Congratulations to Tiffany M. Shrenk, Esq. for being recognized as a Top Lawyer in the field of Personal Injury by Main Line Today in 2022. Each year lawyers around the Main Line and western suburbs nominate their colleagues for recognition as a Main Line Today Top Lawyer. Tiffany has been recognized as a Main Line Today Top Lawyer in the field of personal injury since 2019.
Lacy v. Bayhealth Medical Center: Delaware Superior Court Expands Stayton ruling to TRICARE Liens
By: Tiffany M. Shrenk, Esq.
In Lacy v. Bayhealth Medical Center, C.A. No. K20-10-005 NEP, the Delaware Superior Court ruled that a former serviceman pursuing a medical malpractice claim was barred from recovering the full amount of his medical bills, and instead, was limited to recovering only the amounts paid by his government health insurance carrier, TRICARE.
Traditionally, Delaware state law did not provide for limiting a plaintiff’s medical expenses to the amount actually paid. This was because Delaware law has followed the collateral source rule, which provided that the defendant would not receive the benefit when the plaintiff receives compensation for the injury from an independent source, such as the plaintiff’s health insurance plan.
This rule was altered by the Delaware Supreme Court’s decision in Stayton v. Delaware Health Corp., 117 A.3d 521, 526 (Del. 2015), which determined that a Medicare beneficiary would be limited to recovering only the amounts of medical expenses paid by Medicare rather than the full amount billed by the medical provider. This ruling was expanded to a Medicaid beneficiary in Smith v. Mahoney,150 A.3d 1200 (Del. 2016). In Stayton and Smith, the Court recognized the collateral source at issue as government-sponsored health insurance programs.
At issue in Lacy was payments made for medical expenses by TRICARE, which the Court explained is” a Department of Defense healthcare program for active duty servicemembers, active duty family members, retirees and retiree family members, survivors, and certain former spouses worldwide.” In comparing TRICARE to Medicare and Medicaid, the Court found no compelling reason to differentiate TRICARE from Medicare or Medicaid in the collateral source context. TRICARE like Medicare and Medicaid was found to be dependent upon taxpayer funds. Given the public nature of the fund, the benefit derived by the write-offs taken by the medical providers were not determined to be benefits to the injured plaintiff, but instead viewed as benefits to the taxpayers.
The effect of Stayton, Smith, and now Lacy, is the limitation of medical expenses that can be recovered in a personal injury case when the plaintiff is a Medicare, Medicaid, or TRICARE beneficiary. With the Lacy decision, a injured plaintiff who has his medical bills paid by his TRICARE health insurance plan, can only seek to recover what has actually been paid while those with private insurance can recover the full amount billed by a provider for his medical expenses.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other personal injury matter.
SB 209: Commercial Carrier UIM/UM Bill Passes the Delaware Senate
On April 14, 2022, Senate Bill 209 requiring commercial carriers to carry $1 million in underinsured/uninsured (UIM/UM) limits unanimously passed the Delaware Senate. This Act provides additional coverage for passengers of public transportation, specifically buses, taxis, and limousines, matching the coverage that has already been required by law to protect passengers of “Transportation Network Companies”, more familiarly known as ride-share applications.
The Act increases the amount of coverage for bodily injury, death, and property damage required for the Delaware Transportation Authority – the operator of the “DART” buses – to $1 million. The current requirement is for $300,000 of coverage. Additionally, the Act requires the Delaware Transportation Authority, Transportation Network Companies and other public carriers to possess underinsured/uninsured motorist coverage of at least $1 million per incident. This would be a significant departure from what has been the law for public carriers as there currently is no requirement for underinsured/uninsured motorist coverage in any amount for public carriers. While these coverages must be offered by insurance companies, they can be waived and are not mandatory.
Underinsured motorist coverage provides an additional source of recovery for someone injured in a car or bus accident when the at-fault driver does not have sufficient insurance coverage to compensate for the amount of injuries caused by the accident. The related uninsured motorist coverage provides a source of recovery for someone injured in an accident when the at-fault driver is not insured.
