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.
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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.
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 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.
Damages Recoverable from a Dog Attack
Strict Liability of Dog Owners
Delaware’s Dog Bite Statute is beneficial in that it did away with the “one bite free” rule of the common law. With the statute, a dog owner in Delaware faces strict liability for an unprovoked dog bite or attack. The dog owner will be responsible for compensating a person for medical bills, lost wages, and pain and suffering caused by the dog bite or attack.
While the law imposes strict liability upon a dog owner for damages caused by a dog, the law does not provide for the recovery of all damages when a pet is attacked by a dog. Many clients are surprised to learn that when their pet is attacked by a dog, they may not be able to recover all of their veterinary expenses.
Pets are Personal Property
Pets in the eyes of the law are personal property, just like your car or your watch is personal property. When there is damage caused to your personal property, the amount of damages a court can award you is no more than the value of your property. The value of your personal property is not measured subjectively. The law does not take into consideration how much value you place in your vet. To the contrary, the legal value of your pet is its fair market value.
Unfortunately, this measure of damages does not translate well when your pet is injured. While you may spend thousands of dollars on veterinary bills for treatment to your cat or dog who is attacked by a dog, since your pet is personal property, you are not legally entitled to recover the full amount of your veterinary bills if the fair market value of your pet is not equally high.
So while Delaware’s Bite Law is an improvement on the common law, it did change how courts value damages when the victim of the dog bite or attack is your own pet.
If you have been a victim of a dog bite or attack, contact me to schedule a free consultation to discuss how you can be compensated for your injuries and damages.
Treatment Options during the Coronavirus Outbreak
I hope this finds you safe and healthy. While many of us are under stay-at-home orders and limiting our public exposure due to the Coronavirus pandemic, it is important to know what treatment options are available to those who have bodily injury claims. There are still treatment options available for people suffering from motor vehicle accident injuries or premises liability injuries so that they can still have the continuation of treatment that is important for a successful bodily injury claim.
Virtual medical appointments have become the new norm for treatment of non-urgent conditions. Orthopaedic practices have informed us that they are able to see patients using telemedicine. We also know that family doctors are using virtual appointments to treat patients. Clients have still been able to receive scripts for MRIs and EMG studies and have those tests performed. We have also heard from many of our clients that they have been able to continue their physical therapy appointments by taking advantage of virtual physical therapy appointments.
Virtual medical appointments are a great way to ensure that your injuries are being treated and have the continuous documentation of your injury. Adjusters use gaps in treatment to try to devalue your claim by arguing that the gap in treatment shows the injury resolved and that treatment after a gap in treatment is not related to the motor vehicle accident or incident. To ensure you have a successful claim, make sure to speak with your doctor or physical therapist about virtual appointments and prevent gaps in treatment.
We also recommend our clients keep a daily pain journal, which is something that can be done while you are at home and social distancing. The pain journal documents what symptoms you are experiencing and how your injuries are impacting your daily activities. The pain journal is a great tool for documenting ongoing symptoms and will help your personal injury attorney explain the negative impacts your injuries have had on your lifestyle.
If you have questions regarding a bodily injury claim or finding treatment for your injury, contact us so that we can help you navigate this process. Be well!