Cartiga’s Medical Funding Solution for the Florida Tort Reform Law

Almost one year ago, Florida enacted a tort reform law that limits the admissible evidence of medical charges that can prove recoverable damages in personal injury cases. Our assessment of that law remains the same ten months later: Using Cartiga’s medical funding to pay the charges for a client’s medical care direct to the provider creates the strong admissible evidence required under the new Florida law. Moreover, using Cartiga’s medical funding should rebut the defense argument that admissible evidence is limited to applicable Medicare and Medicaid rates. By contrast, letters of protection and medical liens generally do not provide admissible evidence of recoverable damages standing alone and will subject plaintiffs to unwanted discovery and impeachment at trial.

Cartiga’s Medical Funding Creates Admissible Evidence

The type of evidence that is now admissible to prove damages for charges for medical treatment or services (“Medical Care”) depends on which of three categories the Medical Care charges fall into at the time of trial:

1. charges that are already incurred and paid;¹
2. charges that are incurred but not yet paid;² or
3. charges are that expected but not yet incurred or paid.³

The admissible evidence for the first category of charges under the new law – charges for Medical Care that are “already incurred and paid” — is limited to “evidence of the amount already paid,” regardless of the source of payment.⁴

Using Cartiga’s medical funding to pay the medical provider directly for a client’s incurred Medical Care clearly creates admissible evidence under the new law – it shows at trial an “amount already incurred and paid” for medical charges.

The admissible evidence for the second category of charges — “incurred but not yet paid charges” — includes, but is not limited to, the amount of private health insurance coverage that is or would be obligated to be paid to satisfy the charges (plus the claimant’s co-pay or deductible). If the claimant does not have that coverage or uses Medicare or Medicaid, admissible evidence includes evidence of 120% of the applicable Medicare reimbursement rate (or 170% of the effective Medicaid rate).⁵

Cartiga’s medical funding provides a solution for these “incurred but not yet paid” Medical Care charges. Instead of trying to meet the more stringent admissibility requirements for this category of unpaid charges described above, using Cartiga’s funding to pay the medical provider directly for those charges prior to trial qualifies those amounts as incurred and paid charges that are clearly admissible.

Cartiga’s Medical Funding Establishes Damages Under The New Law

The damages recoverable for Medical Care charges under the Florida law are also limited to “reasonable and necessary cost or value of medical care rendered.” ⁶

Using Cartiga’s medical funding to directly pay the charges for a client’s Medical Care does just that: those payments establish proof of the claimant’s “reasonable and necessary cost or value of medical care rendered”.  Critically, Cartiga’s medical funding creates admissible evidence of recoverable damage under the new law based on the amount already paid regardless of the Medicare/Medicaid rate.

Proving these recoverable damages assists lawyers not only in their recovery of “economic damages” (that is, the client’s out-of-pocket expenses) but also their recovery of “non-economic” damages (that is, damages for “pain and suffering”), which are often determined to be a multiple of the economic damages.

Contrasting Letters of Protection and Medical Liens

Finally, the provisions of the new Florida law also limit in four ways the use of Letters of Protection (LOPs) and Medical Liens (Liens) as proof of damages:

• First, LOPs and Liens are not admissible evidence of recoverable damages standing alone. Furthermore, if the medical provider sells the Lien or LOP, “admissible evidence” is the lower amount paid by the third-party purchaser.⁷
• Second, LOPs will subject the medical provider to impeachment for bias at trial. That is, the medical provider will be subject to cross examination by defense counsel on the truthfulness of the charges for medical care because the provider has a personal economic interest in getting repaid on those charges.⁸
• Third, LOPs will subject the medical provider’s charges to impeachment if the charges are higher than the “market price” for the medical care.⁹
• Fourth, LOPs and Liens subject the plaintiff to significant additional discovery by defense counsel, including itemized billings for all medical expenses, whether the plaintiff had health care coverage at the time of treatment and the amount that coverage would pay, and the identity of any referral source (including the plaintiff’s attorney).¹⁰

Using Cartiga’s medical funding avoids having to confront any of these new limitations under the Florida law regarding LOPs or Liens.

Conclusion

The compelling benefits of Cartiga’s consumer legal funding, outweigh the costs, and lead to higher recoveries. Those benefits are heightened in Florida, where Cartiga’s medical funding provides admissible evidence that leads to more certain recoverable damages under the new Florida tort reform law.

This article is for marketing purposes only, does not constitute legal advice, and should not be relied upon as legal advice.

1. Section 768.0427(2)(a).
2. Section 768.0427(2)(b).
3. Section 768.0427(2)(c).
4. Section 768.0427(2)(a).
5. Section 768.0427(2)(b).
6. Section 768.0427(4).
7. Section 768.0427(2)(b)(2) and (b)(4) and Section 768.0427(3)(c).
8. Section 768.0427(3)(e).
9. Section 768.0427(3).
10. Section 768.0427(3).