connection with a medical-negligence case, however, so it is still possible to dis- tinguish Marshall and argue that the jury should be told about MICRA. The rare judge may agree. It is unlikely that telling the jury about the law would result in prejudicial error unless the verdict contained an amount of economic dam- ages not supported by the evidence. •Collateral-source evidence The collateral-source rule does not
apply in medical-negligence cases. Civil Code section 3333.1 authorizes a defen- dant in a medical malpractice case to elect to introduce evidence of collateral sources paid: as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or
worker’s compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. If the defendant makes such an elec-
tion, and it invariably will, plaintiff is permitted to introduce evidence of the “amount which the plaintiff has paid or contributed to secure his right to any insurance benefits which the defendant has introduced in evidence.” The source of the collateral benefits – usually an insurance company – is not permitted to recover any of what it paid on plaintiff ’s behalf and is not entitled to assert a
subrogation claim. (Note: there is an exception for Medicare, MediCal and certain state benefit programs, which have statutory liens that must be repaid.) As a practical matter, a settling
defendant may take into account the amount of the past medical bills when assessing the value of the non-economic damage claim, but will be unlikely to offer any more than the out-of-pocket costs actually incurred by plaintiff as part of a settlement package. A settlement demand by plaintiff, however, should include all of the future medical bills, without regard to potential collateral sources, since future payment will be speculative and, thus, inadmissible. In a good liability case, defense generally will include the amount of future medical expenses in calculating the settlement value of the case.
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FEBRUARY 2012 The Advocate Magazine — 51
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