The bill does not exclude drunk drivers, those texting while driving, etc. The point is that the bill penalizes workers with health insurance to the benefit of the person who caused the injury. Should the person who caused the injury get to reap the benefit of the injured person's foresight and hard work to buy health insurance?

So since the bill does not exclude drunk drivers, The Bill was "Introduced to Benefit Drunk Drivers"? That is a leap that borders on an outright lie.

The term "workers" is a stretch also, the bill does not require the person be employed. Does it?

I think the real benefit that you are concerned about is the one reaped by the lawyers. The "person's foresight and hard work to buy health insurance" did exactly what it was intended for, it covered the persons injuries. The person should have placed a wager with a bookie, if that person wanted to profit from an injury.

My tongue is not silver and I'm Catholic. I agree people should do their own research. A good place to start is Orlowski v State Farm. In that case last year, the Wisconsin Supreme Court unanimously upheld the sound public policy of the law some legislatures seek to abolish.

Was Orlowski injured by a drunk driver?

A law being 100 years old does not make it "sound public policy", nor does the fact that the Wisconsin Supreme Court upheld it make it sound. The awards in question are paid for through insurance premiums that we all pay. It is not just health insurance, it is home owners, automobile, business, umbrella and most other insurance premiums that cover these awards.

The silver tongued devil just meant that you have or are exhibiting the power of fluent and persuasive speech, but that you are trying to tempt us with something that is not right.

a·ward (-wôrd)
tr.v. a·ward·ed, a·ward·ing, a·wards
To give as legally due: awarded damages to the plaintiff.
n.
A decision, such as one made by a judge or arbitrator.

It may not be good for business to tell everyone that your clients don't get awards.

Insurance companies don't want to decrease insurance premiums and consumers do have to pay for the awards/settlements through higher premiums.

Was Orlowski injured by a drunk driver? Still waiting.

"These bills will benefit those who injure another at the expense of someone who had the foresight to buy health insurance." How? The person that bought health insurance still gets the medical bills paid for. Do you think that the medical payments should be punative? I thought that was what punitive damages were for. Your statement "My clients receive back what they have lost. This includes their medical bills" states exactly what this bill would do and there is no further "expense".

The "tempt(ing)" would relate to the devil portion of the comment, the silver tongue is just your tool.

Greg, you're right that insurance companies do not want to decrease premiums, but saying that premiums are higher without this bill is wrong. This law has been in effect for over 100 years and changing it will not change premiums.

Sorry that I forgot to answer your question about Orlowski. Neither the appellate nor supreme court decisions state whether the defendant was drunk. My reference to Orlowski is that the supreme court upheld the current law just last summer. If you are looking for a decision that upholds the current law and the driver was drunk, that would be Ellsworth published in 1999.

The bill does benefit those who injure someone at the expense of those who bought health insurance. I have paid tens of thousands of dollars in health insurance premiums over the years. One benefit of those premiums is, as we all know, that my health insurer will enter into an agreement to pay an amount less than what was charged. I paid a lot of money for that. The person who injured me should not get the benefit of what I paid for.

Medical bills are not punitive, they are compensatory. But, again, the negligent person does not get the benefit of what the injured person pays for.

Under this proposed law, my clients would receive less than what they lost. My clients only get back part of their medical bills.

"Under this proposed law, my clients would receive less than what they lost. My clients only get back part of their medical bills."

Where does it say that? They will get back the amount paid for medical expenses, the amount billed is unrelated to the amount paid. The amount a hospital bills, the amount that insurance pays and the amount uninsured pay are three different numbers. You don't like this bill because you want to get paid off of the highest of the three.
I don't blame you for that want, but don't try to hide the facts. The consumer will pay for larger awards/settlements.

"One benefit of those premiums is, as we all know, that my health insurer will enter into an agreement to pay an amount less than what was charged. I paid a lot of money for that"
You would have paid a heck of a lot more money had they not entered into this agreement. You have health insurance to cover a variety of issues and the expense is incurred accident or not.

Greg, I will take the crayons out to help you better understand.

Person A has health insurance and gets into an accident. The medical bills total $15,000 and his health insurance pays $8,000. Person B does not have health insurance and gets into the same accident and incurs the same medical bills.

The end point for both Person A and Person B is the same - they are both entitled to receive the reasonable value for the health care services they were provided.

