Phantom Damages Reform

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.

ATRA's Position:

ATRA supports permitting the admissibility of evidence of collateral source payments at trial or requiring awards to be offset by the amount paid to plaintiffs by collateral sources, less the amount paid by the plaintiff to secure the benefit.


Opposition Opinion:

The personal injury bar’s argument in support of the collateral source rule – that a plaintiff should not be penalized for having insurance – fails to take into account the fact the jury should full information when making as determination about damages.

Phantom Damages Reform – S.B. 251

Montana|2021

Addresses both the definition of recoverable damages and the evidence

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Addresses both the definition of recoverable damages and the evidence admissible to establish the value of medical treatment. Establishes that the reasonable value of past treatment cannot exceed the amounts actually paid to the provider. For future treatment or services that have been rendered but are still owed, the reasonable value cannot exceed the amounts necessary to satisfy the charges. Admissible evidence to show the value of past medical treatment under the bill includes only the sums paid to satisfy the providers’ charges; amounts discounted or written off cannot be considered. Evidence addressing the value of treatment for which payment is still owed or future medical care cannot include figures exceeding what providers would receive if the claims were submitted to a health insurer or government-sponsored program that covers the plaintiff. Finally, the bill abrogates the common law collateral source rule as it applies to medical expense damages.


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Unchallenged

Collateral Source Rule Reform: HB 567 (1987).

Montana|1987

Permits the admissibility of evidence of collateral source payments, unless

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Permits the admissibility of evidence of collateral source payments, unless the source of reimbursement has a subrogation right under state or federal law.   Requires a court to offset damages over $50,000.


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