• Ohio Appellate Court Upholds the Use of the Affordable Care Act to Substantially Reduce a Jury’s Award of Future Damages
  • July 28, 2016 | Authors: John J. Hare; Leslie M. Jenny
  • Law Firms: Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office; Marshall Dennehey Warner Coleman & Goggin, P.C. - Cleveland Office
  • Lawyers handling catastrophic injury cases have closely followed the emerging body of case law regarding the impact, if any, of the Affordable Care Act (ACA) on claims for future damages. Before the ACA, it was uncertain whether injured individuals would have health insurance in the future. Consequently, in most jurisdictions, the collateral source rule prevented defendants from arguing that a plaintiff’s future damages should be reduced because he or she has health insurance. Plaintiffs’ attorneys could therefore present essentially unrebutted evidence projecting the cost of a plaintiff’s medical expenses into the future. These projections, primarily in life care plans, are generally the single largest financial component of damage claims. Such plans often project massive expenses that can drive equally massive jury verdicts.

    However, given the ACA’s mandate that all Americans must obtain health insurance or face penalties, defense lawyers can and do oppose future damage claims by arguing that, because plaintiffs’ future damages will be paid by federally-mandated insurance, they may not be compensated through jury verdicts. In a handful of cases decided in 2015, trial courts first addressed these efforts by defense counsel to utilize the ACA to reduce awards for future damages.

    One of the first and most highly-publicized of those decisions was Jones v. MetroHealth, Case No.757131, decided in May of 2015 by Judge Ronald Suster in the Cuyahoga County Court of Common Pleas (Cleveland, Ohio). In Jones, where the defendants were represented by Leslie M. Jenny of Marshall Dennehey’s Cleveland office, the plaintiff presented a life care plan totaling $8 million. In response, defense experts in elder law, life care planning and nursing testified that the premiums for health insurance pursuant to the ACA are between $2,000—$8,000 per year and that the maximum out-of-pocket expense is between $6,300—$6,500 per year. Nonetheless, the jury returned a verdict of $14.5 million, most of which compensated the plaintiff for future medical expenses. Relying on the ACA, along with provisions of Ohio law relating to damage caps and potential set-offs on past and future medical expenses, the court reduced the award by $11 million.

    In an important ruling handed down on July 7, 2016, the Court of Appeals of Ohio, Eighth Appellate District, affirmed the trial court’s use of the ACA to substantially reduce the jury’s award of future damages. In Jones v. MetroHealth, Case No.102916 (July 7, 2016), the Court of Appeals squarely rejected the plaintiff’s argument that, because the ACA (and Medicare and Medicaid) are “political targets” that might be abolished or changed in the future, they should not be used to reduce the jury’s award of future damages. Id., p. 29. This is a key appellate ruling that should be cited by defense lawyers to promote and support the use of the ACA to limit future damages.

    Based on her experience in Jones, Attorney Jenny makes the following recommendations to counsel seeking to employ the ACA to reduce awards of future medical expenses:
    • Get ahead of the curve by retaining experts and analyzing the details of the plaintiff’s life care plan;
    • Consider retaining an elder law attorney and/or insurance specialist who can assist in establishing the costs of health insurance, the benefits provided by alternate policies, and the maximum out-of-pocket expenditures;
    • Retain a life care planner who will carefully analyze the plaintiff’s life care plan to identify which elements/items are covered by the ACA;
    • Consider retaining an expert to establish the cost of an annuity to fund your projection of future life care;
    • Consider moving to bifurcate the trial into liability and damages because such a proceeding can obviate the plaintiff’s claims that evidence of ACA-mandated health insurance will taint the jury’s liability determination and result in a tribunal more willing to entertain evidence on the ACA.
    The favorable appellate ruling in Jones represents a critical step forward on the path to acceptance of the ACA as a substantive limitation on awards for future medical expenses.