Does the Affordable Care Act Preclude Recovery of Future Medical Expenses in Medical Malpractice Cases?

The Patient Protection and Affordable Care Act (ACA) was passed in 2010. As many of you know, although the ACA did not establish universal health insurance coverage, it did contain a requirement, known as the individual mandate, that all non-exempt U.S. residents maintain medical insurance. Seizing upon this mandate, defense attorneys across the United States have attempted to use the ACA as the latest tort reform vehicle by filing motions in limine to limit what plaintiffs can present to juries on future medical expenses — essentially arguing to Courts that the requirement of continuing medical insurance coverage will provide reimbursement for the claimed future medical expenses, thereby nullifying plaintiffs’ ability to claim these expenses. Put another way, the defendants essentially argue that the plaintiff should only be permitted claim their out-of-pocket costs for medical care, a sum that has a maximum cap under the ACA, and the current cost of purchasing their medical insurance.

Notwithstanding these arguments, plaintiffs are on very solid ground that the ACA’s maximum out-of-pocket costs are not a cap on future medical expenses. For starters, the defense position ignores the fact that many of the costs in a plaintiff’s life care plan are for medical equipment and services that health insurance is not required to cover and/or are not subject to the maximum out of pocket limit. Additionally, under the ACA, insurance plans are not required to count expenses like copayments, coinsurance payments or out-of-network payments. Next, the ACA also says that health insurers shall only cover certain “essential health benefits”, many of which do not include common items of damages that plaintiffs claim like long term care in a nursing facility or skilled nursing care (RN level) at home. Based on these limitations, plaintiffs’ lawyers who are confronted with such defense motions to limit future damages should argue that the defense claims are speculative at best as to the effect of the ACA on future damages. They should also argue that there is a significant danger of prejudicing a jury by allowing them to hear evidence of possible future insurance coverage that may or may not become a reality. Finally, a plaintiffs’ attorney should argue that any risk that damages will not covered in the future should be borne by the health care provider who committed the harm and not the injured party. In short the burden should not be shifted to the injured individual.

At STSW, our lawyers routinely handle medical malpractice matters involving claims for future medical expenses and thus, since 2010, have become well versed in opposing these and other similar defense motions to mitigate the plaintiff’s recovery. If you or a loved one has been injured and likely will require significant future medical care, equipment or services in the future, call our attorneys for a free consultation in the Baltimore or Washington D.C. area at (410) 385-2225.