An internet television program that explores the intersection of medicine and the law.

How the Affordable Care Act Could Deflate the Overall Cost of Medical Malpractice Verdicts

By Tad Devlin to Medical Malpractice Insurance


In this episode, Healthcare Matters interviews ALL MD attorney Tad Devlin on how the collateral source rule under the Affordable Care Act—which requires individuals to purchase healthcare insurance—could affect future damages in medical malpractice verdicts, deflating the overall cost of a claim.

Devlin is a partner at KAUFMAN, DOLOWICH, VOLUCK. He practices law in California, focusing his practice in the areas of commercial and insurance litigation, ERISA/life, health and disability benefit disputes, profit sharing plan and employee stock plan disputes, real estate, financial services disputes, professional liability (lawyers, doctors, accountants, real estate, insurance agents, architects and engineers), disciplinary defense and white collar defense.

Devlin is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.

Question 4 of 4

Interview recorded June 17, 2015


Mike Matray: Hi, I’m Mike Matray and I’m the host of Healthcare Matters, where the legal and medical fields come together to discuss healthcare matters. Today’s guest is Tad Devlin. He’s partner at Kaufman Dolowich Voluck, Welcome to Healthcare Matter.

Tad Devlin: Thanks Mike, pleasure to be here with you.

Mike: One of the legal arguments being advanced in regard to medical malpractice and the Affordable Care Act centers on the collateral source rule, and whether a defendant position could, instead of paying for a lifetime of medical care for an injured patient, he or she could pay for healthcare insurance for the plaintiff through the healthcare exchange, because pre-existing conditions are no longer a cause for denial of coverage. Can you comment on that?

Tad: This seems like it could be an end-around or a way to couple up with the collateral source rule, depending upon which side of the fence you are on. I know out here in California, the microcap is a big deal, which limits the damages to $250,000 cap, which some folks say has really left a lot of claims unpursued, if you will. I think with the Affordable Care Act and future life care plans are really what could be targeted by this, because a lot of times, in TBI, total brain injury cases, or serious bodily injury cases, it’s really the life care plan and the projections outward that are what drive the case and what drives the plaintiff’s attorney to really go after the insurance company’s money and then excess insurance.

So, here, and there’s a lot of debate about the value of a life care plan, but if you’ve got the Affordable Care Act, which could make moot or neutralize some of those costs to double up at the collateral source rule, that the plaintiff is not going to get a double recovery, then I think you could see a big ratcheting back of experts who’d be willing to opine for the plaintiffs lawyers that this life care plan is going to $10, $20, $30 million.