Opinion
No. CV04-4001161S
March 22, 2010
MEMORANDUM OF DECISION RE MOTION FOR REMITTITUR (#203)
On June 22, 2009, the jury returned a verdict against the three (3) named defendants and awarded economic damages of $137,424.50. Responses to interrogatories indicated $122,424.50 of that sum represented the cost of medical care for the first admission at Saint Mary's Hospital and the remaining $15,000 represented a portion of the cost for medical care at Gaylord Hospital. The economic damages awarded were for costs incurred for the period beginning October 17, 2002, and ending in January of 2003. Ex. B of defendants' 1/6/10 memorandum. At all relevant times, the plaintiff was covered by a policy issued by Anthem Blue Cross/Blue Care ("Anthem"), which contract required medical services be provided at specified rates and expressly barred the providers from seeking any additional reimbursement from the insured plaintiff for any adjustments or write-offs. Id. Thus, plaintiff's sole obligation regarding medical expenses was his co-pay of $500, made applicable to his first admission to Saint Mary's Hospital.
The total amount claimed for treatment at Saint Mary's was $244,848.92 (for multiple admissions).
Ex. C to defendants' first filed memorandum (dated 1/6/10) established such co-pay was not required for covered in-patient rehabilitation services at Gaylord Hospital or for any covered services of physicians or surgeons outside of medical offices. See ¶ 9 of Anthem affidavit there included.
The defendants Ferrante and his practice group seek a remittitur in the full amount of the economic damages awarded ($137,424.50) minus the plaintiff's co-pay of $500. They claim all such payments — to include write-offs and adjustments — are collateral services under Connecticut General Statute § 52-225. The plaintiff, both in his opposing memorandum and at oral argument on March 8, 2010, disputes that write-offs or adjustments to medical bills are collateral sources because the statute references only amounts "paid" (See §§ 52-225a[a] and [b].) and, since in derogation of the common law, it must be strictly construed. The plaintiff asserts that, even were such write-offs or adjustments properly considered to be payments, they cannot here be credited because the parties have no way of determining which specific items in the Saint Mary's and Gaylord bills were actually awarded by the jury as economic damages (It is agreed that only a portion of the bills submitted by both providers and claimed at trial was reimbursed by way of amounts paid by Anthem.). Finally, the plaintiff asserts the write-offs were voluntary business decisions by the parties to the contract and thus not collateral sources as defined by Connecticut General Statute § 52-225b. In the event the court finds such write-offs and adjustments are collateral sources, the plaintiff seeks a credit for the $500 co-pay and the premiums paid by his employer on his behalf for the two (2) calendar years of treatment for which damages were awarded.
The plaintiff correctly argues that, under Jones v. Kramer, 267 Conn. 336 (2004), the defendants have the burden of proving "that the items of damages corresponding with the desired collateral source reduction actually are included in the award." 267 Conn., at 350. In Jones, however, the plaintiff claimed $30,000+ in medical expenses only partially covered by collateral sources and $10,000 in lost wages not covered at all by collateral sources. The jury awarded economic damages of $15,000 without any indication which claimed items of damages the jury found compensable and it therefore was "not possible to know whether the economic damages awarded by the jury included any of the medical bills or other benefits paid by collateral sources." Id. at 351. As a remedial measure, the court imposed the requirement defendants submit jury interrogatories to determine the items of damages included in the award. In the instant case, no lost wages were claimed, interrogatories were submitted to the jury, and their responses to interrogatories established damages were awarded for the first admission to Saint Mary's beginning in October of 2002 and for certain of the medical bills for treatment incurred at Gaylord Hospital. Jones did not require each medical expenditure recovered as damages be specifically delineated within interrogatory responses. The burden of proving "items of damages corresponding with the desired collateral source reduction actually are included in the award" ( Id., at 350) was established here by submission of interrogatories which called out each hospital admission, each in-patient rehabilitation stay, each nursing home stay, and each surgical procedure and the jury's indicating both by the placement of an "x" (or checkmark) by a medical expense found compensable and the dollar amount awarded for that particular item. Unlike Jones, at 351, interrogatory responses here clearly indicated the jury was awarding damages only for some of the expenses incurred during the first admission to Saint Mary's Hospital (10/17/02-12/7/02) and some of the expenses incurred for admissions to Gaylord Hospital from 12/6/02-12/10/02 and 1/13/03-3/13/03. Jones does not mandate that, in a case such as this, the jury be submitted what could easily have been thirty (30) pages of interrogatories listing thousands of individual charges incurred for every surgical, laboratory, radiographic, pharmaceutical, anesthesia, ambulance, emergency room, physical therapy expense, or the like. Such direct correlation of expenses incurred to damages awarded also presents as an exercise in futility where, as here, no expenses remain due and owing.
