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Hardi v. Mezzanotte


tion raised by appellants was preserved for review on appeal.

B. Collateral Source Issue

Whether unpaid and "written-off" medical expenses can be recovered by a plaintiff as compensatory damages is an issue of first impression in the District of Columbia. In support of their argument in the trial court, appellants rely here, as they did in the trial court, primarily upon two cases applying Virginia law, State Farm Mut. Auto Ins. Co. v. Bowers, 255 Va. 581, 500 S.E.2d 212 (Va. 1998) and McAmis v. Wallace, 980 F. Supp. 181, 185 (W.D. Va. 1997). Bowers involved a suit by an automobile insurance carrier against its insured for overpayments under a medical payments provision. 255 Va. at 583-84, 500 S.E. 2d at 212-13. Bowers' policy provided for payment of reasonable and necessary expenses incurred. Id. at 583, 500 S.E.2d at 212. The Supreme Court of Virginia, interpreting the language of the policy under the case law of Virginia, concluded that the term "incurred" referred to those amounts that the health care providers accepted as full payment for their services, and not amounts written-off by the providers. Id. at 585-86, 500 S.E.2d at 214. In McAmis, a federal court held that the collateral source rule does not permit a plaintiff to recover medical expenses written-off by her health care providers pursuant to a contract with Medicaid, since she did not incur the written-off amounts. 980 F. Supp. at 185-86. The court reasoned that under Virginia law before the collateral source rule applies, the injured party must "establish personal liability, at some time, for that amount." Id. at 185. Compensatory damages are intended to make a plaintiff whole under Virginia law, and for that to occur, " laintiff, need only receive the actual costs of medical care borne by Medicaid." Id. at 185. In McAmis, the court also rejected plaintiff's argument that she was entitled to recover the write-off as a benefit of paying taxes into the Medicaid system. Id. In making this ruling, the court recognized that Medicaid benefits do not derive from contract, but are dispersed under a social benefits program. Id.

Subsequently, the Virginia Supreme Court, distinguishing its earlier holding in Bowers, supra, held that the full amount of reasonable medical expenses may be recovered from a tortfeasor without reduction for amounts written-off by health care providers. See Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316, 321, 323 (Va. 2000). In Acuar, the appellant, who admitted liability, sought to exclude from damages medical bills written-off by the injured party's health care providers. Id. at 317. The court held that the collateral source rule applied and that the amount of damages could not be reduced. Id. at 322-23. The court reasoned that:

the focal point of the collateral source rule is not whether an injured party has "incurred" certain medical expenses. Rather, it is whether a tort victim has received benefits from a collateral source that cannot be used to reduce the amount of damages owed by a tortfeasor. . . .

Those amounts written off are as much of a benefit for which [the injured party] paid consideration as are the actual cash payments made by his health insurance carrier to the health care providers. The portions of medical expenses that health care providers write off constitute "compensation or indemnity received by a tort victim from a source collateral to the tortfeasor." Id. at 322 (quoting Schickling v. Aspinall, 235 Va. 472, 474, 369 S.E.2d 172, 174 (1988)).

The court distinguished Bowers, supra, as a case in which it construed the specific terms of an insurance contract and where "neither the tort policy of this Commonwealth nor the collateral sour

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