Now that Senate Bill 209 has passed the Delaware Senate, it will be heard by the House Economic Development/Banking/Insurance & Commerce Committee. If successful in the House, the Act can be signed by the Governor and become effective as law later this year.
THE COLLATERAL SOURCE RULE AND HOW IT APPLIES TO YOUR PERSONAL INJURY CASE
-Tiffany M. Shrenk, Esq.
The amount of medical expenses is one element of damages a plaintiff in a personal injury case can seek to recover. The collateral source rule allows a plaintiff to recover for her reasonable medical expenses even though all or a portion of the medical bill was paid by an independent source, such as the plaintiff’s health insurance. The reasoning for the collateral source rule has been that the wrongdoer – such as the driver who caused the accident – should not get the benefit of the plaintiff’s resources. Said differently, the wrongdoer should not receive a reduction in the amount of damages that are owed to the plaintiff because of a source – such as health insurance – that provides coverage to plaintiff.
This rule of law is best explained to a client by reviewing a doctor’s bill. On the bill, there are line items for the billed amount, adjustments (or write-offs) taken as a result of the client’s insurance benefits, and the amount paid. When the collateral source rule applies the plaintiff can be awarded the amount billed – so long as it is reasonable – and not just the amount ultimately paid. The application of the rule is favorable to a plaintiff in a personal injury case because the plaintiff can plead the full amount of her medical bills and not just was paid to satisfy the bill. The same is true for future medical bills when a plaintiff will need ongoing medical care.
Whether the collateral source rule applies depends upon the state law applicable to the case. In Delaware, the courts still employ the collateral source rule with some limitations. The collateral source rule does not apply when a plaintiff has public or government benefits, such as Medicaid or Medicare. In those situations, the plaintiff is limited to recovering the amount paid by Medicaid or Medicare and not the full amount that was billed. These exceptions to the collateral source rule are the result of developments in case law, such as the 2015 Delaware Supreme Court case of Stayton v. DE Health Corp., et al.
The calculation of damages and determining the applicability of the collateral source rule are just some of the ways a personal injury attorney can assist with an injury case.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other civil litigation matter.
WHAT TO EXPECT AT YOUR DEFENSE MEDICAL EXAM?
WHAT TO EXPECT AT YOUR DEFENSE MEDICAL EXAM?
Often during the course of your personal injury case, you will be scheduled to meet with a doctor chosen or designated by the defense attorney. This event is referred to as a “Defense Medical Exam” or an “Independent Medical Exam.” This is the opportunity of the defense to have you examined by a doctor who will act as the defense medical expert and provide his/her own opinions concerning injuries you suffered in the accident and the course of treatment that you have undergone.
Here are some helpful tips to consider prior to attending your Defense Medical Exam:
- The Doctor is Not Neutral. Although these examinations are often referred to as an “Independent Medical Examination”, you should view the doctor as the defense team’s hired expert. The doctor is hired and paid by the defense, and there are many doctors who make a substantial living off of acting as defense experts and performing these examinations rather than treating patients. More often than not, the defense doctor will provide an opinion favorable to the party who has hired him/her so you should not expect that the doctor will be a completely neutral actor.
- The Doctor is Not Going to Provide Treatment. The role of the defense doctor is to interview you, examine you, review your records and provide an opinion. The defense doctor is not going to prescribe for you or provide you with a plan of care. The purpose of the examination is for litigation purposes only; it is not to provide you with additional treatment.
- Format of the Exam. The portions of your appointment with the defense doctor will be an interview and a physical examination. The defense doctor will also review your medical records, but he/she will complete the review of records either before or after the appointment. For the interview portion of the examination, you will be expected to discuss with the doctor how the accident occurred, your medical treatment, your symptoms, your restrictions, and any prior or subsequent injuries you have suffered.
- How to Prepare For the Exam. There is no preparation necessary for the examination, but it is a good idea to review your medical diagnoses, summary of medical treatment, and be comfortable explaining how the accident occurred and history of your injuries and treatment. Your job during the examination is to be honest and provide a truthful responses. You should be able to be descriptive of your injuries and symptoms, but not over exaggerate.
