Chickaway v. United States of America
Filing
96
ORDER granting Plaintiff's 84 Motion in Limine. Signed by District Judge Carlton W. Reeves on 08/07/2012 (WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WENDY CHICKAWAY, INDIVIDUALLY
AND AS ADMINISTRATOR AND
PERSONAL REPRESENTATIVE OF THE
ESTATE OF BRANDON PHILLIPS, A
MINOR, AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES
OF BRANDON PHILLIPS, DECEASED
PLAINTIFF
V.
CAUSE NO. 4:11-CV-00022-CWR-LRA
UNITED STATES OF AMERICA
DEFENDANT
ORDER GRANTING MOTION IN LIMINE
In Mississippi, it has been “long established”1 that payments from a collateral source
cannot be introduced to diminish a plaintiff’s economic damages, and “Medicaid payments are
subject to the collateral source rule.”2 For that reason, Chickaway’s motion in limine requesting
exclusion of evidence regarding Medicaid payments is granted.
In this medical-malpractice case, Chickaway’s claim for damages includes medical bills
totaling $894,173.07.3 At this matter’s pretrial conference, the Government represented that
Medicaid negotiated the medical bills down to approximately $91,000, and it hopes to introduce
evidence of that fact to reduce the amount of potential economic damages.
This dispute turns on the familiar “collateral source rule,” which differs slightly from
1
Robinson Prop. Grp. L.P. v. Mitchell, 7 So. 3d 240, 244 (Miss. 2009).
2
Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, 619 (Miss. 2001).
3
Motion in Limine to Exclude Collateral Sources of Medical Payment [Docket No. 84] at
1.
1
state to state.4 In Mississippi, the collateral source rule provides that “[c]ompensation or
indemnity for the loss received by plaintiff from a collateral source, wholly independent of the
wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of
damages . . . .”5
Chickaway argues that the Medicaid payment in this case is a payment from a collateral
source, and she rests her position principally on two Mississippi Supreme Court decisions handed
down in 2001 and 2002. In Brandon HMA, Inc. v. Bradshaw, 6 a jury returned a verdict in favor
of the plaintiff in a medical-malpractice suit. The medical provider argued on appeal that the trial
judge had erred by allowing the plaintiff to recover the full amount of her medical bills, even
though a portion had been “written off” by Medicaid. The Mississippi Supreme Court rejected
that argument and held that Medicaid payments, like insurance payments or any other sort of
collateral-source payments, cannot be used by a defendant “to reduce the cost of its own
4
For a very insightful discussion of the collateral source rule and the approaches that
various states use in addressing the rule, see Dan B. Dobbs, Paul T. Hayden & Ellen Bublick, The
Law of Torts § 482 (2d ed. 2011).
5
Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So. 2d 356 (1951). See also
Jeffrey Jackson & Mary Miller, 4 Ency. of Miss. Law § 25.43 (“Recovery may not be reduced by
compensation received from wholly independent third parties. This rule does not apply to
payments made by the tortfeasor himself or herself.”); id. (Supp. 2012) (citing Brandon HMA,
809 So. 2d 611); Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 18.7
(November 2011) (Mississippi’s collateral source rule “permit[s] plaintiff to include in his proof
of medical expenses the portion of those expenses that were ‘written off’ by medical providers
pursuant to Medicare and Medicaid regulations.”). A primary purpose of the rule is that “the
defendant wrongdoer should not . . . get the benefit of payments that come to the plaintiff from a
‘collateral source’ (that is collateral to the defendant).” Harper, James and Gray on Torts § 25.22
(3d ed. 2007).
6
Supra at n.1.
2
wrongdoing.”7 The Brandon HMA Court explicitly “h[e]ld that Medicaid payments are subject to
the collateral source rule.”8
A year later, in Walmart Stores, Inc. v. Frierson,9 the Mississippi Supreme Court
reaffirmed Brandon HMA in a slip-and-fall case. In Frierson, Medicaid and Medicare paid a
portion of the plaintiff’s medical bills, and the remaining sum was “written off.” The defendant
moved to forbid the plaintiff from introducing evidence regarding the amount written off, but the
trial judge denied that motion, and the Mississippi Supreme Court affirmed. The Frierson Court
reiterated that “Medicaid payments are subject to the collateral source rule” and that “a tortfeasor
cannot mitigate its damages by factoring in compensation the plaintiff received from a collateral
source other than the tortfeasor, such as insurance.”10
The Government relies on a more recent case. In 2011, the Mississippi Supreme Court
held in McGee v. River Region Medical Center11 that Medicaid payments do not necessarily fall
under the collateral source rule. In that case, a plaintiff filed a medical-malpractice suit against a
hospital which had written off a portion of its medical bills after a Medicare payment. The
McGee Court reviewed the holdings announced in Brandon HMA and Frierson and concluded
that those earlier decisions “do not . . . establish a per se rule that ‘written-off’ medical expenses
7
Id. at 618.
8
Id. at 619.
9
Walmart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002).
10
Id. at 1139.
11
McGee v. River Region Med. Ctr., 59 So. 3d 575 (Miss. 2011).
3
are admissible.”12 The difference between the conclusion reached in Brandon HMA and Frierson
and the situation presented by McGee, the Court said, was that in the 2001 and 2002 cases, the
collateral payments were made by someone other than the tortfeasor. In contrast, the McGee
Court observed that its case involved a payment (that is, the amount written off) by the defendant
itself.13 Therefore, the source of the payment was not “wholly independent of the tortfeasor.”14
In this case, the Government argues that the same scenario is presented: in other words,
that it is both the tortfeasor and the source of the Medicaid payments.15 That argument is not
compelling.
