Since the passage of the Affordable Care Act (ACA), also known as Obamacare, lawyers have been theorizing about its impact on future medical expenses and life care plans in civil lawsuits. The argument goes that future expenses should be limited now to the out-of-pocket caps set by the ACA because the law (1) mandates everyone purchase a health insurance policy (26 U.S.C.A. § 5000A) and (2) prohibits insurers from excluding pre-existing conditions (42 U.S.C.A. § 300gg-3). This means all law-abiding plaintiffs have health insurance that will cover any future treatment.
The cost of any treatment under the ACA will be the premiums paid for the policy and the applicable deductible. But the maximum anyone owes out-of-pocket is capped by the federal government. 42 U.S.C.A. § 18022(c)(1)(B). This is substantially cheaper than what many medical and life-care planning experts recommend, leading defendants around the country to contend that the cost of the future care is limited to the annual cap amount set by the ACA. Plaintiffs cannot legally be uncovered for the treatment they require and insurers cannot legally exclude them. If plaintiffs will never owe healthcare providers more than the annual cap, why should they be awarded more?
The plaintiffs’ primary response is that the insurance purchased under the ACA is as a collateral source that is inadmissible at trial under the reasoning that defendants should not benefit from a bargain between the plaintiffs and their health insurers. Defense counsel counter that this is no longer a private arrangement between plaintiffs and insurers, but federal law, and that they must be allowed to introduce evidence of the true cost of medical care. While courts throughout the country have been evenly divided on this issue, there is favorable case authority for the defense. First Banker’s Trust Co. v. Memorial Medical Center, 2016 IL App (4th) 150603-U (finding that defendants may produce evidence of the actual reasonable costs under the ACA); Donaldson v. Advantage Health Physicians PC, No. 11-09181-NH (Mich. Cir. Ct. 2015) (ruling that defendants could discuss “medical care and therapies” provided by insurance through the ACA because such coverage was “reasonably likely to continue into the future”); Jones v. Metrohealth Medical Center, 2016-Ohio-4858 (affirming the reduction of future medical damages to a minor based partially on his likely eligibility for insurance under the ACA).
Until the courts provide more guidance on this issue, defendants must make their case to the trial courts through life-care planning experts that are familiar with the ACA requirements and can reasonably calculate the future costs. The data on the costs of medical care under the law is readily available and growing. Experts can tell juries what the maximum future treatment will actually cost the plaintiff without making any reference to insurance, citing instead to federal law. This is consistent with the “reasonable value” approach to the collateral source rule adopted by the Illinois Supreme Court. Wills v. Foster, 229 Ill.2d 393 (2008).