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How health insurance confuses the jury

posted by Christian Ashin & Brown on: 10/04/11 in category: Trials | tags: ,

I have noticed an increasing amount of confusion with civil juries over health insurance. It seems that the jury in a civil trial makes the incorrect assumption that a plaintiff’s medical bills are all paid by health insurance; therefore, any money they award for past medical bills will go directly to the plaintiff. This is wrong on several fronts.

First, for example, let’s say a person who has been injured by someone else’s negligence receives medical treatment. That medical treatment is then paid for by the person’s health insurance. When the person collects from the “at fault” party, the health insurance company has a “subrogation” interest in that settlement. This means that the injured party actually has to pay the health insurance company back out of the proceeds of settlement. When I advise clients of this “subrogation” interest, their first reaction is “that is not fair; I pay health insurance premiums for that coverage.” While I certainly agree with that sentiment, the reality is that, thanks to the health insurance company paying big bucks for expensive lobbyists, the Maryland State legislature has enacted laws to protect the health insurance company’s ability to get their money back.

So getting back to jury confusion. Let’s say the jury awards $15,000 for past medical expenses thinking the plaintiff will get that money. Well, if health insurance pays those bills, they are entitled to recover their lien, so the plaintiff ends up with nothing.

Second, the plaintiff may be one of the large minorities of Americans who has no health insurance and owes the entire amount of past medical expenses. So, using our example, the jury awards 15k to the plaintiff, the plaintiff receives nothing since the medical bills are still outstanding.

So what does the attorney do to try to offset this confusion? I personally try to make sure the jury follows the instructions given by the Judge. The Judge will instruct the jury to follow the “Collateral Source” rule. The rule provides that a jury should NOT take into account or assume that health insurance has paid any of the past medical bills. Also, I try to make sure the jury understands that “noneconomic damages” are not a bonus, but are damages that are important in order to make the plaintiff “whole” after an accident that was not their fault.

What are “noneconomic damages” you ask? Tune into the next installment of the Christian, Ashin & Brown, P.C. blog to find out.

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Brian Timian, Esq.

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