Under the proposed law, the liability insurance company will argue that it only has to pay $8,000 for Person A's medical bills because that is what Person A's health insurance company paid. Under the proposed law, the liability insurance company would have to pay Person B the full $15,000 because Person B did not have any health insurance.

So you have two people in the same accident. Under this proposed law, Person A bought health insurance and the person who caused the accident only has to pay $8,000. Person B bought no health insurance and the person who caused the accident has to pay $15,000. This proposed law penalizes the person who bought health insurance and rewarded the person who had no health insurance.

Thanks Kev,
Just so I understand, person A gets billed $8k and pays $8k. A balance of $0. Person B gets billed $15k and pays $15k. Balance $0. But person A's $0 is less than person B's $0 because if person A got $15k they could pay their lawyer more. Crayons really help, I can see why people hire you.

Come on Greg, you even screwed it up with the crayons.

Person A (who has health insurance) gets billed $15k and, under the proposed law, gets paid $8k. Person B (who does not have health insurance) gets billed $15k and, under the proposed bill, gets paid $15k. This is either a penalty for Person A who bought health insurance or a windfall for Person B who has no health insurance. This is what changing the law will cause.

Even at your pre-crayon level of development, are you really in favor of penalizing people who have bought health insurance?

So you want person A to get the $8k in medical expenses paid and to walk away with $7k in cash. I understand that perfectly. You call having all of the medical expenses paid penalizing, I call getting paid additional cash greed.

Under Minnesota's version of the law, the defendant can argue that they only owe the victim the amount paid by the victim's health insurance company. Once that argument is made in Minnesota, the victim then gets to introduce the amount of money he paid in health insurance premiums and argue that if the defendant is going to take advantage of the victim's health insurance, then the defendant has to pay for the victim's health insurance premiums as well. Sound better? .

What if the plaintiff was on Medicaid, should the plaintiff be paid the phantom payment? The plaintiff paid nothing for the treatment.
What if the premiums are paid by an employer?

What premiums would you expect to be paid? Since most health insurance is really a month to month proposition, would you expect the premium from the month of the accident through the end of treatment be paid? I have no problem with that, but I guess the insured should really prove that they did not use their insurance for other issues. If the injured has a family coverage, would you expect the entire premium to be paid or just the amount for single coverage? Now that the defendant paid for the coverage the benefit of the insurance is his to take, correct?

The responsibility would not change. This bill just limits the medical amount to the actual amount paid for medical services.

Under the current law, the negligent person is responsible for all the victim's medical expenses. Under the proposed bill, the negligent person is responsible for only a part of the victim's medical bills. If someone is driving drunk, or texting while driving, and injures you, do you want that person to be responsible for all of your medical bills or just some of the medical bills. The current law says all. The proposed bill says some. The proposed bill makes no sense.

It makes no sense because you don't understand it. That is not the bills fault.

Obamacare will take care of everyone Bren. You voted and promoted it, so now are you saying it won't?

AWD, thank you also for your feedback. Two things come to mind. First, why do you support the change? Second, I have my full name associated with my posts. I take full responsibility for my posts. What is your name AWD?

Obamacare does not pay for any medical expenses. Obamacare is directed at making sure everyone has some type of health insurance (whether it is private, public or mixed). Thus, Obamacare does not address this troubling legislation.

Sure it does. Obamacare will eventually be universal healthcare. Own it.

The ACA will make insurance available to everyone through the exchanges. Without a preexisting condition clause, the uninsured could sign up for insurance after an accident and prior to treatment. The effect would be that there are no uninsured and the argument that the defendant benefits from the insurance would become universal. Obamacare may not address this troubling legislation, but it probably will effect it.

Greg, we had a good, informative dialogue going. Now you're showing your true troll colors.

Try that line in court, it's your best argument to date.

Sure, I would prefer a bit more of a challenge.

nope...

Do I understand correctly that damages will be limited to ny amount NOT covered by insurance, which would more or less mean the deductible and the co-pay when it came to medical expenses?

A person injured or damaged through someone else's negligence does deserve to be 'made whole', whether that is physical injuries, property damage or loss of earnings/earning potential. What has the law in Wisconsin been so far on property damage -- that is someone damages your car to the tune of $5,000? Is the plaintiff entitled to the full $5,000 or just their insurance deductible?

@Bret Eckstein... When did the legislature reduce the non-economic damages by the amount of life insurance? What was the prior amount of the $350,000 Cap, if any, preceding the change to reduce non-economic damages due to life insurance?

