Benjamin J. Steinberg, Discounted Medical Bills and Conflicting Applications of Florida Statutes §768.76 as A Rule of Evidence

62 Fla. L. Rev. 1431 (2010) | | | |

INTRODUCTION :: Marcie was a loving mother and a hard worker. But all of this was stripped away in an instant. Marcie lost both her daughter and her ability to work after being struck while walking home from school by a negligent driver. The resulting injuries have required several surgeries. With more operations necessary in the future, Marcie will likely require a lifetime of medical care. Marcie’s employer provided her health insurance coverage. Unfortunately, when she lost her job because of the injuries, she lost her insurance as well. Due to her present condition and dearth of income, she is unable to afford the high premiums of private insurance.

Marcie lives in West Palm Beach, Florida. She hired a lawyer to sue the driver. Her complaint demands the cost of her past and future medical care. While insured, Marcie enjoyed the benefit of discounted medical costs stemming from an agreement between her HMO and her health care provider. Now, without insurance, the costs of future medical care will not be discounted and Marcie will face larger, retail costs for the same care. Her attorney wants to present evidence at trial of the retail cost of her past care to establish the “reasonable value” of care in the future. However, he is concerned that the jury may never see these retail costs because some judges across the state are allowing the costs to be admitted into evidence while others are not. If the jury does not see the retail costs, Marcie may not see them reflected in her recovery. She may, in effect, be penalized for past benefits she no longer enjoys.


Marcie is a hypothetical plaintiff and her attorney is a hypothetical attorney. However, there are many real “Marcies” currently facing this problem. There are also many real attorneys who share the concerns of Marcie’s attorney. These concerns have led attorneys to establish an e-mail list manager to share information about exactly what evidence a particular judge will allow. Prior to entering a courtroom, they will use the listserv to ask, “I am in front of Judge X. Does he follow Goble or Thyssenkrupp?” The question refers to the Second District Court of Appeal’s decision in Goble v. Frohman and the Fourth District Court of Appeal’s decision in Thyssenkrupp Elevator Corp. v. Lasky.

Both Goble and Thyssenkrupp addressed the value of negotiated discounts between health care providers and insurance providers as “collateral source contributions” under Florida Statutes § 768.76. The statute both defines “collateral sources” and mandates that the value of such contributions be reduced from a damage award to prevent excess recovery, or “double recovery,” by plaintiffs. Both courts held that these discounts were properly set off from plaintiff awards. Both courts agreed that the statute operates as both a rule of law and a rule of evidence.

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