What amount of past medical expenses can a plaintiff present to the jury when he or she is a Medicare recipient? The short answer: only the amount of past medical expenses the plaintiff is obligated to pay, not the gross amount charged by the medical provider or providers. What if the plaintiff is a Medicare recipient but his or her medical providers did not submit bills related to the case through Medicare? This situation is more complex, but ultimately the answer is simple as well: if the medical provider did not properly opt out of Medicare, the plaintiff is not able to collect any amount in past medical expenses over the Medicare reimbursement rate.

Since the Florida Supreme Court’s decision in Joerg v. State Farm Mutual Automobile Insurance Co.,’ trial courts have reached inconsistent results regarding whether to allow plaintiffs to “board” evidence of total gross past medical expenses at trial or to allow only the medical expenses actually paid after Medicare rates are applied. In Joerg, the Florida Supreme Court held the trial court prop­erly excluded evidence of future benefits from Medicare, Medicaid, and other social legislation as collateral sources.²

Trial court orders that allow evidence of gross medical expenses rely heavily on Joerg, while orders limiting boarding of full medical expenses rely primarily on Thyssenkrupp Elevator Corp. v. Lasky’ or Cooperative Leasing, Inc. v. Johnson.⁴

Editor’s Note:

The Florida Supreme Court recently clarified the law relating to evidence of past medical expenses: when a plaintiff’s past medical expenses have been paid by Medicare or similar programs, the jury can consider the amount actually paid, not what the medical providers billed. As explained here, the issue remains complicated when a plaintiff is Medicare-eligible but the medical providers have not billed through Medicare.

In Thyssenkrupp, the defendant sought a reduction in a jury’s award of medical expenses, arguing that, as a matter of law, the plaintiff would never have to pay the difference between the amount charged by the provider and the amount the provider accepted from Medicare.⁵ The Fourth District agreed and concluded the defendant was entitled to have the past medical expenses the jury awarded reduced by the difference between the amount charged by a provider and the amount Medicare actually paid that provider.’ The court held allowing the admission of evidence of the excess discharged by Medicare payment would have the effect of “providing an undeserved and unnecessary windfall to the plaintiff.”‘ The court relied on Florida Physician’s Insurance Reciprocal v. Stanley,⁸ which held evidence of free or low-cost medical services available to people with specific disabilities did not violate the collateral source rule. Stanley in turn relied on Peterson v. Lou Bachrodt Chevrolet Co., which held that in the situation in which the injured party incurs no expense, obligation, or liability, there was no justification for adhering to the collateral source rule because that would allow the plaintiff “to exceed compensa­tory limits in the interest of insuring an impact on the defendant.”‘

In Dial v. Calusa Palms Master Association,i° the Florida Supreme Court recently clarified the applicability of Joerg. In Dial, before trial, the trial court granted a motion in limine precluding the plaintiff from introducing evidence of the gross amount of her past medical expenses, and limiting her to introducing only discounted amounts paid by Medicare. The jury awarded the plaintiff $34,641.69 in past medical expenses; the plaintiff appealed, arguing Joerg allowed her to present evidence of the full amount of her medical expenses.” The Second District Court of Appeal certified a question of great public importance regarding whether Joerg applied to past medical expenses.¹² The Florida Supreme Court answered the question in the negative, saying Joerg “dealt only with future medical expenses,” and did not apply to the issue of past medical expenses.¹³

Under Dial, there is no question that when a plaintiff’s past medical expenses have been paid by a program such as Medicare, the plaintiff may only submit to the jury the amount that has been paid, not what the medical provider has billed.

Another controversial issue is what amount the plaintiff can present to a jury when he or she is Medicare-eligible, but the medical providers he or she is treating with have not submitted bills through Medicare.

The Medicare program consists of two parts. Part A is a mandatory program that insures the elderly and disabled against the costs of hospital and certain post-hospital care.¹⁴ Part B is a voluntary program that provides supplemental coverage for other healthcare costs, including physicians’ services.¹⁵ Under current law, physicians have three options for how they can charge a Medicare patient, and must elect one each year:’ They may register with Medicare as (1) a participating provider, (2) a non-participating provider, or (3) an opt-out provider.

Participating physicians agree to accept an assignment of each beneficiary’s claim and to charge no more than the amount specified by Medicare as full payment for services rendered.¹⁷ Non-participating physicians may choose on a claim-by-claim basis either to bill the patient directly, requiring the patient to then be reimbursed by Medicare, or to accept an assignment of the patient’s claim in the same manner as a participating physician.¹⁸ Regardless of which option a physician chooses, the provider must submit the bill to Medicare within one year of the service provided, and must complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of the beneficiary.¹⁹

The last option that a physician has is to be an “opt-out provider.” A physician can enter into a private contract with a Medicare beneficiary under which no claim for payment will be submitted to Medicare. The contract must be in writing and be signed by the beneficiary before any item or service is provided pursuant to the contract.²° Furthermore, an affidavit must be in effect during the period any item or service is to be provided pursuant to the contract, providing that the physician or practitioner will not submit any claim during a two-year period.²¹ Failure to properly opt out means that election is null and void, and the physician must submit claims to Medicare.²² The Secretary of Health and Human Services concedes that very few doctors will be willing to opt out of Medicare, and generally agrees that the two-year restriction “represents a substantial barrier to the receipt of contracted services.”²³

Therefore, because comparatively few providers participate in the opt-out option, most are required to submit their patients’ bills through Medicare for those patients who are Medicare recipients. If they do not, the plaintiff is only allowed to present to the jury the amount that Medicare would have charged had her bills been submitted to Medicare as the physician was required to do by law. This is consistent with the reasoning that it would be contrary to the public purpose of reducing health care costs to allow inflated damage recoveries to stand without reduction.²⁴

This article was originally published in the Trial Advocate, Volume 42, No 1, a publication of the Florida Defense Lawyers Association and is republished here with permission.

176 So. 3d 1247 (Fla. 2015).
² Id. at 1257.

• 868 So. 2d 547 (Fla. 4th DCA 2003).
  ⁴ 872 So. 2d 956 (Fla. 2d DCA 2004).
• Thyssenkrupp, 868 So. 2d at 549.

Id. at 550 (citing Cooperative Leasing Inc. v. Johnson, 872 So. 2d 956

(Fla. 2d DCA 2004)).

• 452 So. 2d 514 (Fla. 1984.)

B 392 N.E.2d 1 (III. 1979).

⁹ Thyssenkrupp, 868 So. 2d at 550 (citing Stanley, 452 So. 2d at 515).

¹° 337 So. 3d 1229 (Fla. 2022).

¹¹ Id. at 1230.

¹² Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690, 692 (Fla. 2d DCA 2020).

¹³ 337 So. 3d at 1231.

¹⁴ 42 U.S.C. §§ 1395-1395i-4 (citing Stewart v. Sullivan, 816 F. Supp. 283, 284 (D.N.J. 1992).

15 42 U.S.C. §§ 1395j-1395w-4 (citing Stewart v. Sullivan, 816 F. Supp. 283, 284 (D.N.J. 1992).

16 42 U.S.C. §§ 1395u(b)(4).

17 Stewart, 816 F. Supp. At 284.

18 Id.

19 42 U.S.C. §§ 1395w-4(g)(4)(A).

20 42 U.S.C. §§ 1395(b)(2)(a)(i).

21 42 U.S.C. §§ 1395(b)(3)(B).

22 42 CFR § 405.430(b).

23 United Senators Ass’n v. Shalala, 182 F.3d 965, 969 (D.C. Cir. 1999).

24 Thyssenkrupp, 868 So. 2d at 550