Waskey et al v. United States of America
Order on Motion for Miscellaneous Relief
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AGGIE WASKEY and WASSILIE WASKEY,
Individually and as Parents of
RONALD WASKEY, a minor
UNITED STATES OF AMERICA,
ORDER AND OPINION
Motion at docket 32)
I. MOTION PRESENTED
At docket 32, plaintiffs move for an order “determining that future medical costs
will be measured by the estimated actual costs of any such future expenses.”1
Defendant United States opposes the motion which is fully briefed.2 No party requested
oral argument, and it would not assist the court.
In this Federal Tort Claims Act (“FTCA”) case, plaintiffs seek damages arising
from medical malpractice, principally the failure to timely diagnose and properly treat
Ronald Waskey’s kidney disease, membranoproliferative glomerulonephritis (MPGN).
Doc. 32 at p. 2.
Defendant’s response is at doc. 50, and plaintiffs’ reply is at docket 53.
Plaintiffs moved for summary judgment on the issues of liability and causation.3 The
United States filed a qualified non-opposition.4 The court granted the motion.5
Determination of plaintiffs’ damages remains for trial. The pending motion
concerns the measure of damages to be used in assessing the amount which will fairly
compensate for Ronald’s future medical care, the most significant component of which
would be treatment associated with end-stage renal disease (ESRD) which could
require dialysis and a kidney transplant, if it is determined that Ronald is going to suffer
ESRD. Plaintiffs ask the court to rule that such damages are not measured by the
amount that Medicare might in the future reimburse Ronald’s health care providers for
dialysis and a transplant, but rather by what Ronald would be charged and expected to
pay if he did not have Medicare.6 Plaintiffs argue that future Medicare benefits to
Ronald are speculative and that, in any event, they are collateral benefits which may not
be considered in awarding damages. Defendant contends that the amount which might
be paid by Medicare is the best evidence of the costs that will be incurred, because
Medicare covers about 90% of individuals with ESRD. Defendant also argues that the
collateral source rule should not be applied where the defendant is the United States
and the collateral source is Medicare.
This court has jurisdiction because the action arises from claims against the
United States seeking money damages for “personal injury . . . caused by the negligent
or wrongful act or omission of [a government employee] acting within the scope of his
office or employment, under circumstances where the United States, if a private person,
Defendants assert that providers participating in the Medicare program agree to accept
Medicare approved rates as payment, and agree the patient is not liable for any of the
remaining amount ordinarily charged but not paid by Medicare. Doc. 50 at 3. For example, Jill
Friedman’s deposition testimony indicates that the Medicare payments for dialysis can be
significantly less than what others would pay. In one instance $27,501 would have been
charged if another source paid, but Medicare paid only $1,579. Doc. 53 Ex. 1 at 3.
would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.”7 Alaska law applies, because the injury occurred in Alaska.
To recover damages on a claim for future medical expenses in Alaska, a plaintiff
must prove two things:
1. “[t]he fact of damages by a preponderance of the evidence”
2. “[t]he amount of damages with a degree of certainty that allows the finder of
fact to reasonably estimate the amount to be allowed for [the] item [of
Plaintiffs ask the court to foreclose an argument by defendant that the most
reliable measure of the amount needed to compensate for certain care Ronald is likely
to need is the amount that Medicare would pay for such care. They ask the court to do
so without actually hearing either plaintiffs’ own evidence, or any evidence offered by
the United States. The court declines to rule in advance of the trial at which it will hear
all of the evidence which evidence it will find persuasive. Rather, the court will hear the
evidence plaintiffs offer to reasonably estimate the cost of Ronald’s future medical care.
The court will then hear defendant’s evidence, which the court understands will be
evidence of the amount Medicare would pay, plus evidence that Ronald will be on
Medicare and so would receive the care at Medicare rates.
The parties spend considerable effort discussing how the abrogation of the
collateral source rule in medical malpractice actions effectuated by AS 09.55.548(b)
might apply in this case. Suffice it to say that under the state statute, the collateral
source rule would apply if payment were made from a program like Medicare because it
is a “federal program that by law must seek subrogation.” That would mean the
exception to the statutory abrogation of the common law collateral source rules applies.
28 U.S.C. § 1346(b)(1).
Sherbhan v. Kerkove, 987 P.2d 195, 198 (Alaska 1999) (internal quotations omitted).
Under federal law the United States, in its role as a tortfeaser, must be held liable
to the same extent as a private person.9 The United States urges that because the
United States is both the tortfeaser and the entity which disburses Medicare and
Medicaid payments, the collateral source rule should not apply. This argument will fail,
however, if it is determined that Ronald qualifies for Medicare at the time of the ESRD
treatment based either upon his parents’ work history or his own. The Ninth Circuit has
held that the collateral source rule applies where the collateral source is from a special
government fund to which the plaintiff or a person upon whom he is dependent has
made contributions.10 On the other hand, if at the time dialysis or transplants are
required, Ronald could not qualify for Medicare and so might be eligible for Medicaid,
the argument might have merit. This matter cannot be resolved on the basis of the
current motion practice. It will be resolved based on the evidence received at trial.
For the reasons above the motion at docket 32 is DENIED. Unless the parties
reach a settlement–and the court strongly recommends that settlement be pursued–the
court will hear the evidence at trial and thereafter determine the quantum of damages.
DATED this 23rd day of March at Anchorage, Alaska.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1346 (b)(1).
Siverson v. United States, 710 F.2d 557, 560 (9th Cir. 1983).
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