The difference between this case and the one facing the Mississippi Supreme Court in
McGee is that Chickaway’s medical bills were not written down by the defendant. The McGee
Court reasoned that if a hospital first wrote off a portion of a plaintiff’s medical bills and then
were held civilly liable for the full amount, then the hospital essentially would have paid the
written-off amount twice.16
But in this case, the entities that wrote down Chickaway’s medical bills are not the United
States but, rather, various hospitals that are not defendants to this lawsuit. Of course, the United
12
Id. at 581.
13
Id.
14
Id. (citing Coker, 52 So. 2d at 357).
15
Additionally, this case is different according to the Government because of the “stark
difference between the amount listed on the medical bills, $964,493.03 and the amount actually
paid by Medicaid, $91,766.30.” Supplemental Response in Opposition to Plaintiff’s Motion in
LImine to Exclude Collateral Sources of Medical Payments [Docket No. 88] at 2.
16
McGee, 59 So. 3d at 581.
4
States is the only proper defendant in a Federal Tort Claims Act case,17 but that fact alone does
not mean that the United States also is the tortfeasor.18 And because the United States is not the
entity that did the “writing down,” it is not entitled to diminish its liability by circumventing the
collateral source rule.19
17
Menchaca v. Frank, 993 F.2d 1544, *1 (5th Cir. 1993).
18
See, e.g., Linn v. United States, 281 Fed. Appx. 339, 344 (5th Cir. 2008) (favorably
quoting Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999)) (“The alleged tortfeasor’s
status as an ‘employee of the government’ is the sine qua non of liability under the FTCA.”);
Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (“But even if the tortfeasor’s conduct is
within the scope of his government employment . . .”); Leleux v. United States, 178 F.3d 750,
758 (5th Cir. 1999) (“[I]n Truman, the plaintiff alleged that the tortfeasor was acting in the scope
of his employment when he committed a tortious act upon her . . . .”). But see Dickens v. United
States, 545 F.2d 886, 892 (5th Cir. 1977) (“Since the Government is the alleged tortfeasor, its
liability is determined by reference to the Federal Tort Claims Act.”).
19
Although, like many other states, Mississippi has enacted various “tort reform”
measures in years since the decision in Brandon HMA, see, e.g., Miss. Code Ann. § 11-160(2)(a) (effective Sept. 1, 2004) (capping noneconomic damages in medical malpractice cases at
$500,000), unlike a number of other states, it has not sought to abolish or limit the collateral
source rule. See Law of Torts at § 482 (“As part of a tort reform program, around half of the
states have abolished or limited the collateral source rule for specified claims, frequently medical
malpractice claims and those against public entities.”). See also 4 Ency. of Miss. Law § 25.43.
The government asks this Court to apply the collateral source rule in a manner that has not been
blessed by the Mississippi Supreme Court or sanctioned by the Mississippi Legislature. The
Legislature is presumed to be aware of case law relevant to statutes it amends or enacts. Triplett
v. United States, 213 F. Supp. 887, 889 (D. Miss. 1963); Sutherland Statutory Construction §
51:1 at 203 (7th ed. 2008). It has not ordered the Mississippi Courts to proceed as the United
States would have this Court proceed, and it certainly could have exempted from the collateral
source rule write-offs or other payments made by Medicaid or other government agencies.
Furthermore, the Court rejects the Government’s argument that the injured plaintiff should not
receive the benefit of what is an overwhelming windfall. If there is a windfall from which one is
to benefit, the injured plaintiff and not the tortfeasor should receive that windfall. See Lopez v.
Safeway Stores, Inc., 212 Ariz. 198, 203, 129 P.3d 487, 492 (2006); Volunteers of Am. Colorado
Branch v. Gardenswartz, 242 P.3d 1080, 1082-83 (Colo. 2010) (“Double recovery is permitted to
an injured plaintiff because the plaintiff should be made whole by the tortfeasor, not by a
combination of compensation from the tortfeasor and collateral sources.”) (citation omitted);
Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316, 323 (2000) (“The wrongdoer cannot reap the
benefits of a contract for which the wrongdoer paid no compensation.”); Pipkins, 466 F. Supp. 2d
5
And because McGee does not control, the Court is left with Mississippi’s broader view of
Medicaid payments, which is that they are indeed subject to the collateral source rule.20 For that
reason, Chickaway’s motion in limine is granted.
SO ORDERED this Seventh day of August 2012.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
at 1262 (allowing the tortfeasor to receive a windfall is tantamount to him receiving credit for the
collateral source, which thwarts the policy rationale for the adoption of the collateral source rule).
20
Brandon HMA, supra at n.1. See also The Law of Torts, § 482, n.29 (citing Frierson,
supra, for the proposition that most courts “permit the plaintiff a full recovery,” notwithstanding
the benefit of a Medicare or Medicaid payment.); Lopez, supra, at 129 P.3d at 495 (explaining
that a majority of the courts provide that plaintiffs are entitled to claim and recover the full
amount of medical expenses; even thoses written off pursuant to contractual rate reduction).
Mississippi is in that majority. Frierson, 818 So. 2d at 1139-40; Knox v. Ferrer, 5:07cv6, 2008
WL 4446534 (S.D. Miss. Sept. 25, 2008) (Bramlette, J.) (noting that money paid by insurance
companies, gratuitous medical care, gratuitous gifts and amounts written off by medical
providers are collateral sources); Foradori v. Captain D’s, LLC, 1:03cv669, 2005 WL 6736846
(N.D. Miss. Sept. 29, 2005) (Mills, J.) (rejecting defendant’s argument that collateral source rule
should only be applied to medical expenses incurred and not those which were written off).
6
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