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Florida Fourth DCA rules that trial court erred when it allowed the plaintiff to introduce evidence of the amount billed by medical providers instead of the discounted amount Medicare paid in full satisfaction of her expenses

On May 19, 2021, in Gulfstream Park Racing Association, Inc. v. Volin, No. 4D19-3471, the Florida Fourth DCA reversed a personal injury judgment for the plaintiff in a premises liability negligence case involving a slip and fall at Gulfstream Park in Hallandale Beach, Florida. The Fourth DCA concluded that the trial court erred when it allowed the plaintiff to introduce evidence of the amount billed by medical providers instead of the discounted amount Medicare paid in full satisfaction of her expenses. The Fourth DCA cited as precedent for its decision Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 551 (Fla. 4th DCA 2003) (“[w]hen a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge”). The Fourth DCA noted that the Second DCA reached the same conclusion in Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 958-960 (Fla. 2d DCA 2004). The underlying rationale for these decisions in based in Florida’s collateral source statute, § 768.76, which does not treat Medicare payments as collateral sources and therefore does not provide a mechanism for setting off the amount of Medicare payments. The position taken by the Second and Fourth DCA prevents the plaintiff from obtaining a double recovery of medical expenses – first from Medicare and then from a trial verdict. The plaintiff argued that both cases were implicitly overruled by Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), in which the Florida Supreme Court ruled that a trial court had properly excluded evidence of plaintiff’s eligibility for future benefits from Medicare, Medicaid, and other social legislation as collateral sources. The Fourth DCA noted that the same argument had been rejected by the Second DCA in Thyssenkrupp, in Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020), based in part on the distinction between past and future benefits. While the Fourth DCA sided with the Second DCA on this issue, the Court certified the following question of great public importance to the Florida Supreme Court: DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?

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