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Bynum v. Magno11/18/2004
rotected employee and thus dilutes the prophylactic purposes of a back pay award[.]" Id. at 282, 971 P.2d at 1117 (citation omitted). This court also stated that such an outcome would "result in a windfall to the employer who committed the illegal discrimination" and that, " lthough collateral source payments represent additional benefits to [the plaintiff], as between the employer, whose action caused the discharge, and the employee, who may have experienced other non-compensable losses, it is fitting that the burden be placed on the employer." Id. (citations and quotation marks omitted). Thus, this court applied the collateral source rule to the unemployment benefits paid to the plaintiff.
In contrast to Sam Teague, Ltd., the alleged benefit received by Joseph -- i.e., the amount written off by his health care providers -- does not serve to deter future conduct. Thus, recovery of only the amount paid cannot be said to "dilute the prophylactic purposes of" an award for medical expenses. See id. (citation omitted). Moreover, inasmuch as the instant case concerns the recovery of medical expenses, which are awarded for compensable losses, it is irrelevant whether Joseph "may have experienced other non-compensable losses[.]" Additionally, the court in Sam Teague, Ltd. applied the collateral source rule to payments -- not write offs -- made by a collateral source. Id. at 281-83, 971 P.2d at 1116-18. Thus, this court's decision in Sam Teague, Ltd. is inapposite to the certified question before us.
In conclusion, I believe that the questions presented to this court can be answered by applying the existing precedent in this jurisdiction regarding Hawaii's special damages law. The majority offers no compelling justification or cogent reason to disregard our precedent and resort to the Restatement's discussion of the collateral source rule to overcompensate Medicare and/or Medicaid beneficiaries. Based on the foregoing, I would conclude that, when a health care provider writes off a portion of a Medicare and/or Medicaid beneficiary's medical expenses, the beneficiary does not incur any liability for such amount and would, therefore, hold that the beneficiary's recovery of the reasonable value of medical services does not include the written-off amount as compensatory special damages. Accordingly, I would answer both questions certified by the federal district court in the affirmative.
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