- No Visitors Allowed. While in other neighboring jurisdictions, plaintiffs can bring a chaperone or be accompanied by their attorney’s paralegal to the appointment, Delaware does not allow you to bring a chaperone or support person into the examination room with you. In rare situations where the plaintiff is a minor or suffers from a disability, the court would allow a parent or support person, but as a general rule of thumb, for Delaware cases a chaperone cannot go into the examination with the plaintiff.
Keep in mind, even if you receive an unfavorable report from the defense medical expert, your attorney can have your own medical expert review and rebut the defense medical expert’s opinions. So while it may seem like the cards are stacked against you, you will have your own medical expert to support your injury claim at trial who will most likely be a treating physician who is much more familiar with you, your treatment, and your medical history.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other civil litigation matter.
WHAT IS THE MITIGATION OF DAMAGES PRINCIPLE AND HOW DOES IT APPLY TO YOUR CAR ACCIDENT CASE
When a person claims a right to recover damages, the law imposes a duty upon the claimant to mitigate those damages. This means that someone who has suffered a loss or injury must take advantage of reasonable opportunities to decrease the amount of damages suffered. While this principle applies in a variety of civil cases, there are a few notable situations where the mitigation of damages principle arises in a personal injury case.
If you have been in a car accident, your first introduction to the mitigation of damages principle often arises with your property damage claim. If your car has been towed from the accident scene, it will most likely be towed to a lot that incurs daily storage fees. The mitigation of damages principle arises in this scenario to require you to resolve your property damage claim without any unnecessary delays such that you are mitigating the amount of storage fees incurred.
At this stage you may receive a letter from the liability insurance carrier informing you of your duty to mitigate your damages. The mitigation of damages letter will advise you that your vehicle needs to be moved to a storage free facility and will most likely state that the insurance carrier has a storage free lot where your car can be moved. If you do not take advantage of the insurance carrier’s offer to move your car to the storage free lot, you will most likely end up with a dispute regarding the amount of storage fees the insurance company is willing to pay.
Similarly, insurance carriers often assert the mitigation of damages principle as a defense to compensating for reimbursement of rental car fees. Disputes often arise with reimbursement of rental car fees where the insurance company will not agree to compensate the claimant for keeping a rental car longer than necessary.
The next area in my personal injury practice where I find myself discussing the mitigation of damages principle with clients is with a lost wage claim. If you are unable to work because of the injuries sustained in a car accident or other incident, you are entitled to recover for your lost wages. However, the mitigation of damages principle applies so that if you are able to work in some capacity, the law imposes a duty upon you to continue to earn wages.
One scenario where this issue arises is when a doctor places a limitation on the number of hours that the injured claimant can work. Although you may no longer be able to work full-time, the mitigation of damages principle applies to impose a duty on you to find suitable part-time employment to mitigate your wage losses.
Another scenario where we see mitigation of damages principle arising with a wage loss claim is when an injured claimant has physical limitations. In this scenario, a claimant who was working a strenuous job pre-accident is no longer able to perform the job requirements due to the injuries sustained in the accident. In this scenario, if the claimant has not found alternative employment, it is common for the insurance carrier to hire a vocational expert who will perform an assessment and identify jobs that would be alternative forms of employment.
These are just a few examples of how the mitigation of damages principle may apply to your motor vehicle or personal injury case. Personal injury attorneys are experienced with handling disputes when the mitigation of damages principle is asserted as a defense and advise their clients so that they are not negatively impacted by the mitigation of damages principle. If you have been injured in a motor vehicle collision and have concerns regarding how the mitigation of damages principle will apply in your case, you should consult a personal injury attorney who will assess your situation and guide you in asserting your claim for damages.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in a variety of civil litigation matters, including personal injury, trust and estate litigation, real estate litigation, and corporate disputes. She joined MacElree Harvey in the summer of 2016 and spends her time in the Delaware office located in the Village of Centreville and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other civil litigation matter.