How much past medical expenses can a plaintiff present to the jury when they are a Medicare beneficiary? The short answer: only the amount of previous medical expenses the claimant is required to pay, not the gross amount billed by the medical provider(s). What if the claimant is a Medicare beneficiary but their medical providers have not submitted case-related bills through Medicare? This situation is more complex, but ultimately the answer is also simple: if the medical provider has not properly opted out of Medicare, the claimant is unable to collect an amount. past medical expenses greater than the Medicare reimbursement rate.
Since the Florida Supreme Court decision in Joerg vs. State Farm Mutual Automobile Insurance Co.’, trial courts have reached inconsistent results on whether to allow plaintiffs to ‘onboard’ evidence of total gross medical expenses spent at trial or only allow medical expenses actually paid after trial. application of Medicare rates. In Joerg, the Florida Supreme Court ruled that the trial court properly excluded evidence of future benefits from Medicare, Medicaid, and other social legislation as collateral sources.2
Trial court orders that allow proof of gross medical expenses rely heavily on Joerg, while orders limiting the boarding of full medical expenses are based primarily on Thyssenkrupp Elevator Corp. vs. Lasky’ Or Cooperative Leasing, Inc. v. Johnson.4
Editor’s note:
The Florida Supreme Court recently clarified the law regarding proof of past medical expenses: where a plaintiff’s past medical expenses were paid by Medicare or similar programs, the jury may consider the amount actually paid, not what that medical providers billed. As explained here, the issue remains complicated when an applicant is eligible for Medicare but medical providers have not billed through Medicare.
In Thyssenkrupp, the defendant sought a reduction in a jury’s award of medical costs, arguing that, as a matter of law, the plaintiff would never have to pay the difference between the amount billed by the provider and the amount the provider accepted from Medicare .5 The Fourth District agreed and found that the defendant was entitled to have past medical expenses the jury awarded reduced by the difference between the amount billed by a provider and the amount Medicare actually paid that provider. The court held that allowing the admission of evidence of the excess discharged by Medicare payment would have the effect of “providing an undeserved and unnecessary boon to the plaintiff.” The court relied on Florida Physician’s Insurance Reciprocal v. Stanley,8 that had evidence of free or low-cost medical services available to people with specific disabilities did not violate the collateral source rule. Stanley in turn relied on Peterson vs. Lou Bachrodt Chevrolet Co., who held that in the situation where the injured party incurs no expense, obligation or liability, there was no justification for adhering to the collateral source rule because it would allow the plaintiff “to exceed the compensatory limits in the interest of ensuring an impact on the defendant.
In Dial c. Calusa Palms Master Association,i° the Florida Supreme Court recently clarified the applicability of Joerg. In Dial, Before trial, the trial court granted an in limine motion barring the plaintiff from presenting evidence of the gross amount of her past medical expenses and limiting her to presenting only discounted amounts paid by Medicare. The jury awarded the plaintiff $34,641.69 in prior medical expenses; the plaintiff appealed, arguing that Joerg had allowed her to present proof of the total amount of her medical expenses. The Second District Court of Appeals certified a matter of great public importance regarding whether Jörg applied to previous medical expenses.12 The Florida Supreme Court answered the question in the negative, stating Jörg “addressed only future medical expenses” and did not apply to the issue of past medical expenses.13
Below Dial, there is no doubt that where a plaintiff’s past medical expenses have been paid for by a program such as Medicare, the plaintiff can only submit to the jury the amount that was paid, not what the medical provider has Invoice.
Another contentious issue is how much a plaintiff can present to a jury when he is eligible for Medicare, but the medical providers he deals with have not submitted bills through Medicare.
The Medicare program consists of two parts. Part A is a mandatory program that insures elderly and disabled people against hospital costs and certain post-hospital care.14 Part B is a voluntary program that provides additional coverage for other health care costs, including physician services.15 Under current law, physicians have three options for how they can bill a Medicare patient and must choose one each year: ‘They can enroll with Medicare as a (1) participating provider, (2) non-participating provider or (3) an opt-out provider.
Participating physicians agree to accept an assignment of each beneficiary’s claim and not to charge more than the amount specified by Medicare as full payment for services rendered.17 Non-participating physicians may choose, on a case-by-case basis, either to bill the patient directly, which requires the patient to be subsequently reimbursed by Medicare, or to accept a assignment of the patient’s claim in the same manner as a participating physician.18 Whichever option a physician chooses, the provider must submit the bill to Medicare within one year of the service provided, and must complete and submit an application for that service on a standard application form specified by the Secretary to the Carrier on behalf of the Beneficiary.19
The final option for a physician is to be an “opt-out provider”. A physician may enter into a private contract with a Medicare beneficiary under which no claim for payment will be submitted to Medicare. The contract must be in writing and signed by the recipient before any item or service is provided under the contract.2° Additionally, an affidavit must be in effect for the period any item or service is to be provided under the contract, provided the physician or practitioner submits no claims for a period of two years.21 Failure to opt out properly means the election is null and void and the doctor must submit claims to Medicare.22 The Health and Human Services Secretary admits that very few doctors will be willing to opt out of Medicare and generally agrees that the two-year restriction “represents a significant barrier to receiving contracted services”.23
Therefore, since relatively few providers participate in the opt-out option, most are required to submit their patient bills through Medicare for patients who are Medicare beneficiaries. If they don’t, the plaintiff is only allowed to present to the jury the amount that Medicare would have billed had her bills been submitted to Medicare, as the doctor was required to do by law. This is consistent with the reasoning that it would defeat the public purpose of reducing health care costs to allow inflated damage recoveries to remain unabated.24
This article originally appeared in Trial Advocate, Volume 42, No 1, a publication of the Florida Defense Lawyers Association and is republished here with permission.
176 So. 3d 1247 (Florida 2015).
2 Identifier. at 1257.
- 868 So. 2d 547 (Florida 4th DCA 2003).
4 872 So. 2d 956 (Fla. 2d DCA 2004). - Thyssenkrupp, 868 So. 2nd at 549.
Identifier. at 550 (quoting Cooperative Leasing Inc. v. Johnson, 872 So. 2d 956
(Fla. 2d DCA 2004)).
- 452 So. 2d 514 (Florida 1984.)
B 392 NE2d 1 (III. 1979).
9 Thyssenkrupp, 868 So. 2d at 550 (citing Stanley, 452 So. 2d at 515).
1° 337 So. 3d 1229 (Florida 2022).
11 Identifier. at 12:30 p.m.
12 Dial against Calusa Palms Master Ass’n, 308 So. 3d 690, 692 (Fla. 2d DCA 2020).
13 337 So. 3rd at 1231.
14 42 USC §§ 1395-1395i-4 (citing Stewart v. Sullivan, 816 F. Sup. 283, 284 (DNJ 1992).
15 42 USC §§ 1395j-1395w-4 (citing Stewart v. Sullivan, 816 F. Sup. 283, 284 (DNJ 1992).
16 42 USC §§ 1395u(b)(4).
17 Stewart, 816 F. Sup. At 284.
18 Identifier.
19 42 USC §§ 1395w-4(g)(4)(A).
20 42 USC §§ 1395(b)(2)(a)(i).
21 42 USC §§ 1395(b)(3)(B).
22 42 CFR § 405.430(b).
23 United Senators Ass’n c. Shalala, 182 F.3d 965, 969 (DC Cir. 1999).
24 Thyssenkrupp, 868 So. 2d at 550