Expenses — continued from Page 18
the past medical expense with the impact on the fund source for future medical care, they can better understand the notion that the plaintiff worked hard, and spent a lot of money for the safety net of his health insurance policy. That is the very notion behind the collateral source rule. Explained to the jury in that fashion, it can carry the day. The decision to introduce past med-
ical expenses – or not, is seldom simple in a claim against a health-care provider, but there are some instances in which there simply is no choice. Medical expenses paid by MediCal and MediCare are the best example. Once identified by statute as col- lateral sources which the defendants were entitled to disclose to the jury, these sources of payment of past medical expenses were
excluded by decisional case law in 1982. In Brown v. Stewart 129 Cal.App.3d 331 [181 Cal.Rptr. 112], the Court of Appeal held that, because federal law allows MediCare to subrogate to the plaintiff’s claim to recover amounts paid by the program, and the statute extinguished the right of a col- lateral source payor to subrogate to the claim of the injured tort victim, the Supremacy Clause of the U.S. Constitution prohibited the statutory scheme which allowed the introduction of collateral source payments by or through a federal program which had a statutory right to seek reimbursement. The Brown decision thus excepted MediCare payments from disclo- sure pursuant to Civil Code section 3333.1. Since MediCal is also a program of federal health care funding administered by the
State with similar lien rights, MediCal pay- ments are similarly no longer introducible pursuant to the statute. However, medical expenses paid by
either MediCal or MediCare present their own unique, but significant considera- tions in a claim against a health-care provider. First, the lien claim right is absolute, and failure of the plaintiff’s attorney to notify either agency of their potential lien claim rights arising from the filing of a claim arising out of care provided to a MediCal or MediCare recip- ient may result in the liability of the attor- ney for the lien amounts in the event the Plaintiff is obligated to pay, but the lien is not satisfied by the client. That is no less the rule in medical-negligence claims.
See Expenses, Page 22
Neurosurgery • Orthopedic Surgery • Neurology • General / Vascular Surgery • Pain Management GeneralMedicine • Plastic Surgery • Psychology • Physical Therapy • Chiropractic Diagnostics (MRI/CT Scan/X-ray) • Liens Accepted
20— The Advocate Magazine JULY 2011
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