Bret Eckstein Sez.... "the legislature has already capped noneconomic damages at $350,000 for a spouse that is killed. This means that the value of everyone's relationship with their spouse is limited to $350,000. If you carry more than $350,000 in life insurance, the defendant will pay $0. Imagine a defendant walking into court and getting off scot-free simply because you acted responsibly in buying life insurance. That scenario is frighteningly real."

Randy,
As it applies to medical damages, the Collateral Source Rule allows the injured party to be compensated based on the amount billed by the hospital rather than the amount that the insurance provider paid. The proposed change awards the injured party full compensation for medical expenses based on what was actually paid, which includes deductible, co-payments and all related medical bills.
The confusion comes from the difference of what was billed by the hospital and what was paid to the hospital. So as an example:
If you, Randy, did something that resulted in a person being injured and you were found to be partially or completely at fault. The person that you injured went to the hospital and was billed $100,000 for services, but because they have health insurance and the insurance provider negotiates the charges the amount paid for the services was $20,000. Under the collateral source rule you would have to pay the injured party the $100,000 that was billed rather than the $20,000 expense that was incurred.

"The collateral source rule bars the admissibility of evidence at trial to show that a plaintiff's losses have been compensated from other sources, such as the plaintiff's insurance or workers compensation."

"PROBLEM: The collateral source rule keeps important information relevant to the determination of damages from reaching the jury. It allows plaintiffs to be compensated twice for the same injury."

"this bill is bad news and designed to benefit only one source: liability insurance companies."

What about the businesses and people that pay the premiums? Insurance companies don't print the money that they pay out.

"I choose to pay life insurance premiums to protect my family"

Your family will still be protected.

"What about the businesses and people that pay the premiums?" Premiums are paid to pay for damages caused. In my example, if someone kills my spouse, I cannot imagine how anyone would say that the killer should be able to reduce my damages because I chose to buy life insurance proceeds. If you feel otherwise, I think we're at an impasse.

"Your family will still be protected." This shows the fundamental disagreement between you and I here. I believe in holding people fully accountable for all damages they cause. In my example, that includes no reduction in damages because I chose to buy life insurance. You disagree. Again, we are at an impasse.

"if someone kills my spouse" "the killer"???

What if your wife is injured and dies? If she slips on a wet floor is the janitor the "killer" or is the business owner the "killer"? If she slips in your tub are you the killer?
The impasse happens because the personal injury lawyers will lose money due to this bill, and from word one have not been able to be honest with their opposition to the bill. The blog started with "Bill Introduced to Benefit Drunk Drivers at the Expense of Workers" and the lawyers opposing the bill have twisted most everything since.

There's negligence -- a custodian who neglects the ice on the front steps of his building and the wife falls down and breaks her neck -- and then there's criminal negligence -- driving the wrong way down the expressway with a BAC of three times the legal limit. That's a killer.

I was trying to limit the scope of my question to the initial example. This piece of legislation covers lots of ground, so that was not very effective in this forum.

Health insurance only has value if you 'use it'; it has no fungible 'cash value'. As it is required by federal law, without lifetime payout or insure-ability limits, The ACA insurance mandate makes it fair game as a collateral source.

Life Insurance, Vacation and to some extent Disability Insurance it would seem should be excluded collateral sources as they may potentially fit your penalty theory or unjust enrichment.

I really never know know what to do with the word 'fair' without understanding how other states have structured their laws on this subject. That would include a through analysis of the intended and unintended consequences.

It's actually both. Kevin referenced the Orlowski decision, handed down last term where all 7 supreme court justices (meaning all "liberal" and "conservative" justices) agreed that the collateral source rule fulfills both purposes of tort law. here's what the court said:

Within our law on damages we have adopted the collateral source rule, which provides that "a plaintiff's recovery cannot be reduced by payments or benefits from other sources." The policy justifications for the collateral source rule have been summarized in a number of ways. Each case emphasizes the policies relevant in that particular case. In this case, we highlight three policies central to the
collateral source rule. First, is to deter a tortfeasor's negligent conduct "by placing the full cost of the wrongful conduct on the tortfeasor." Second, is to fully
compensate the injured party. Third, is to allow the insured to receive the benefit of the premiums paid for coverage that he or she had the foresight to purchase.

