Opinion
No. 11–P–1943.
2012-11-19
Michelle L. HUNTER–TIDD v. Lisa B. FERZOCO & another.
G.L. c. 231, § 60G, as amended by St.1991, c. 398, § 95A. Subsection (e) further provides that federally-based public assistance benefits received as a result of medical malpractice are not subject to reduction and are, in fact, subject to a lien by the department providing such benefits.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from an amended judgment reducing a jury award. In a medical malpractice action, the jury found for the plaintiff and awarded damages as follows: $68,300 for reasonable medical expenses; $12,000 for impairment of earning capacity; and $12,000 for pain and suffering.
The jury also awarded the plaintiff's son $3,700 for loss of consortium. A separate judgment entered for the son. That judgment is not at issue.
Following the entry of judgment, Lisa B. Ferzoco (defendant) moved to amend the judgment by reducing, pursuant to G.L. c. 231, § 60G, the medical expenses award to $21,258.31–the amount of a MassHealth lien against the plaintiff for medical expenses arising out of the medical malpractice.
The trial judge denied the reduction, and the defendant moved for reconsideration. After a hearing, the judge issued an order reducing the amount of the medical expenses award to the amount of the MassHealth lien. The only issue on appeal is whether the reduction of the award by the amount of medical expenses not subject to the MassHealth lien was proper. We affirm. Discussion. This issue is governed by c. 231, § 60G, which provides, in part:
The plaintiff's total medical expenses relating to the medical malpractice were $68,300. As a low income individual, MassHealth covered the entirety of those expenses. Of the $68,300 total, MassHealth claimed a lien only on $21,258.31.
(a) In every action for malpractice ... in which the plaintiff seeks to recover for the costs of medical care, ... the court shall hear evidence of any amount of such damages incurred prior to the judgment which the defendant or defendants claim was replaced, compensated or indemnified....
(b) If the court finds that any such cost or expense was replaced, compensated, or indemnified from any collateral source, it shall reduce the amount of the award by such finding....”
G.L. c. 231, § 60G, as amended by St.1991, c. 398, § 95A. Subsection (e) further provides that federally-based public assistance benefits received as a result of medical malpractice are not subject to reduction and are, in fact, subject to a lien by the department providing such benefits.
We first note that the plaintiff took the position at trial that the medical expenses award should be reduced to the amount of the MassHealth lien pursuant to G.L. c. 231, § 60G. Specifically, the plaintiff's counsel stated:
“I think that the plaintiff would waive all the medical bills except those that are the subject of the lien of MassHealth.... [T]hose are the only bills that would not get subtracted from the verdict should there be a verdict returned for plaintiff.”
Second, to the extent that the plaintiff argues that federally-based benefits should not be deducted from the award, the argument is superfluous because the amount of the MassHealth lien was not so deducted. See Harlow v. Chin, 405 Mass. 697, 708–712 (1989).
To the extent the plaintiff argues that because her medical bills were admitted in evidence pursuant to G.L. c. 233, § 79, these expenses could not later be deducted, this argument fails because G.L. c. 233, § 79, addresses the admissibility of the medical bills at trial and does not affect the reduction of the award in the circumstances spelled out in G.L. c. 231, § 60G.
The plaintiff's claim that there was insufficient evidence to support the reduction is also without merit, as the amount of the MassHealth lien, as well as the remaining amount of the medical expenses award and the plaintiff's lack of liability for its payment, were undisputed.
The plaintiff's claim of “potential for unequal treatment of plaintiff classes” fails for the reason, if no other, that it was not raised below. See Picciotto v. Chief Justice of the Superior Ct., 446 Mass. 1015, 1016 n. 2 (2006).
The plaintiff's assertion that the issue of award reduction should be addressed under the common law does not constitute reasoned appellate argument supported by citations to relevant legal authorities. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even if common-law principles were applied here, the result would not change, as the plaintiff has neither paid for the medical expenses in question, nor incurred liability for them. Any award of medical expenses not included in the MassHealth lien would not be compensatory and would result in a windfall to the plaintiff. See Daniels v. Celeste, 303 Mass. 148, 150 (1939).
Amended judgment entered May 20, 2010, affirmed.