One of the battles that rages in every personal injury cases is over the “boardables” – which includes the amount of medical expenses that a plaintiff can present to a jury as part of their damage claim.  As anyone who has reviewed an Explanation of Benefits form knows, there is a dramatic difference between the amount a medical provider bills and the amount they are reimbursed by a medical insurer or Medicaid.  So which of those amounts should be presented to a jury?

That issue was at the forefront of Charles v. Thomas, M.D., et al., which involved a cardiopulmonary arrest following a routine ENT procedure which lead to a variety of debilitating conditions. Prior to trial, the defendants moved to limit the plaintiff’s presentation on damages to the amount Medicare actually paid for the plaintiff’s medical treatment – versus the amount the providers billed – arguing that the significantly lower figure properly represented the plaintiff’s incurred loss.

The plaintiff opposed the defendants’ motion on the theory that the amount the medical providers billed reflected the incurred loss and should be admissible to “more fully inform the jury as to the extent of Plaintiff’s injuries resulting from his heartbreaking ordeal.” In siding with the defense, the judge distinguished between insurance payments, which would be deducted from any award consistent with New Jersey’s collateral source rule, and Medicare payments, costs which plaintiffs are required to reimburse. Citing in part to the “made whole” principle, the court determined that the “incurred loss” was the amount the plaintiff actually owed Medicare for his treatment, and the plaintiff was limited to presenting only that figure in support of his damages claim.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.