Medicare reimburses hospitals and other health care providers at a rate less than “charges,” i.e. the amount stated on the bill. The amount of the discount is often seventy percent or more. Should the medical expense recovery by a sucessful personal injury or wrongful death plaintiff be the amount of the charges or the discounted amount paid by Medicare?
The Supreme Court of Hawaii has ruled that the amount of the “charges” was the appropriate measure of recovery. In Bynum v. Mango the court said that “the tortfeasor is not entitled to reap the benefit of the plaintiff’s elgibility for public assistance or from the government’s economic clout in the health care market place.” Click here to read the opinion. The dissent may be read by clicking here.
Mississippi, North Carolina, South Carolina, and Wisconsin reach a similar result. California and Pennsylvania hold to the contrary. The citations to those opinions may be found in the Bynum decision.
This issue is also raising its head in Tennessee trial practice. A lawyer going to trial should have a pocket brief on this issue to aid the judge in making the correct ruling.