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Eliminating 'Phantom Damages'

By Victor E. Schwartz and Cary Silverman

In our day-to-day lives, Americans recognize that the “list” or “sticker” prices for products or services do not always reflect their actual cost. But in the topsy-turvy world of the legal system, lawyers who represent plaintiffs in product liability and other personal injury cases seek damages for medical expenses based on amounts originally billed by healthcare providers that are significantly higher than the plaintiff – or anyone paying on her behalf – actually paid. In recent years, several states have limited or eliminated these “phantom damages.”

For example, more than three-quarters of Americans have “club cards” that they routinely use at the supermarket. When the customer presents the card and the store applies applicable discounts at the checkout counter, the total bill can easily come down 20% from the “regular” prices. If an individual purchased supplies for a work-related event at the supermarket, and submitted a request to her employer for reimbursement, she would not expect to receive a check reflecting the prices on the receipt prior to the deduction of discounts. Another illustration is the sticker price of a car. Car buyers recognize that the amount on the window of the vehicle is a starting point for negotiation, and that they ultimately pay less. Most states impose a sales tax on cars. A purchaser would not expect the state to base the amount of that tax on the sticker price of the car, but would anticipate paying an amount based on the actual cost. Obviously, in each case, consumers expect the transaction to be based on the amount actually paid, not a list price. They recognize that the sticker price may simply reflect the pricing practices of that industry, not the true cost.

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