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Pending Decision May Influence Measure of Medical Damages

By David S. Ettinger
October 28, 2010

Measuring the extent of medical damages, for a medical malpractice claim as for any other type of negligence claim, is an important part of any case. Normally, when a defendant causes harm that sends a plaintiff to a hospital or doctor, three different measures may be relevant to determining the defendant's liability ' the amount the plaintiff herself has paid for medical care, the amount the plaintiff's health insurance has paid on her behalf, and the amount a health care provider has billed as its “usual and customary” charge.

The first amount is not controversial because a plaintiff is, of course, entitled to be compensated for any reasonable out-of-pocket expenses. The second amount, too, is usually not in dispute; it is generally agreed that a defendant is also liable for medical expenses the plaintiff did not pay, but which were instead paid by her health insurance carrier. That additional recovery is the result of the common-law collateral source rule, although many states have modified the rule by statute to reduce such recoveries. As stated by the California Supreme Court, the collateral source rule provides that “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6.

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