I am a North Carolinian for affordable health care. I suspect you are as well. Affordable health care would certainly benefit my clients who have no health insurance and are faced with huge medical costs through the fault of someone else. When I got the bill from a local hospital after my wife had to recently go the emergency room, my support for affordable health care certainly was high (as was the bill). My wife’s as well, partly for that reason and for the fact that it would also benefit the patients she treats as a registered nurse.
My wife and I are apparently in good company. A special interest group, North Carolinians for Affordable Health Care, has been running television ads throughout the state pushing for affordable health care for our citizens. I can hardly applaud their efforts, however, as they use their name and the ruse of pushing for affordable health care to support North Carolina House Bill (NC HB) 542. As you know, Faithful Readers, this is the proposed tort reform bill currently pending in the North Carolina General Assembly.
Ironically, while I was at home sick on Monday I saw the new television ad from the NCAHC talking about affordable health care at least a dozen times. The commerical made me feel even more sick as it is filled with lies. Lies?! Yes, lies. I know that is a harsh and accusatory word, Readers, but even with a thesaurus handy I am at a loss to find a better one to describe what I heard in the commercial. As I spend this week preparing for an upcoming personal injury trial involving a fair amount of medical bills, I thought this would be a good time to set the record straight on how medical bills are really presented at trial as opposed to how the tort reformers would like you to think they are presented at trial.
NCAHC Lie No. 1: “Under current law, personal injury lawyers don’t reveal the real costs of medical care, just what they are suing for…”
False. I have never presented to a jury anything but the actual bill my client received from their health care provider. I have yet to see, hear about, or know another personal injury attorney who has not presented to a jury anything but the actual bill their client received from their health care provider. We admit these bills into evidence, and the jury gets to see them. They get to hold them in their hands. They get to read and examine them. In my last trial, my client had $4,861.65 in medical bills. These bills were admitted into evidence and the jury saw a bill for every penny of that amount.
The attractive 30 second sound bite from the NCAHC aside, ask yourself whether what the NCAHC says actually makes sense. In a personal injury case, the plaintiff has the burden of proof. This means that we must prove, by the greater weight of the evidence, that the plaintiff was injured by the negligence of the defendant and that damage resulted. Damages in a personal injury lawsuit include fair and reasonable compensation for medical expenses, lost wages, pain and suffering, permanent injury, future medical expenses, and loss of earning capacity among other items.
If my client had incurred $4,861.65 in medical bills; and I have tangible bills from the providers showing that he incurred $4,861.65, how is that not the real cost of my client’s medical care? How would I meet my burden of proof to a jury by not showing them those bills? Would you award me whatever I said my client wanted for medical expenses without seeing the bills in evidence? You can provide your answer in a comment to this post, but I think I already know what two-letter word you would write down.
NCAHC Lie No. 2: “…and you pay in higher health care costs.”
False. This conclusion has to be false because the argument supporting it is false. Apart from that, I would love to see one independent study showing empirical data that supports the proposition that a victim of negligence being fairly compensated for the medical expenses they incurred due to a wrongdoer raises everyone’s health care costs. I’m an arguably smart guy who’s good at research, and I have yet find or see one in the ten years I’ve been following the tort reform debate.
House Bill 542 is not the proposed medical malpractice reform bill (that’s Senate Bill 33). HB 542 applies to all civil actions, and the provision in the bill that this ad specifically deals with applies mostly to your average personal injury claim, such as a claim from an automobile accident. How would Nationwide, Allstate, State Farm, Progressive and the rest of the automobile insurers raise health care costs when they indemnify their insured defendants when a verdict is rendered against them for their wrongdoing?
Taxes and health care costs are raised however, when victims of negligence are left unable to fully recover for their damages because of tort reform. They become wards of the state and enroll in Medicaid and Medicare. And/or, the cost of care is sometimes so great that they are left with no option but to file bankruptcy, leaving the medical providers unpaid. This results in higher taxes and health care costs for us all. Is it fair for the taxpayers to shoulder this burden when the wrongdoer had a liability insurance policy in place to cover these very costs?
NCAHC Lie No. 3: “If you were on the jury, would you want all the facts, or just the ones the lawyers want you know?”
True and False. In my experience, juries do want all the facts. And, I want them to have all the facts. Unfortunately, the rules of evidence prevent certain facts from coming into evidence because the quality of the evidence is deemed to be unreliable or far too prejudicial to one or both sides. I call this question posed by the NCAHC a lie because it’s posed to push for HB 542. HB 542 removes all collateral source protection from the plaintiff, but leaves collateral source protection intact for the defendant. In non-lawyer speak, this means that if you are on a jury, you will get to hear all about how Blue Cross and Blue Shield paid for a part of the plaintiff’s medical bills. But, you will still never hear that if you render a verdict against that nice soccer mom who happened to rear-end the plaintiff when she was talking on her cell phone, Allstate or another insurance company pays that verdict and not the soccer mom from her kids’ college fund. By supporting HB 542, does NCAHC really want you as a juror to know all the facts?
Should jurors be able to hear about the plaintiff’s health insurance? That’s a good question. A better question might be whether the wrongdoer should benefit from the plaintiff being responsible enough to have health insurance and the plaintiff’s hard work going to pay for those premiums? Let us also not forget about those health plans that have lifetime payout limits and/or get reimbursed from a third-party recovery what they paid on the bills. Even if it is a good idea to talk about the plaintiff’s insurance with a jury, why is it also not a good idea to talk about the defendant’s?
North Carolinians for Affordable Health Care is lobbying the legislature to pass tort reform measures that will be detrimental to working class North Carolinians for the sake of Wall Street interests. By the organization’s very name, they purport to speak for you. If you disagree, then let NCAHC know. Also let the decision makers who represent you in General Assembly know.
Disclaimer: The views of the author are his own. Nothing in this blog post should be construed as legal advice to any individual.