Compensating Persons Injured by Medical
Malpractice and Other Tortious Behavior
for Future Medical Expenses Under
the Affordable Care Act
Maxwell J. Mehlman, Jay Angoff, Patrick A. Malone,
Charles M. Silver, and Peter H. Weinbergeri*
In an effort to reduce the amount of compensation available to persons
injured by medical malpractice and other torts, opponents of the civil justice
system are proposing that claimants’ recovery for future care expenses be
limited to the maximum annual out-of-pocket limit for individuals covered
by health plans under the Affordable Care Act (“ACA”) 1, which in 2015 is
This proposal should be rejected for a number of reasons. First, it is based
on unreliable assumptions about the ACA. Second, it misunderstands the
scope of the maximum out-of-pocket limit, and because of that it is so impractical that it would be unworkable. Finally, it is bad public policy. Although the originating paper3 frequently highlights the effects of the proposal
on medical malpractice claimants, the proposal and the arguments against it
extend to all those who suffer tort-related injuries.
* Maxwell Mehlman is Distinguished University Professor, Arthur E. Petersilge Professor of
Law, Director, The Law-Medicine Center, Case Western Reserve University School of Law,
and Professor of Biomedical Ethics at Case Western Reserve University School of Medicine.
Jay Angoff is a partner with the law firm of Mehri & Skalet, PLLC, in Washington, D. C.,
former Insurance Commissioner for the State of Missouri, and Senior Advisor to the Secretary of Health and Human Services from 2010 until 2012, during which time he directed the
office responsible for implementing the private insurance provisions of the Affordable Care
Act. Patrick Malone is a trial lawyer and author at Patrick Malone & Associates, P. C., in
Washington, D. C. and former president of the Trial Lawyers Association of Metropolitan
Washington, D. C. Charles Silver is the McDonald Chair in Civil Procedure at the University
of Texas School of Law. Peter Weinberger is the managing partner of Spangenberg Shibley
& Liber LLP in Cleveland, Ohio, and past president of the Cuyahoga County Bar Association and the Cleveland Academy of Trial Attorneys. Research funding was provided by the
American Association for Justice Robert L. Habush Endowment.
1. Joshua Congdon-Hohman & Victor Matheson, Potential Effects of the Affordable Care
Act on the Award of Life Care Expenses, 24 J. FORENSIC ECON. 153, 153 (2013).
2. Out-of-Pocket Maximum/Limit, HEALTHCARE.GOV, https://www.healthcare.gov/
glossary/out-of-pocket-maximum-limit/ (last visited Oct. 9, 2015).