Does the new law prevent the jury from awarding the plaintiff damages that do the following and more?

First, is to deter a tortfeasor's negligent conduct "by placing the full cost of the wrongful conduct on the tortfeasor." Second, is to fully
compensate the injured party. Third, is to allow the insured to receive the benefit of the premiums paid for coverage that he or she had the foresight to purchase.

Does it prevent the jury from figuring out damages? No. But it allows the defendants to introduce evidence that for 100 years has been precluded because the evidence has absolutely is absolutely irrelevant on the measure of damages. That's the point of Kevin's original article. My point is that life insurance is in the same boat as health insurance which is in the same boat as other employer benefits (such as vacation time, sick time, paid time off, or what have you). There is no meaningful distinction between these collateral sources. My goal is to challenge you as to why it is that a defendant should get the benefit of ANY of these collateral sources.

Let me leave you with this: If you truly believe that defendants should be allowed to reduce their liability for damages they caused based on payments the plaintiff receives from other places, I hope that you never feel the sting of the position you advocate, because it has the potential to be horrible.

"My goal is to challenge you as to why it is that a defendant should get the benefit of ANY of these collateral sources."

Just like in the proposed bill, the key word is MAY. I don't think that a defendant should get the benefit of collateral sources, they may get the benefit. Why do you think that the plaintiff SHOULD get a phantom medical settlement? I know why, it's money in your pocket.
Your claim that having your actual medical expenses paid, is or could be "horrible" needs to be expanded upon. Your job is to convince the jury how horrible it is, if the jury agrees they may adjust the payment accordingly. It may be horrible for the defendant to face financial ruin so that you and your client can vacation on an undeserved judgment.

This proposed bill creates a problem where none exists. I'll try to show by example.

Person A sees a chest surgeon for their broken ribs after getting into an accident. The chest surgeon charges $150 for the office visit. As part of their claim, Person A is entitled to the receive the "reasonable value" of the services provided by the chest surgeon.

Under the current law, the "reasonable value" is the amount "charged" by the chest surgeon.

Under the proposed bill, the person who caused the accident would claim that the "reasonable value" is the amount "paid" by health insurance. I'll show the absurdity this creates.

If Person A has health insurance through their employer, the "reasonable value" under this bill is the amount paid by health insurance. If the person has not met their deductible, the "reasonable value" is now higher because the health insurance has not kicked in yet to pay anything. If Person A has insurance through HIRSP, the "reasonable value" is lower as the amount paid is by HIRSP is lower. Medicaid - lower yet; Medicare - even lower.

Even more absurd is If Person A has no health insurance. Now the "reasonable value" is the amount charged by the chest surgeon because there is no health insurance company to pay anything.

The "reasonable value" of medical services has never in the history of this State been premised on the amount "paid" because of this very discrepancy.

Kevin here is where your logic fails.
This part of the bill allows you to recover your out of pocket medical costs.

So
Person A= $5000 bill
Person B= $7000 bill

Each are entitled to receive ONLY the total amount of their bill. Person A does not get to profit an additional $2000.

In the end EACH party end up getting their OOP paid for--no more no less.

This has NOTHING to do with pain and suffering or any other claims. THat is handled separately.

The "reasonable value" should be determined by the jury. The jury should be presented all numbers and the lawyers can make their case for reasonable value.

As courts and lawmakers have come to understand the details of hospital pricing and billing practices, specifically that chargemaster/list prices are set to be discounted not paid, they have begun to adopt policies to limit the recovery of medical expenses to “the amounts actually paid or incurred on behalf of the patient.”

Times change and some 100 year old laws need to change with them. When this law was written the reasonable value, of the services provided above, was probably a chicken.

All answers are $1,000,000.00

For the readers it would be of service if the bloggers post the proposed law. SB 22 can be found under WI. SB 2013 22. Question: what is the harm to allow the medical payment facts and subrogation rights to be transparent ? Subrogation payments can be settled by a compromise amount to the subrogated insurance carrier. In law school it is taught the a trial is a search for the truth. (member of State Bar of Wisconsin for 55 years and former trial lawyer and municipal judge)

"what is to stop a Wisconsin commercial health insurer from arriving at the same conclusion"

They would have a provider network that would be so small that their product/services would become worthless. Under the Obamacare 80% rule the insurance providers want the doctors to be paid well.

If there is no relevance to the evidence you should have no problem keeping it from being admitted, correct?