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.

Collateral Source Rule Reform: SB 281 (2003).

Ohio|2003

Provides for awards in medical malpractice cases to be offset

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Provides for awards in medical malpractice cases to be offset by collateral source payments, unless the source of the reimbursement has a mandatory self-effectuating federal right of subrogation or a contractual or statutory right of subrogation.


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Collateral Source Rule Reform: HB 350 (1996).

Ohio|1996

Permits the admissibility of evidence of collateral source payments, including

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Permits the admissibility of evidence of collateral source payments, including workers’ compensation benefits, but only if there is no right of subrogation attached or the plaintiff has not paid a premium for the insurance.  The comprehensive 1996 tort reform law violated the doctrine of separation of powers and one-subject provision of the State Constitution.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).


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Challenged and Struck Down

Held unconstitutional by the Ohio Supreme Court in Ohio Academy of Trial Lawyers v. Sheward, August 1999.

Collateral Source Rule Reform: HB 1 (1987).

Ohio|1987

Provides for awards to be offset by payments of collateral

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Provides for awards to be offset by payments of collateral source benefits that have been paid or are likely to be paid within 60 months of judgment, unless the source of reimbursement has a subrogation right.  The statute providing offset of collateral source benefits received by a plaintiff violated the right to jury trial, due process, equal protection, right to open courts, and right to meaningful recovery provisions of the State Constitution.


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Challenged and Struck Down

Sorrell v. Thevenir, 633 N.E.2d 504 (Ohio 1994).