Do life care planners have to take into account the impact of the ACA when calculating future medical expenses?
This issue is now of real concern to all life care planners.
In the April 2015 issue of For the Defense entitled The ACA and Market-rate Predictably for Future Damages, attorneys Miller and Sullivan argue that the ACA must be considered and state “the common testimony of plaintiff’s damages experts that there is no guarantee that health insurance coverage will be available for a plaintiff in the future is unfounded…” The failure of plaintiff’s experts to account for the ACA in calculating life care plans arguably renders their testimony subject to a Daubert type challenge for lack of foundation and reliability.”
All courts that have considered this issue to not necessarily agree with this argument. The most recent case on this issue is Pannacciulli v. Beloff, Superior Court, New Jersey Law Division, Bergen County Docket #BER-L-845-12 (January 22, 2016).
In this case, the court dealt with this issue and concluded:
The argument postured by the Defendants that Ella will receive benefits under the ACA does not demonstrate that Ella will in fact receive these benefits with any reasonable certainty. The Defendants rely on unpublished trial court decisions from other jurisdictions, including California, which do not have any precedential value in this jurisdiction and do not interpret New Jersey’s Collateral Source Rule. More importantly, Ella’s right to receive such benefits is likely subject to policy changes, as Congress has sought to repeal and/or undermine the ACA over fifty times. Additionally, longevity of the ACA is overwhelmingly called into question by the upcoming government election. Furthermore, even if, arguendo, the ACA remains in effect for thirty (+) years, Ella’s entitlement to receive such benefits and the amount that she may be entitled to receive is merely speculative.
Finally, the Court is not convinced the negligent professional should be exculpated by coverage afforded from the subsidized coverage of the ACA, or that the ACA may not be entitled to a recoupment at some future time from such tortfeasor.
The Defendants’ next argue that the Plaintiffs should be barred from offering an expert opinion concerning future medical expenses because the offered expenses are not fair and reasonable. The Defendants maintain that the invoiced figures submitted by medical providers are speculative and do not reflect actual cost. Additionally, the Defendants contend that the Plaintiffs’ future medical costs are calculated based on what a provider charges rather than what the Plaintiff will actually receive or what is actually incurred. Here, the Defendants’ argument is equally unpersuasive. The Defendants’ argument is a play on semantics and does not prove that the Plaintiff will not incur the charges or that these charges are not reasonable. Simply because the Defendants, or healthcare facilities, could obtain complete or reduced reimbursement from an insurance carrier and bill the Plaintiff a lesser amount for medical services does not warrant barring the Plaintiff from offering an expert opinion concerning future medical expenses.
In accordance with the foregoing reasons, the Defendants Valley Hospital’s Motion seeking to limit the Plaintiff’s claim for and evidence of future medical expenses is DENIED.
Defendant Beloff’s Motion to Limit the Plaintiffs’ Claim for and Evidence of Future Medical Expenses.
THIS MATTER has been brought before the Court by way of motion filed by Michael S. Levenson, Esq. from the law offices of Marshall, Dennehey, Warner, Coleman & Goggin on behalf of the Defendant, Michelle L. Beloff, D.O. (hereinafter the “Defendant Beloff”), seeking an Order of this Court limiting the Plaintiff’s claim for and evidence of future medical expenses on similar substantive grounds asserted by the Defendants Valley Hospital. Thomas F. Rinaldi from the law offices of Eichen Crutchlow Zaslow & McElroy, LLP filed an opposition on behalf of the Plaintiffs. The Court, having considered the written submissions, declares that Defendants Beloff’s motion is denied for the reasons stated above. The Defendant Beloff’s argument that Ella will receive benefits under the ACA fails to demonstrate that Ella will in fact receive these benefits with any reasonable certainty. The Defendant Beloff again relies on unpublished trial court decisions from other jurisdictions, which do not have any precedential value here and do not interpret New Jersey’s Collateral Source Rule.
In accordance with the foregoing reasons, the Defendant Beloff’s Motion seeking to limit the Plaintiff’s claim for and evidence of future medical expenses is DENIED.
All life care planners need to be aware of the ACA issue and discuss with counsel if counsel will be filing a motion in limine to resolve this issue before trial.