The model has been established in cosmetic surgery and Lasik eye surgery. As for medical tourism, this model is already being offered, at very competitive rates, in several foreign countries for such things as heart surgery.


In the final analysis, it looks like the ACA has created a health care environment where it is more likely for the provider to be the target of a malpractice suit. Although alternative forms of resolution will be investigated, the target will remain the same.


Tort reform will likely be a slow process handled by the states. Physicians will vote with their feet. They will migrate to the states which have the more favorable laws relating to medical malpractice. States with unfavorable laws will be forced to change or be faced with a shortage of physicians. This scenario has already played out in Mississippi. In the meantime, health care costs continue to rise at a rate that exceeds regular inflation.



by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016.