v. Harvey et al
Filing
52
MEMORANDUM OPINION AND ORDER granting in part and denying in part 44 Motion in Limine: The motion in limine to exclude medical billing evidence at the trial of this matter is GRANTED only insofar as such evidence is offered to prove past medical expenses, because such expenses have been satisfied by TRICARE payments and thus are not recoverable by the plaintiff. The motion is DENIED IN ALL OTHER RESPECTS. Signed by Senior Judge Charles R. Simpson, III on 6/12/13. cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
LEIGH ANN HARVEY
PLAINTIFF
v.
CIVIL ACTION NO. 3:09CV-122-S
UNITED STATES OF AMERICA
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the court on motion of the defendant, United States of America, for an
order in limine precluding evidence of medical bills payed by TRICARE1 from the trial of this
Federal Tort Claims Act (“FTCA”) action.
The plaintiff, Leigh Ann Harvey, the spouse of an active duty service member, received
medical treatment at Ireland Army Medical Center at Fort Knox, Kentucky. She alleges medical
malpractice in the treatment she received.
The United States seeks to preclude the introduction of medical bills which have been
satisfied by TRICARE payments which, as is customary, were by agreement for less than the
amounts billed. The United States urges that TRICARE payments are not collateral source
payments, and, as such, Harvey is precluded from recovering the difference between the amount
billed for her medical care and the amount accepted by the providers from TRICARE in satisfaction
of the charges. Harvey admittedly seeks this windfall. Additionally, she contends that the medical
1
TRICARE is the health care program for active duty military personnel. The program’s predecessor was known as
CHAMPUS.
bills are admissible to prove future medical expenses and damages for past and future pain and
suffering.
The court must look to the law of Kentucky in addressing the application of the collateral
source rule, as it is a substantive rule of law. Jackson v. City of Cookeville, 31 F.3d 1354, 1359 (6th
Cir. 1994).
There appears to be no authority from the Kentucky courts or from the Sixth Circuit
applying Kentucky law which addresses whether TRICARE payments are collateral to the United
States.
The weight of authority from other jurisdictions favors the conclusion thatTRICARE
payments for past medical expenses are not collateral payments as to the United States. These
payments may be proven by the United States in an FTCA case to offset a claim for costs which
were not borne by the plaintiff. See, Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed.
1200 (1949)(the court noted in dictum that it would seem incongruous if the United States should
have to pay twice for hospital expenses); Mays v. United States, 806 F.2d 976 (10th Cir.
1986)(CHAMPUS benefits not collateral, as payments come exclusively from the general revenues
of the United States); Kornegay v. United States, 929 F.Supp. 219 (E.D.Va. 1996); McDonald v.
United States, 900 F.Supp. 483 (M.D.Ga. 1995); Lozada v. United States, 140 F.R.D. 404 (D.Neb.),
affm’d, 974 F.2d 886 (8th Cir. 1992); Kennedy v. United States, 750 F.Supp. 206 (W.D.La.
1990);Anderson v. United States, 731 F.Supp. 391 (D.NH. 1990); But see, Murphy v. United States,
836 F.Supp. 350 (E.D.Va. 1993); Mooney v. United States, 619 F.Supp 1525 (D.NH. 1985).
This court finds the analysis in Mays v. United States, supra. and others to be sound.
TRICARE payments which have already been made for Harvey’s benefit are not collateral payments
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as to the United States. The purpose of Kentucky’s collateral source rule is not contravened by our
ruling because no windfall will result for any party. To the extent that Harvey has accepted
TRICARE benefits, and her medical bills have been satisfied by TRICARE, she may not recover
further for those medical costs.
There is some authority that the collateral source rule does not preclude recovery of future
damages. In Molzof v. United States, 6 F.3d 461, 468 (7th Cir. 1993), the United States Court of
Appeals for the Seventh Circuit determined that “we share the reluctance of other courts addressing
this issue to deny the plaintiff the freedom to choose his medical provider and, in effect, to compel
him to undergo treatment from his tortfeasor.” The court in Molzof quotes from Feeley v. United
States, 337 F.2d 924 (3d Cir. 1964): “To force a plaintiff to choose between accepting public aid or
bearing the expense of rehabilitation is an unreasonable choice.” See also, Ulrich v. Veterans
Administration Hospital, 853 F.2d 1078 (2d Cir. 1988); Powers v. United States, 589 F.Supp. 1084
(D.C.Conn. 1984); Christopher v. United States, 237 F.Supp. 787 (E.D.Pa. 1965). These cases
involved entitlement to Veterans Administration benefits. The United States Court of Appeals for
the Tenth Circuit in Mays v. United States, 806 F.2d 976 (10th Cir. 1986) analogized CHAMPUS
benefits to veterans benefits in concluding that the recipient’s service could not be considered a
contribution toward the benefit.
