Are Future Damages a Thing of the Past?

The defense de jour is that the Affordable Care Act (ACA) will pay for future damages and therefore, all future damages should be significantly reduced. Of course, this defense fails to account for the fact that the ACA comes under fire almost daily, that the available coverage under the ACA may decrease, and that the ACA may be so underfunded that it is unsustainable. Finally, and most importantly, the argument fails to account for the fact that purchasing insurance under the ACA is voluntary.

The ACA is a law that allows people to purchase insurance – plain and simple. It is not magic. It does not suddenly insure everyone for all medical expenses. There are no guarantees it will be around next year.

The Insurance Company Plan

Insurance companies and defense attorneys are creating a tort reform that people will understand, they will believe, and they will buy into. This is a planned attack on victims’ rights. The defense can forum shop in an effort to get favorable rulings, which they will then attempt to use to sway other Courts around the country. The defense arguments vary by state, but there are several themes that are being argued.

1. The ACA covers future medical expenses, so the defendant should only have to pay for the cost of the insurance and the $6500 out of pocket deductible.

This argument is flawed for several reasons. Injured persons have purchased insurance, or received government provided insurance, for years. This is not a new phenomenon. Why should an injured person now only be entitled to compensation for the cost of insurance and a copay? This argument is further flawed because it doesn’t consider that many, and maybe most, items necessary for lifelong care are not covered under the ACA plan. Covered care includes: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventative and wellness services, chronic disease management, and pediatric services including oral and vision care. Care not by an ACA plan includes: attendant care, long term care, alternative medicine (for example, chiropractic, acupuncture), cosmetic surgery, or weight loss surgery.

However, these are all vague statements about what actually is covered under insurance plans. How will anyone be able to determine which modalities of treatment will be covered? Also, any out of network treatment will not be covered at all.

2. The ACA is/is not a collateral source.

Which side of this argument the defense will take depends on your state law. If the collateral source rule helps them, the defense will argue that the ACA insurance plan is a collateral source. In Michigan, the defense has admitted that the ACA is not a collateral source. In Colorado, they attacked a verdict claiming the ACA is a collateral source.

3. The defense will hire an “expert” to find the best ACA insurance plan in the country and compare your life care plan to the ACA plan to see what is covered. With the ACA plan, your life care plan is worth pennies on the dollar – even if the ACA plan could never be purchased by you.

The defense has begun to name so-called “experts” on the ACA. I am not aware of anyone being deposed, so exactly what these “experts” will say is unknown. Is anyone an expert on the ACA? Can anyone predict whether it will even exist past the next election? With good preparation, this named witness should be easily dismissed as an expert!

4. The defense will try to argue to the jury that the ACA should reduce damages. This is the most popular claim at present and it being argued around the country. It has been largely unsuccessful.

This is currently the predominant argument being made around the country. Either plaintiff’s counsel is moving to preclude evidence of the ACA, or the defense is moving to allow it. The defense is dubbing this the response to the Reptile. They want the jury to see that attorneys are asking for many millions of dollars for medical bills that will all be paid for by insurance.

They want the jury to see “greedy lawyers” asking for millions of dollars for expenses that will not be paid.

WHY IS THE DEFENSE FAILING? WHAT ARE THE PLAINTIFF’S ARGUMENTS?

1. There is no guarantee, and in fact, no strong likelihood that the ACA will survive the next election.

As noted above, the ACA comes under fire regularly – both in the political arena and the business world. Insurance companies are threating to leave the ACA marketplace because compliance is expensive.

2. The plaintiff doesn’t have to buy/is ineligible to buy the insurance. They can opt out.

In essence, the defense wants to avoid liability by forcing people to buy what could be substandard insurance. Only U.S. citizens are covered by the ACA. Depending on your level of poverty, the sanction for not purchasing insurance does not even apply—leaving the poorest Americans still without coverage.

3. Nobody knows what is covered today or next year.

It is not possible to know whether each and every expense is covered by ACA insurance plans today, because every plan is different and the plan that a person has today, could change tomorrow. Further, with plans changing, doctors coming and going from networks, and insurance companies looking to reduce their risk, there cannot be any reasonable expectation for what will be covered in the coming years. The ACA insurance plans may not even exist.

4. Liens and passing the buck.

Like other insurance plans, whether private or government, there will be insurance liens on cases that will need to be reimbursed. Why should defendants who have caused harm to others, be able to force others to pay for their negligence. The defendant should accept personal responsibility, step to the plate and own that they should pay for these future medical expenses --- not pass the buck to the community.

Conclusion

The bottom line is that the ACA plan is simply an insurance plan – like any other plan, and should be treated the same. Liens will still exist. Co-pays and deductible will still be around, and will probably grow larger over time.

We all know that insurance companies deny medical claims, make getting in-network treatment very difficult, make mountains of paperwork to discourage claims, and do many other things that are barriers to coverage.

We also know that insurance plans change and what is covered today may not be covered tomorrow. We also know that not everyone will have the benefit of being insured. We know that some doctors, who we need, or want to see, will refuse to take certain insurance plans. We also know that fairness dictates that we should be allowed to see the doctors of our choice and be treated at the hospitals of our choice – and not have doctors forced upon us.

Finally, we know that if you do a wrong, under the law, you should be responsible. At fault defendants should not be allowed to force the community to pay for their mistakes.

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