BY CHARLES E. “TRIP’ JOHNSON, IIINotwithstanding the collateral source rule, evidence of medical bill funding by a “litigation investment company” is admissible in a slip-and-fall tort case in federal district court, according to a recent ruling by the Eleventh Circuit Court of Appeals.1
The plaintiff sued Publix in state court, alleging injury after slipping on liquid in a grocery store. Publix removed on diversity grounds to the Middle District of Georgia.
One focus of discovery concerned the relationship between the plaintiff, her treating doctors, and third-party ML Healthcare. ML Healthcare is a “litigation investment” company that contracts with doctors to provide medical care for injured people with viable tort claims who lack medical insurance. ML Healthcare purchases at a discounted rate the medical debt that the plaintiffs incur with the right to later recover the full cost of the medical care out of any tort settlement or judgment. ML Healthcare entered into such agreements with plaintiff and the treating doctors who would testify at her trial concerning her injuries.
The trial court allowed this discovery to go forward and required ML Healthcare to testify at trial. The jury subsequently returned a defense verdict. The plaintiff appealed, and ML Healthcare joined the appeal as a third party.
The Eleventh Circuit held that the trial court had not abused its discretion by permitting evidence of ML Healthcare’s payment arrangement “for the limited purpose of showing bias on the part of the doctors who testified [at trial].“2 Publix also argued the evidence of the relationship between ML Healthcare and the doctors with which it contracted should be admitted for showing that Plaintiff’s doctors were biased in their testimony and that Plaintiff’s claimed medical expenses were unreasonable. The defense argued that ML Healthcare’s ongoing financial relationship with the treating physicians cast doubt on their independent judgment and fee structure.
While this ruling would appear to apply to cases in federal district court governed by Georgia law, it is not binding in Georgia’s state and superior courts. It is, however, persuasive authority and may sway some state court judges to admit similar evidence at trial. If a trial court permits evidence of a medical funding company’s relationship with treating physicians to be admitted into evidence, two questions must be answered by plaintiff’s counsel. First, is this as bad for the plaintiff’s case as it may initially seem? And second, in any event, how should the issue be handled it at trial? Here are a few possible strategies.
If you lose the fight over the admissibility of medical funding, smile and embrace it. Unlike some issues that plaintiffs face, this need not be a negative. In fact, it may turn an otherwise forgettable case into a moral outrage that a jury will respond to. Defendants will complain to the jury about the relationship between the medical funding company and the health care providers it works with. Fair enough. But, did the defendant offer the uninsured plaintiff any alternative after injuring her? Did the defendant, for example, offer to send plaintiff for treatment at another facility? Which is worse, borrowing money (that must be repaid) to obtain needed medical treatment, or injuring someone and refusing to help them get them needed medical care?
If the issue of medical funding is going to be a part of your trial, your rebuttal must be integrated into your entire case, not just mentioned once and forgotten. Plaintiff’s counsel must own the issue and lay the groundwork early. Being defensive is simply not an option.
If health funding testimony will be permitted at trial, be the first to raise the issue in voir dire. Bring it up in your opening and in the direct examination of your client. These are uncharted waters, so how far we can go is not yet known. For example, can we cross examine the defendant about the failure to offer a treatment alternative to the person they injured? If the issue of plaintiff’s decision to use a medical funding company is admitted in order to prove bias, this issue would seem to be fair game.
Normally, the issue of health insurance is not raised in voir dire. However, if your client’s healthcare funding is at issue, the topic is relevant. Rather than directly questioning prospective jurors about whether they are covered by health insurance, an indirect approach may yield more honest responses (and have a bigger impact):
• How many of you have no idea how you would pay for healthcare if you or a family member became sick or injured and needed multiple medical tests and doctor visits?
• How many of you personally know someone outside of your family who would have no idea how they’d pay for healthcare if they or a member of their family became sick or injured?
• How many of you have no idea what medical care would cost if you had to pay for it yourself?
• If Mrs. Smith was forced to borrow money to pay for her healthcare due to the crash at issue in this case, would any of you hold that against her if you are selected to serve as a juror?
If medical funding is going to be raised by the defense, beat them to the punch. Let the jury know that they will hear testimony about how Mrs. Smith paid for her health care. Let them also know that they will hear that she had no other option and must repay the money. Being first to raise the issue in a non-defensive way will blunt defendant’s counter-attack.
TREATING PHYSICIAN’S TESTIMONY
Medical funding will come up during the deposition or live testimony of the treating physician. Again, if we raise the issue, we control the discussion. “Doctor, at the time you were treating Mrs. Smith, did you know how she was paying for your services?” If the answer is “no,” the issue may be defused at that point. Or you might follow up by asking if the doctor’s treatment and medical opinions would have changed if he had known the source of Plaintiff’s payment for her healthcare.
If the doctor was aware of the funding source at the time of treatment, then a follow-up inquiry should be made. “Doctor, what impact, if any, did the means by which Mrs. Smith was able to afford your services affect the care you gave her? Or put more simply, “Did the way Mrs. Smith paid for her treatment with your office affect your medical judgment in his case?” By raising and defusing the issue on direct, you reduce defense counsel’s ability to harm your case and put the defense at risk of overreaching if they try.
PLAINTIFF’S DIRECT EXAMINATION
Plaintiffs are likely unaware of the medical funding controversy. This is what makes them such credible witnesses about it. A brief direct examination of your client should be sufficient to set the stage for closing arguments on this issue.
Q. Mrs. Smith, did you have health insurance available to pay for your medical treatment after you were injured?
Q. How did you pay for your treatment, then?
A. A medical funding company loaned me the money so I could get the medical care I needed.
Q. What is your understanding about whether you have to repay the money you borrowed for your medical treatment?
A. My understanding is that I do have to repay it.
Sometimes, finding a theme for your case can be a challenge. Not all cases are unique or emotionally compelling. Your client was injured by the negligence of the defendant. She was in pain and received appropriate medical treatment and is entitled to a fair award for the injuries and damages she suffered. All true statements, but not emotionally compelling. If medical funding testimony is being permitted anyway, perhaps it can be used to inject a little righteous indignation into the case:
“Not only did defendant (perhaps admittedly) injure Mrs. Smith, but he then criticized her for not having the means to pay for the healthcare he caused her to need! If defendant has an issue with how Mrs. Smith paid for her treatment, what did he do to solve the problem? The sign in many store windows reads, ‘If you break it, you buy it.’ Apparently the defendant believes that if you break it, you just have to criticize how much money the owner pays to have it fixed.” ●
Charles E. “Trip” Johnson, III is an attorney in the Atlanta office of John Foy & Associates where his practice focuses primarily on serious personal injury.
1 ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293 (11th Cir. 2018).
2 Id. at 1302.