I recently participated in a Continuing Legal Education program organized by the New York State Trial Lawyers Institute entitled “Affordable Care Act and Future Medicals”. From its adoption, the Patient Protection and Affordable Care Act (“ACA”), also known as Obamacare, has been and continues to be politically controversial, particularly so in the run up to the 2016 Presidential Election, with most Republican candidates vowing to dismantle it if elected, Hilary Clinton promising to expand on the programs put into place under Obamacare, and Bernie Sanders looking to create universal healthcare coverage by expanding the Medicare program. The ACA is no stranger to the legal system, being the subject of a landmark 2012 Supreme Court decision in which the constitutionality of the individual mandate and its corresponding tax was upheld.
Not surprisingly, Obamacare has found its way into the legal arena again, but this time as it relates to personal injury cases and Plaintiffs’ rights to recover for the cost of future medical care. Defendants around the country are beginning to present arguments to courts that they should not be held accountable for future medical damages, as Plaintiffs are entitled to purchase a policy of insurance under the ACA that pays for such care. Aside from the argument that a negligent party should not be excused from its responsibility by reliance on the subsidized coverage of the ACA, there are several other reasons why courts should reject Defendants’ efforts to limit their liability for future medical expenses by relying on the ACA.
The future of Obamacare is uncertain, and it is likely following the next presidential election that Obamacare may not exist at all, or may exist in a very different format. Plans that are available for purchase on the exchange currently may not be available in the future. Plans may not cover certain elements of care that a Plaintiff may require, and even if plans currently do cover certain care, there is no guarantee that they will in the future. Although the ACA includes an annual out-of-pocket limit, this limit relates only to essential services provided by in-network providers in a participant’s own plan and is not a guarantee that the cost of future care required will be capped at that out-of-pocket limit. The essential benefits mandated to be covered by the ACA are vague and it is left to the states to complete the details. If a plaintiff switches plans or moves to a different state, his or her coverage might be affected. In addition, although Obamacare provided health care coverage to millions of individuals not previously insured, certain categories of individuals are not required to purchase a plan under the ACA. Many have chosen to opt out of purchasing health care coverage because the option of paying an annual tax is less expensive than the option of purchasing a plan. Additionally burdening a jury with complicated evidence regarding the ACA, the plaintiff’s right (or obligation) to purchase a plan, the types and cost of available plans, what elements of the Plaintiff’s future care each plan would cover, etc., will lead to lengthier and more expensive trials and will ultimately prejudice the Plaintiff.
Courts around the country have begun to grapple with this argument. In New York, my partner, Andrew Dupont and I recently addressed this issue in a case involving significant future medical expenses where the Plaintiff was a Medicare recipient. Defendants notified us of their intent to call an expert witness to present evidence to the jury that our client should not obtain damages for future medical treatment because he could purchase a health insurance plan under the ACA, an argument which was incorrect on its face since our client, as a Medicare recipient, was not entitled to purchase an ACA plan. We filed a motion to preclude such evidence and the trial judge barred the expert from testifying on the basis that evidence of insurance coverage under New York law is prejudicial and should not be introduced to a jury.
However, in the future, we should be expecting that Defendants will be looking to rely on testimony in post-trial collateral source hearings to reduce their obligation to pay those portions of jury verdicts that compensate for future medical expenses. Although the common law dictates that juries should not take into account payments from collateral sources to cover damages, such as health insurance payments, the New York legislature enacted CPLR 4545, an exception to the common law collateral source rule, which allows Defendants to obtain a reduction in damages for future medical expenses in personal injury cases “where a future cost or expense will…, with reasonable certainty, be replaced or indemnified…from any collateral source, except for those payments…for which there is a statutory right of reimbursement.” As discussed above, it is impossible to say “with reasonable certainty” that a Plaintiff will be entitled to have all of the cost of his or her future medical care covered by a policy of insurance under the ACA. Further, the ACA is currently silent as it relates to subrogation rights, and there is a possibility in the future that health insurance companies who issue ACA policies may be entitled to seek reimbursement for its expenditure, similar to Medicare and Medicaid.
Defendants have long sought ways to shift their responsibility for paying for damages for their culpable conduct, including through lobbying efforts for caps on damages, etc. This is one more potential weapon in their arsenal that we as attorneys representing the rights of injured victims need to be aware of and need to be prepared to fight.