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

How will the Affordable Care Act affect medical liability litigation?

By Craig Brodsky to Medical Malpractice Insurance


ALL MD attorney Craig Brodsky offers his perspective on how the PPACA (Obamacare) will affect medical liability litigation.

Mr. Brodsky is a partner with the firm Goodell, Devries. He has represented attorneys, physicians, psychologists, healthcare organizations, nursing homes, group homes, developers, adoption agencies, and real estate brokers. He has developed a concentration in defending healthcare providers in birth trauma, and cerebral palsy ligation. He frequently presents to healthcare providers and attorneys on current developments in the law in medical issues.

Question 5 of 5

Interview was recorded June 12, 2015


Mike: Hi, my name’s Mike Matray, and I’m your host of Healthcare Matters, where the medical and legal community comes together to discuss healthcare matters. Today, my guest is Craig Brodsky. Mr. Brodsky is a partner with the firm Goodell, Devries.

Welcome to Healthcare Matters, Craig.

Craig: Good morning.

Mike: Right now, the most discussed topic in healthcare is the Affordable Care Act. Do you see any areas where the Affordable Care Act affects medical liability litigation, and if so, what is that?

Craig: Sure, well the interesting thing that’s been an out outgrowth of the Affordable Care Act is this mandate, the individual mandate to buy insurance policies. And when we deal with high-dollar or catastrophic injuries in malpractice cases, we’re seeing the Affordable Care Act impacting how damage claims may be put together. This is a very emerging area of the law, and it’s really not clear how the various jurisdictions are going to address it.

But the individual mandate might have a very significant impact on catastrophic injury claims, and specifically, how and what plaintiffs might recover for future damages. Often times in catastrophic injury cases, the future medical bill claims can be exorbitant. We’re talking sometimes in excess of 2, 3, 5, $10 million, for people who had severe brain injuries. The Affordable Care Act, though, has eliminated certain problems, though. For example, there’s no pre-existing injury claims, and everybody has to have insurance. So, in theory, a person could go out and buy a health insurance policy that will cover all their care for the rest of their lives. That’s a lot cheaper than paying for the actual care.

The question is whether the states will allow the type of a of damage purchasing health insurance for a claimant, and covering out-of-pocket expenses, as opposed to the actual dollar amount. This goes against what litigators know as the Collateral Source Rule, which means that money that comes from another source does not reduce the damages owed. It’s an old policy, back from English common law. So, what we’re gonna litigate in the near future, is whether buying an insurance policy and paying the out-of-pocket costs for somebody can substitute for the high-dollar costs of care. And that’s gonna be an interesting issue that’s gonna play out throughout all of the states.

Mike: How long do you think until this is settled case law, and there’s precedent that will determine, one way or another, whether the Affordable Care Act’s insurance policies would mitigate the actual liability?

Craig: Well, we’re starting to see it now at the trial levels in a number of places, and we know that there’s a California Supreme Court case that essentially allows for a reduction based on certain costs that are out there. So, I would venture to say that within three to five years, we’ll start to see a fair amount of case law on the subject in most of the jurisdictions.

Mike: Excellent. Well, thank you, Craig, for spending your afternoon with us here on Healthcare Matters. And good luck to you, and I hope to speak with you in the future.

Craig: Thanks very much for having me.