While David Ball, in his book, On
Damages, The Essential Update, suggests that juries generally can be persuaded to award damages to fix what can be fixed – by repaying medical expenses incurred; by helping what can be helped – by paying for future medical expenses; and, by making up for what cannot be fixed or helped – by general damages for pain and suffering, he also talks about prevailing notions which motivate jurors to not give money, or to tune out plaintiffs entirely. Among the very strong motivators which push jurors to arrive at defense liability verdicts on otherwise compelling cases is the belief that the money is not necessary, or that giving money will not do anything more than make the plaintiff and her lawyer rich. Just as the desire of a jury to fix what can be fixed, and to help what can be helped are strong motivators for jurors to award substantial damages, noth- ing can be more compelling in the deci- sion making process than a sense that the only thing that will result with a plaintiff’s verdict is a windfall for the plaintiff and her lawyer. Ball contends that jurors give less
money if they think the plaintiff has received insurance payments, even in the face of jury instructions which forbid the jury from considering insurance. So, when collateral-source payments are made known to jurors, they are particular- ly inclined to make deductions, in part because of a popular misconception that is impossible to refute that verdicts in favor of plaintiffs cause an increase in the cost of health-care insurance. Even for those less inclined to have sympathy for the insurance industry, many recall President Obama’s comments in his 2011 State of the Union speech that he was “willing to listen to the Republicans’ posi- tion that health-care costs are affected by ‘frivolous medical malpractice claims.’” Medical-malpractice claims are inher-
ently those in which jurors have the strongest initial concept that the claim is frivolous, and in which they have the greatest skepticism of the Plaintiff’s claims at the outset. There is nothing which puts jurors off more than damage evidence which is misplayed.
MICRA: Attack on collateral source MICRA, the Medical Injury
Compensation Reform Act of 1975, was sold to the California legislature and the public by the insurance industry which raised insurance premiums on physicians by over 300 percent from the preceding year, which they then blamed on lawyers and litigants in medical-malpractice law- suits which they branded as “frivolous”, claiming that they were resulting in an astronomical rise in health-care costs. Doctors, stuck with the tab for a 300 per- cent single year increase in premiums which resulted from insurance marketing mistakes and the collapse of the stock market in the previous year, flocked to Sacramento in the summer of 1975, vow- ing to stop performing elective proce- dures until tort reform occurred in the area of medical malpractice. The result was MICRA, which capped general dam- ages at $250,000, and did away with the collateral-source rule. The projected result of the cap on general damages was easy for the naive public to recognize. The attack on collateral source, less so. Studies of the attitudes of likely
jurors in medical-negligence cases, con- ducted by the Rand Corporation in the 1980s, five years following the passage of MICRA in California, demonstrated that jurors generally believed that while an injured victim of tortious conduct should be compensated for the harm proximate- ly caused, the cap was reasonable at the time. The study also revealed that intro- duction of the fact of collateral source payments resulted in a 20 to 30 percent reduction in the amount of damage awards. Recoverable damages in medical-
malpractice cases are, of course, the core consideration for taking them to trial. When non-economic damages are limited to $250,000 by Civil Code section 3333.2, Plaintiffs are frequently forced to look to the past and future medical expenses to push the verdict past the cap. But, in doing so, the Plaintiffs’ lawyers must take a studied approach to whether or not to introduce medical expenses paid by collat- eral sources, and prevailing notions about the entire concept of collateral source.
The determination of the insurance
industry to initiate an assault on the courts and legislature to abrogate the collateral-source rule came about because of the long-held notion that medical expenses incurred served as a way for juries to evaluate the extent of pain and suffering, and thus, as a means of calculating non-economic damages. Traditionally, serious injuries were
measured by the amount of medical expenses incurred to treat the tort victim. There were generally considered to be “multipliers” of the medical expenses which were used by juries to determine general damages, and high medical bills incurred by the plaintiff lent themselves to compelling arguments about the fair and reasonable amounts which should be awarded in compensation for the evident pain and suffering that such large bills implied. With the cap on “pain and suf- fering” at a level which is 35 years out of date, those considerations are no longer viable in medical malpractice claims. The historic “collateral source rule”
is, of course, a doctrine pronouncing that “if an injured party receives some com- pensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfea- sor.”(Helfend v. Southern Cal. Rapid Transit District (1970) 2 Cal.3d 1 [84 Cal.Rptr. 173]. It is based on the principle that the “tortfeasor should not garner the benefits of his victim’s providence.” (Helfend, Id., at p. 10) As stated in Cabrera v. E. Rojas Properties, Inc., (2011) 192 Cal.App.4th 1319, 1325 [122 Cal.Rptr.3d 390], quoting Helfend, supra: The collateral source rule is well
entrenched in California law. Among other benefits, the collateral source rule applies to Social Security and pen- sion benefits, fidelity bond proceeds, gratuitously provided nursing services by a spouse, and wages paid by an employer. [citations] Although in cer- tain instances the collateral source rule may result in a “double recovery,” the following salutatory effects of the rule outweigh that criticism. First, the
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