A number of courts have held as a general proposition that damages for medical expenses
may be offset by CHAMPUS benefits. These courts did not draw a distinction between past and
future CHAMPUS benefits or expenses.
In Dempsey v. United States, 32 F.3d 1490 (11th Cir. 1994), the availability of the offset was
presumed, as it was not contested by the parties. The issue before the court was whether the United
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States had adduced sufficient evidence to establish entitlement to the offset. The United States
Court of Appeals for the Eleventh Circuit stated in a footnote, citing Mays, that the question of the
availability of an offset of future damages was one of first impression in the circuit, the resolution
of which would be left for another day. The court deciding Lazoda v. United States, 140 F.R.D. 404
(D.Neb.), affm’d, 974 F.2d 886 (8th Cir. 1992) also relied upon Mays in its decision.
In the Mays case itself, the United States Court of Appeals for the Tenth Circuit did not draw
a distinction between past and future CHAMPUS benefits, and did not address the issue of
restriction on choice of future medical services, a significant question in this court's view.
In United States v. Feeley, supra., the court concluded that past medical expenses incurred
by the plaintiff and paid by CHAMPUS could not be recovered from the government defendant.
The court reasoned that CHAMPUS was not a collateral source, the funds for CHAMPUS benefits
being drawn from the general treasury of the United States. The court reached a different result with
respect to the recovery of damages for future medical expenses. We quote here at some length from
the reasoning of the Third Circuit:
The district court awarded the plaintiff Twelve Thousand Dollars ($12,000) for
future psychiatric medical expenses. 220 F.Supp. at 720. The government argues
that this was error because the plaintiff’s past practice of employing the free
government hospital and medical facilities indicate that he will do so in the future.
Therefore the government will be forced to pay twice for this future care, which it
is not required to do under the principles which precluded recovery for the past free
hospital care. However, acceptance of the government’s position would result in
forcing the plaintiff, financially speaking, to seek only the available public
assistance. Private medical care would be obtained at the plaintiff’s own expense.
We think that this is an unconscionable burden to place on the plaintiff. A victim of
another’s tort is entitled, we think, to choose within reasonable limits, his own doctor
and place of confinement, if such care is necessary...The plaintiff’s past use of the
government facilities does not ensure his future use of them. He will now have the
funds available to him to enable him to seek private care. He should not be denied
this opportunity. It is true that if the plaintiff should decide to seek care from the
Veterans’ Administration, the defendant may well be paying twice for the same
element of damages. However, this is dependant on whether the government can
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refuse to render free care. This factor, however, should not be a consideration in
awarding damages under the Federal Tort Claims Act, but rather is a policy judgment
to be made in the administration of veterans’ benefits.
Feeley, 337 F.2d at 934.
We will apply the same rule with respect to past and future medical expenses.
We find that the concerns of the Feeley and Molzof courts can be adequately addressed
through testimony which may be offered by the plaintiff on the issue. The court does not have any
information whether and to what extent Harvey may be entitled to TRICARE benefits in the future,
nor whether she wishes to avail herself of such benefits. The United States may establish that these
benefits would continue to be available. The plaintiff may, in turn, establish unavailability,
inadequacy, or disinclination to utilize the facilities and benefits available for future care. All of
these considerations would play a role in making an award of future damages, if such an award
should be appropriate.2
It is clear that, under Kentucky law, Harvey’s medical bills are admissible to “aid the jury
in determining the appropriate amount of damages for pain and suffering.” Dennis v. Fulkerson,
M.D., 343 S.W.3d 633, 638 (Ky.App. 2011), citing Beckner v. Palmore, 719 We S.W.2d 288
(Ky.App. 1986).
We reject out of hand the United States assertion that this question as to proof of damages
is a procedural one. The case of Arpin v. United States, 521 F.3d 769 (7th Cir. 2008) states that “in
a suit under the Federal Tort Claims Act, as in a diversity suit, the damages rules of the state whose
law governs the substantive issues in the case bind the federal court.” Id. at 776.3
2
Much of the preceding analysis has been taken verbatim from our earlier analysis of this issue in Winston v. United States,
Civil Action No. 3:95CV-785-S.
3
Additional cases cited by the United States arose under the Federal Employers’ Liability Act (“FELA”), not the FTCA.
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While there has been some comment concerning the wisdom of this rule in Kentucky, we
must apply the law as we find it. See, ie. Sadler v. Advanced Bionics, LLC 3:11CV-450-H, DN 172.
Therefore, motion having been made and for the reasons set forth hereinabove and the court
being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the
United States’ motion in limine to exclude medical billing evidence at the trial of this matter is
GRANTED only insofar as such evidence is offered to prove past medical expenses, because such
expenses have been satisfied by TRICARE payments and thus are not recoverable by the plaintiff.
The motion is DENIED IN ALL OTHER RESPECTS.
IT IS SO ORDERED.
June 12, 2013
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