We recently reported on pending legislation which, if passed, would markedly curtail the amount of past medical expenses a plaintiff can present to a jury in Florida. At this time, it looks like House Bill 561 and Senate Bill 846 will die with the ending of the 2021 legislative session in early May. But it also looks like we’ll get some guidance on these issues from a different source – the Florida Supreme Court – at least with respect to past medical expenses of Medicare recipients.
On April 26, 2021, the Florida Supreme Court accepted jurisdiction of Elaine Dial v. Calusa Palms Master Association, Inc., which reached the Supreme Court after the Second District Court of Appeal certified the following question of great public importance:
Does the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury’s consideration of future medical expenses, also apply to past medical expenses?
The Second DCA answered this question in the negative, as it was bound by its prior holding in Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004). In that case, the Second DCA held that the plaintiff should have been limited to introducing, as evidence of the amount of her past medical expenses, only the amount that Medicare paid (versus the total amount of her medical bills).
Although the Second DCA was not convinced that Joerg implicitly abrogated its ruling in Cooperative Leasing, it nevertheless felt compelled to certify the foregoing question for a couple reasons. The first was the frequency with which the issue arises in negligence cases. The second was the need for the state’s highest court to strike the appropriate balance between the competing policies at play – limiting evidence of collateral sources to avoid jury confusion versus permitting evidence to assist the jury in determining the “reasonable value” of medical expenses.
In addition to these reasons, the Florida Supreme Court also had the opportunity to ponder data offered by Mrs. Dial, the appellant, in her jurisdictional brief. Specifically, Mrs. Dial cited to a Centers for Medicare and Medicaid Services (CMS) estimation that approximately 21% of Florida’s population are Medicare beneficiaries. Mrs. Dial also cited to 10 circuit court cases in which the judges came to inconsistent conclusions about Joerg’s effect on Cooperative Leasing and/or whether evidence of the plaintiff’s past medical expenses was limited to only the amount paid by Medicare.
Although it will be many months before the Florida Supreme Court decides this evidentiary issue on the merits, its decision to accept jurisdiction was a critical first step. We’ll continue to monitor this case and report its progress. In the meantime, if you need help dealing with other issues related to Medicare – like tracking conditional payments or establishing a Medicare set-aside – contact Global Litigation Consultants today.