Currently pending in the Florida Senate and House of Representatives – and seemingly flying under the radar – are identical bills which, if passed, would markedly decrease the amount of medical bills your client can board at trial. Gone may be the days where your client’s damages for medical expenses are represented by the amounts billed. Instead, the amounts paid, or the amounts usually and customarily accepted as payment – which are typically far less than the amounts billed – would go in front of the jury.
Here’s a breakdown of how House Bill 561 and Senate Bill 846 would work. They make two distinctions – (1) whether the plaintiff’s past medical expenses are paid or unpaid, and (2) whether the plaintiff has “health care coverage” – including, but not limited to, commercial health insurance, Medicare, Medicaid, Tricare, workers’ compensation, and personal injury protection (PIP).
- If the plaintiff’s past medical bills have already been paid by the time of trial, then the evidence of the amount of past medical expenses is limited to the amount paid, regardless of the source of payment.
- If the plaintiff’s past medical bills have not been paid by the time of trial, then the evidence of the amount of past medical expenses is limited as follows:
- If she has health care coverage, no more than the amount by which the charge may satisfied by such health care coverage, plus the plaintiff’s share of medical expenses under the insurance contract (e.g., premiums and deductibles).
- If she doesn’t have health care coverage, no more than the usual and customary amount, or the amount customarily accepted, as payment for the services by the plaintiff’s actual physicians and other physicians in the same geographic area.
- In determining this amount, the jury must consider the amount accepted by physicians in the same geographic area for identical or substantially similar services from the following:
- Workers’ compensation law
- Health insurance plans
- Cash payors
We need not fully explain the adverse effect that this pending legislation – which would create Fla. Stat. § 768.0427 – would have on your client’s boardable medical bills, as it’s readily apparent. But we note that, unfortunately, the adverse effect isn’t limited to that single element of damages. As referenced in this Bill Analysis, awards for medical expenses often have a direct relationship with awards for pain and suffering; when the former is high, the latter is commensurately high.
In addition to these concerns, the pending legislation could also require expert testimony regarding the usual and customary amount, or the amount customarily accepted, as payment. If the parties can’t stipulate to an admissible range for such amounts, the jury would hear testimony from dueling experts, possibly resulting in a trial-within-a-trial, and certainly resulting in increased costs for both sides.
Finally, if you want to settle your case at mediation, or any other time before trial, you’ll inevitably need to know the amount of medical bills that your client can board at trial. Thus, your need for the expertise of a certified medical biller and coder could arise more quickly than you think.
Fortunately, if this pending legislation is adopted, Global Litigation Consultants will be here to help. We’ll continue to offer medical billing summaries, and we’ll complement that service with appropriate expert analysis to help you calculate the amount of past medical expenses you can admit at trial.
We’ll continue to monitor the progress of this pending legislation. Please feel free to contact us for updates or other questions.