§ 9.4 § 9.4-2(f)(1)(v) Medicaid—recovery in Excess of Minimum Assets
Library | Elder Law (OSBar) (2017 Ed.) |
If the elder-victim has a recovery that puts him or her over the minimum Medicaid asset test, then eligibility may be lost. The elder then must go off Medicaid benefits or do a "spend down." A special-needs trust may be available if the elder is 65 years of age or younger. The attorney should consult a lawyer who specializes in settlement planning for elders. See generally chapter 8 (special-needs trusts).
§ 9.4-2(f)(1)(vi) Collateral-Source Rule
At common law, the collateral-source rule in Oregon provided that benefits received by a plaintiff from sources independent of the defendant did not diminish the amount of damages recoverable—even if the plaintiff received the benefits on account of the injury. Cary v. Burris, 169 Or 24, 28-29, 127 P2d 126 (1942). Collateral benefits included, for example, gratuitous services and medical care, insurance proceeds, continued salary and wage payments, welfare, and pension benefits. Damages, 22 Am Jur2d §§ 408-24 (2013) (updated periodically).
In 1987, this common-law rule was substantially modified by the Oregon Legislature to allow courts, after trial, to deduct certain collateral benefits from the amount of damages awarded, except for benefits received from certain sources specifically listed in what is now ORS 31.580, which provides:
(1) In a civil action, when a party is awarded damages for bodily injury or death of a person which are to be paid by another party to the action, and the party awarded damages or person injured or deceased received benefits for the injury or death other than from the party who is to pay the damages, the court may deduct from the amount of damages awarded, before the entry of a judgment, the total amount of those collateral benefits other than:
(a) Benefits which the party awarded damages, the person injured or that person's estate is obligated to repay;
(b) Life insurance or other death benefits;
(c) Insurance benefits for which the person injured or deceased or members of that person's family paid premiums; and
(d) Retirement, disability and pension plan benefits, and federal Social Security benefits.
(2) Evidence of the benefit described in subsection (1) of this section and the cost of obtaining it is not admissible at trial, but shall be received by the court by affidavit submitted after the verdict by any party to the action.
As defined above, a collateral benefit is any benefit received by a plaintiff from sources independent of the defendant. This includes insurance benefits for which the plaintiff paid premiums. Thus, if a plaintiff receives a benefit from any of the above-listed sources, the court does not have any authority to reduce the damages awarded to a plaintiff for bodily injuries at trial. And while the court does have authority to deduct certain nonqualifying collateral benefits (i.e., those benefits not specifically listed in the statute) from the amount of damages awarded by the jury, all evidence of collateral benefits remains inadmissible during the trial under ORS 31.580(2).
Furthermore, admission of a collateral benefit at trial, even for a "limited purposes," has been held to constitute an abuse of discretion and reversible error. Reinan v. Pac. Motor Trucking Co., 270 Or 208, 210, 213—214, 527 P2d 256 (1974); see Shepler v. Weyerhaeuser, 279 Or 477, 511—12, 569 P2d 1040 (1977), cert den, 434 US 1051 (1978).
A court should not, before trial, force a plaintiff to reduce total medical expenses incurred by all qualifying collateral benefits received by the plaintiff. If medical expenses were dealt with in this fashion, there would be no need for the court, postverdict, to adjust any damages awarded to plaintiff under ORS 31.580(1). This result would render ORS 31.580 meaningless and put the court in the position of determining pretrial which medical bills have been paid, who paid them, and the amounts still owing (or the amounts for which the plaintiff is still "liable"). It would also put the plaintiff in the position of having to explain to the jury why the plaintiff's total medical charges are only a portion of what is reflected on the actual billing statements. In addition, the plaintiff would not be able to offer evidence, via expert testimony, that the total medical charges reflected on the plaintiff's medical bills are reasonable in value, which the jury is instructed to consider when awarding damages. See, e.g., UCJI 70.03.
In White v. Jubitz Corp., 347 Or 212, 219 P3d 566 (2009), the Oregon Supreme Court held that Medicare write-offs are nondeductible collateral benefits under ORS 31.580(1)(d) ("federal Social Security benefits"). The injured plaintiff in White had incurred $38,977 in medical expenses, Medicare paid $13,400, and the providers "wrote off" the remainder. Citing ORS 31.580 and ORS 31.710(2)(a), the defendant argued that the trial court should have reduced the jury's award by the amount that the medical providers had written off.
