The world of health insurance and medical billing write-offs has created a hot topic in the world of personal injury trial practice, whether the measure of medical bill damages a personal injury plaintiff may recover is the amount billed by the provider or the amount paid and accepted as full and final payment by the provider. The issue has been addressed by legislation in many states. Some attorneys believe Nebraska’s Unicameral Legislature addressed the issue in a 2008 amendment to Neb. Rev. Stat. § 52-401. The pertient language of § 52-401 provides as follows:
For persons covered under private medical insurance or another private health benefit plan, the amount of the lien shall be reduced by the contracted discount or other limitation which would have been applied had the claim been submitted for reimbursement to the medical insurer or administrator of such other health benefit plan. The measure of damages for medical expenses in personal injury claims shall be the private party rate, not the discounted amount.
If read as some desire, a personal injury plaintiff who has private medical insurance or another private health plan is entitled to recover damages for which he or she will never be responsible. In Howell v.Hamilton Meats & Provisions, Inc., 227 P.3d 342, 106 Cal. Rptr. 3d 770, the Supreme Court of California determined such a result is improper and held that the plaintiff is only entitled to submit evidence of actual damages. As noted in Howell, a majority of jurisdictions have determined, in one form or another, that a personal injury plaintiff is not entitled to the windfall recovery that some believe § 52-401 has created. At the present time, there is no Nebraska case law addressing § 52-401, but the section is sure to be addressed by Nebraksa’s Supreme Court or Nebraska’s Unicmaral Legislasture in the future. At that point, we will learn whether Nebraska is state which allows for the recovery damages which have not been incurred. Until then, this is certain to be a hotly litigated topic.