At trial, defendants requested a greater number of interrogatories relating to damages awarded be submitted to the jury. The plaintiff then objected (and the court agreed); thus, the plaintiff's argument in this regard has been abandoned.
Connecticut General Statute § 52-225a(c) provides the court shall, as part of a collateral source hearing, receive evidence concerning amounts "paid, contributed, or forfeited . . . by or on behalf of the claimant . . . to secure his right to any benefit received as a result of such injury (Emphasis added)." The court therefore is not persuaded that a strict construction of the statutory language limits her consideration of only the dollar amounts paid out as opposed to payments forfeited by the providers. Under the contractual agreement between Anthem and Saint Mary's and Gaylord, the providers were required to accept reimbursement for services at specifically contracted rates; the differences between the reimbursements and the providers "customary" fees were "waived." Ex. C to defendants' 1/6/10 memorandum — ¶ 6 of Anthem affidavit. That waiver is a forfeiture and, since no statutory language may be viewed as mere surplusage, such forfeitures constitute collateral sources. Our Supreme Court has clearly enunciated that the purpose of Public Act No. 85-574 — codified as § 52-225a and extended in 1986 to apply to all personal injury cases including medical malpractice — was to "prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments." 267 Conn., at 336, 346 (2004). To distinguish between actual sums paid providers and writeoffs/fee adjustments would frustrate the purpose of the statute when, as here, the providers were barred by contract from seeking any additional payments from the plaintiff. While the providers' execution of this contract was "voluntary," the forgiveness of the plaintiff's obligation to reimburse unpaid amounts become "involuntary" upon execution of the contract. No subrogation rights existed. See Hassett v. New Haven, 49 Conn.Sup. 7, 10 (2004) aff'd. per curiam, 91 Conn.App. 245 (2005). wherein the trial court, having concluded that "[i]n economic terms, at least, the forgiveness of a debt is as much a payment as a transfer of money," clearly distinguishes between "payments" made "by or pursuant to" any "insurance" and "any contract or agreement within the meaning of § 52-225b" (as here) and payments resulting from the voluntary "acts of providers outside the statutory definitions (as in Hassett). The Appellate Court affirmed, having concluded the issues were "properly resolved" by the trial court. 91 Conn.App., at 247. The fee adjustments in the instant case must be characterized as collateral source payments for which the defendants are entitled to a reduction of economic damages awarded.
The plaintiff is entitled to a credit in the full amount of the co-pay and for the two (2) years of premiums paid by his employer on his behalf in 2002 and 2003 (Though the parties dispute the extent to which insurance premiums should be credited, they do not dispute that a credit is applicable under these circumstances since the employer made reductions from the plaintiff's gross pay for the health benefits covered.). The court is not persuaded by the defense argument that the credit ought be limited to the four (4) months during which treatment was incurred and for which damages were awarded since the reality of the insurance industry is that health insurance benefits may not be purchased on demand for selected months and the insured person yearly purchases the protection of knowing benefits will be there whenever there arises the need for medical treatment. For the seven (7) months from January of 2002 through July of 2002, the monthly premium paid was $285.04 (totaling $1,995.28); the premium paid (and the wages deducted) for the seventeen (17) months from August of 2002 through December of 2003 was $310.46 (totaling $5,277.82). The total credit for premiums paid is therefore $7,273.10.
The court rejects the argument the credit ought be reduced from $500 (the amount of the co-pay) to $150 because these defendants were found only 30% liable. No authority for that proposition was cited or can be found. The plaintiff was required to pay that amount regardless of whether any treatment was incurred in the year of payment or whether that treatment was proximately caused by another's negligence.
A remittitur of $129,651.40 is ordered and made applicable to the economic damages award. Judgment enters in the amount of $7,773.10 in economic damages and $95,000.00 in non-economic damages for a total award of $102,773.10, of which amount these defendants shall pay $30,831.93 (30% as found by the jury).