With respect to the defendant's ORS 31.580 argument, the court stated:
By its terms, ORS 31.580 applies only to civil actions where a party is awarded damages for bodily injury or death. In those actions, subsection (1) permits, but does not require, a trial court to deduct from a plaintiff's award of damages those benefits that a plaintiff receives from a third party. Paragraphs (a) through (d) limit the circumstances in which a court may exercise its discretion to do so.
White, 347 Or at 222.
The court determined that the plaintiff's Medicare benefits (including the "write-offs") were within the meaning of ORS 31.580(1)(d). White, 347 Or at 230 ("we think that the term 'federal Social Security benefits' is comprehensive and includes Medicare benefits"). Thus, the court concluded that the Medicare write-offs were collateral benefits that could not be deducted from the jury award.
With respect to ORS 31.710(2)(a), which the defendant argued should limit the plaintiff's economic damages to what he actually paid or was obligated to pay, the court determined that the defendant was not entitled to have the jury's verdict reduced on that basis:
The first problem with that argument is that ORS 31.710(2) does not define or limit the compensatory damages that a plaintiff may recover. ORS 31.710(2) introduces the definition of "economic damages" with the phrase "as used in this section" and therefore defines "economic damages" for the purposes of ORS 31.710. ORS 31.710(1) indicates that the purpose of that statute is to describe the damages that are subject to a statutory cap (noneconomic damages) and those that are exempt from that cap (economic damages). Because this case does not present an issue relating to the statutory cap, the definition in ORS 31.710 is not directly applicable.
White, 347 Or at 232.
§ 9.4-2(f)(2) Noneconomic Damages
Noneconomic damages are often referred to as "pain and suffering" but include much more: "'Noneconomic damages' means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment." ORS 31.710(2)(b) (emphasis added); see also UCJI 70.02 (damages—noneconomic); UCJI 74.01 (damages—permanent injury—life expectancy—mortality tables).
In Oregon, there is no standard measurement for pain and suffering. DeMaris v. Whittier, 280 Or 25, 569 P2d 605 (1977) (finding per-diem arguments not "improper" as a suggested measure of noneconomic damages). "Juries in Oregon are merely instructed that they should award such sum as will reasonably compensate plaintiff for any pain and discomfort suffered." DeMaris, 280 Or at 29.
Accordingly, quantifying this kind of harm for an elderly person has unique challenges that requires creativity and strong advocacy in developing proof. Sometimes the extent of the pain does not come directly from the harmed individual. For example, when the person is deceased, as in a survival claim, the testimony of friends and family is vital to show the harm suffered. Even if the elderly person is living, he or she may have an altered mental state or physical frailties that prevent the person from testifying completely or accurately, and that requires the lawyer to develop the proof in other ways (e.g., through friends and family, records or notes of pain in medical or facility records, or observations by care providers).
In 1987, the Oregon Legislature capped certain noneconomic damages awards to $500,000.
Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.
ORS 31.710(1).
Damages caps have come under constitutional scrutiny, and litigators are actively debating the issues in Oregon courts. In 1999, the Oregon Supreme Court held that ORS 31.710(1) was unconstitutional as applied to personal-injury cases, because it violated Article I, section 17, of the Oregon Constitution (right to a jury trial). Lakin v. Senco Products, Inc., 329 Or 62, 82, 987 P2d 463, 473, clarified, 329 Or 369, 987 P2d 476 (1999), overruled by Horton v. Oregon Health & Sci. Univ., 359 Or 168, 376 P3d 998 (2016).
Then, in 2016, the Oregon Supreme Court rejected its reasoning in Lakin and held that a different cap under the Oregon Tort Claims Act (ORS 30.271(3)(a)) was constitutional under Article I, section 17, stating that the jury-trial clause does not impose a "substantive limit on the legislature's authority to define . . . the extent of damages available for a claim." Horton, 359 Or at 250. However, as the Horton court explained...
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