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January 07, 2022

Damages For Written-Off Medical Expenses: Ninth Circuit Affirms That A Plaintiff May Not Recover Written-Off Medical Expenses Under Montana Law

In a wrongful death and survivorship action brought by an estate and surviving relatives, the Ninth Circuit in Gibson, et al., v. United States of America has affirmed a district court’s denial of an award of damages for written-off medical expenses. The Ninth Circuit certified this issue of first impression to the Montana Supreme Court, where that court held that written-off costs of medical services are not recoverable where those costs are not a detriment to the injured, and that because no payment was involved, Montana’s then-applicable statute requiring the reduction of damages due to a collateral source, “simply has no application” in the matter. As a general rule, a plaintiff may not recover an element of damages she does not in fact suffer, and the hospital’s charitable write-off of the medical bills did not constitute payment but was gratuitous assistance.