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Unpublished Paper
RHETORIC, REALITY & THE WRONGFUL ABROGATION OF THE COLLATERAL SOURCE RULE IN PERSONAL INJURY CASES.
ExpressO (2011)
  • Lori A Roberts
Abstract

RHETORIC, REALITY & THE WRONGFUL ABROGATION OF THE COLLATERAL SOURCE RULE IN PERSONAL INJURY CASES. LORI A. ROBERTS Abstract: There are few certainties in litigation, but one that any injured plaintiff with health care insurance can rely on is that a defendant-tortfeasor will argue that the plaintiff’s health care bills are “illusory” and that the plaintiff will recover a “windfall” if he is allowed to recover the full amount of those bills as economic damages. The issue addressed in this Article, whether the difference between the billed rate for medical care and the actual amount paid by a plaintiff’s insurer is a collateral source benefit, has garnered much national attention recently as nearly every state’s judiciary and legislature vie to create law that will govern their jurisdiction. Much of the case law and legislation cited in this Article has been published within the last year and showcases the considerable disparity among the states regarding a plaintiff’s ability to recover the amount billed by his health care provider in personal injury cases. This Article highlights that despite its inaccuracy, framing an insured plaintiff’s medical bills as “illusory” and a plaintiff’s recovery of that amount as a “windfall” gain has become a pervasive rhetorical device advanced by defendant tortfeasors – and insurance liability carriers – to influence courts and legislatures to abolish the collateral source rule in personal injury cases. This Article demonstrates that while application of the collateral source rule is still mostly assured in the absence of legislation directing the judiciary otherwise, the unsavory social and legal implications of the labels “windfall” and “illusory” are embedded in many court opinions. States’ legislatures are influenced by this same rhetoric to pass legislation abrogating the collateral source rule in personal injury cases, often responding directly to the policy concerns of illusory medical bills and windfall gains that are highlighted in court opinions. The result is that a body of tort legislation abrogating the collateral source rule is being created based on the implications associated with these labels, rather than reality. Word count, including footnotes: 16,989

Keywords
  • collateral source rule,
  • legislation,
  • rhetoric,
  • contracts,
  • health care billing
Disciplines
Publication Date
August 9, 2011
Citation Information
Lori A Roberts. "RHETORIC, REALITY & THE WRONGFUL ABROGATION OF THE COLLATERAL SOURCE RULE IN PERSONAL INJURY CASES." ExpressO (2011)
Available at: http://works.bepress.com/lori_roberts/2/