A contentious damages issue—how discounted medical care should be valued in mass tort and other litigation—will only become more contentious as the nation as a whole moves to a regime where almost everyone has some form of third-party payor medical insurance. Special damages represent the value of medical services used to approximate a plaintiff’s out-of-pocket costs, which could be substantial in cases of permanent disability requiring extended care.
With the increasing prevalence of third-party insurance (both public and private), the recovery of medical expenses is not as straightforward as it used to be. Plaintiffs seek to recover more than they—or anyone—actually had to pay. Especially now that millions of formerly uninsured persons (and potential litigants) have obtained insurance through our quasi-universal insurance system, the gap between what health care providers nominally bill for services and what they actually accept as payment in full for those services is large and growing. See, e.g., Adam G. Todd, “An Enduring Oddity: The Collateral Source Rule in the Face of Tort Reform, the Affordable Care Act, and Increased Subrogation,” 43 McGeorge L. Rev. 965, 980–87 (2012) (discussing effect of the act on the policies underlying the collateral source rule).