Interesting Article On How Affordable Healthcare Act Can Benefit Defense Bar

Can Affordable Care Act Ruling Help the Defense Bar?
Max Mitchell, The Legal Intelligencer
July 2, 2015 | 0 Comments

Tomasz Papuga
A recent U.S. Supreme Court decision affirmed for the second time the constitutionality of the Affordable Care Act, but it also may have given the defense bar a little more of a bargaining chip when it comes to personal-injury cases.
With the Supreme Court’s decision in King v. Burwell, the court denied a second bid to overturn the controversial law, also known as Obamacare, which is aimed at getting health insurance coverage for all Americans. Although the Supreme Court’s most recent ruling turned on a very narrow issue dealing with how state insurance exchanges are set up, some observers said the decision could mark the end of legal challenges to the law.
So, with Obamacare arguably beginning to solidify as the law of the land, it has become increasingly likely that injured plaintiffs will have health insurance coverage. And defense attorneys have been taking advantage.
According to defense attorney Thomas Geroulo of Weber Gallagher Simpson Stapleton Fires & Newby, he and other defense attorneys have been increasingly negotiating with the ACA in mind, and the King ruling makes their ability to rely on the prospect of universal health care much stronger.
According to Geroulo, most of the medical care a plaintiff might be awarded is valued at the out-of-pocket costs to the plaintiff. The ACA, he said, will allow plaintiffs to get insurance at reduced rates, noting, as an example, that surgeries that may have been estimated at $50,000 for a plaintiff could now cost closer to $10,000 in out-of-pocket expenses.
“It dramatically undercuts their claims,” Geroulo said.
While attorneys agreed that this argument has not been every effective in the courts so far because of the collateral-source rule, which prohibits defendants from introducing evidence about a plaintiff’s potential collateral source of money, Geroulo said the recent affirmation of the ACA could change that.
“A defendant cannot take advantage of the fortuitous collateral source,” Geroulo said. “We argue that the ACA makes that concept obsolete. Nobody is lucky to have insurance anymore. They have to go out and get it.”
However, plaintiffs attorney John Gismondi said he doesn’t see the argument gaining much traction in the long term. Absent some legislative action, courts will likely stick to the long-standing collateral-source rule prohibition, Gismondi said.
“I think judges are going to err on the side of caution,” Gismondi said, noting that judges will likely keep in mind that, regardless of what happens with the ACA, plaintiffs can never go back to retry their cases. “Judges will say, ‘Hey. Wait a minute. Why are we going to do a favor for the wrongdoer?’ Plaintiffs will win all jump balls and close calls.”