Evidence of Potential Medicaid Payment of Future Medical Expenses Inadmissible in Florida – Go v. Normil

As a general rule, a plaintiff may recover the full amount of compensatory damages even if the plaintiff has received payments from sources other than the tortfeasor.  Evidence of those collateral source payments is generally not admissible. Therefore, this rule, known as the “collateral source rule,” relates to both damages and evidence.  In Florida Physician’s Insurance Reciprocal v. Stanley, the Florida Supreme Court held that evidence of governmental or charitable benefits that are available to all citizens without consideration of wealth or status is admissible for the purpose of determining the reasonable costs of future medical expenses.  The Florida Supreme Court found that the collateral source rule was not applicable when the plaintiff had not incurred any expense, obligation, or liability.

The Florida Supreme Court has subsequently held that evidence of future benefits from Medicaid and Medicare is not admissible because Medicaid and Medicare have a right to reimbursement from a tort recovery.  Furthermore, the Supreme Court pointed out that the availability of those benefits in the future was speculative.

The Fourth District recently applied the collateral source rule in a tragic case arising from the death of a child in Go v. Normil.  The child was taken to the hospital for vomiting, high fever, and a stiff neck.  He was treated there by the appellant and another doctor for two weeks.  He was then transferred to a children’s hospital.  The doctors at the children’s hospital found that the child had had a stroke, and tests showed the presence of herpes and Epstein-Barr virus.

The child’s mother filed suit against the hospital, the two doctors responsible for the child’s care at the hospital, and another health care organization.  Only one doctor was involved in the appeal.

There was expert testimony that it was “more likely than not” the stroke would not have occurred if the herpetic infection had been treated sooner.  The plaintiff presented evidence that the child’s neurological and behavioral development was affected by the stroke.  There was testimony that the child could not communicate or follow directions.  There was also testimony that he engages in self-injurious behavior and requires constant supervision because he lacks awareness of his own safety.  Additionally, the child is morbidly obese and has an insatiable appetite.  There was testimony that he has a total permanent disability and will not be able to live independently.

The jury awarded the child and his mother more than $16 million in economic damages and $6 million each for past and future noneconomic damages.  The trial court reduced the noneconomic damages to $500,000 each.

The jury found one doctor 75% liable for the child’s injuries.  That doctor appealed, and the plaintiffs cross-appealed.

The doctor argued the trial court erred in excluding evidence related to free or low-cost medical care, in denying the doctor’s requests for post-verdict juror interview and a new trial, and in denying her motion for a continuance.

The doctor had wanted to introduce evidence that future medical expenses would be significantly reduced because of free or low-cost medical care provided by the state where the child lived.  The court ruled that evidence of governmental or charitable benefits was admissible as to future damages, if they were available regardless of wealth.  The doctor’s expert then testified that the child would have access to free attendant care and therapy through the public school system until the age of 22.  The expert also testified about residential programs with nursing care and supervision, but on further questioning, she stated that the facilities would charge Medicaid and that the child would have to qualify for Medicaid because the facilities did not accept private pay.  She further stated that the facility would be paid by Medicaid, but Medicaid would have to be reimbursed.  The trial court struck her testimony, finding that discussion of care provided by the Medicaid program was specifically inadmissible.

The appeals court found that the trial court properly excluded the evidence of possible future benefits, based on Stanley and supported by the subsequent case.

Also at issue was the trial court’s reduction of the noneconomic damages. The appeals court noted that it had previously held that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional.  Thus, the appeals court again held the cap was unconstitutional and directed the trial court to amend the judgment to reflect the amount of damages awarded by the jury.

The collateral source rule generally prevents the introduction of evidence related to insurance payments.  The appeals court properly excluded the evidence in this case.  As the court indicated, it is not certain that the child will receive such benefits.

If you have been injured by the negligence of a health care provider, our Florida medical malpractice attorneys can fight to seek the compensation you deserve. Call Anidjar & Levine at 800-747-3733 to schedule a consultation.

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