should be able to purchase health insurance” which meets “minimum standards for covered services.” 10 Furthermore, because of the “individual mandate” in the ACA, the authors expect virtually everyone to purchase health
insurance under the ACA. 11 Therefore, they claim, since the ACA limits the
annual out-of-pocket costs for medical care “to a maximum of $6,250 plus
the cost of a typical insurance policy in the individual market,” 12 that is the
amount that persons injured by negligence should recover from defendants
for their life care costs for medical care. 13
Defendants quickly seized upon the MOOPL proposal as it has been discussed at several national meetings, 14 and motions to limit compensation for
future medical expenses to the MOOPL have been filed in federal and state
courts. 15 So far there have been no reported decisions, but the approach put
forward in the proposal has been rejected in unpublished opinions by the U.S.
District Court in Minnesota16 and the California Court of Appeals. 17
II. THE PROPOSAL MAKES UNREALISTIC ASSUMPTIONS ABOUT THE ACA
Supporters of the proposal make a number of unwarranted and erroneous
assumptions about the ACA. They assert that claimants’ health plans will
give them access to a comprehensive, well-defined, and detailed set of med-
ical services mandated by federal law, and that the services covered by their
plans will not change over time. 18 The paper states, for example, that “the
10. Id. at 155.
11. Id. at 156-57.
12. Id. at 155. [sic] “In 2015, the maximum is $6,600 for an individual and from 2016
forward, it will be “indexed to the growth in the average health insurance premium.” See
HEALTHCARE.GOV, supra note 2; Richard S. Foster, Estimated Financial Effects of the “
Patient Protection and Affordable Care Act,” as Amended, CTRS. FOR MEDICARE & MEDICAID
SERVS. 6 (April 22, 2010), http://www.cms.gov/Research-Statistics-Data-and-Systems/Re-
13. Congdon-Hohman & Matheson, supra note 1 at 157. The authors of the paper want
to further reduce the patient’s recovery by “any pre-injury expected medical costs and penalties if uninsured.” Id. at 159. In other words, a person who chooses to pay the penalty under
the ACA for not purchasing insurance would have the penalty deducted from any compensation received for future medical expenses.
14. Bruce G. Fagel, The Collateral Source Rule Under the Affordable Care Act,
PLAINTIFF 28 (Jan. 2014), http://plaintiffmagazine.com/Jan14/Fagel_The-Collateral-Source-
15. See Seth L. Cardeli, Thwart the Assault on Future Medical Expenses, 50 TRIAL 14,
19 n. 4 (2014) (stating that MOOPL motions have been filed in federal and state courts
throughout the country, including Alabama, California, Florida, Illinois, Michigan, Minnesota,
Missouri, New York, Ohio, and Washington).
16. Halsne v. Health, No. 12-CV-2409 (SRN/JJG), 2014 WL 1153504, at 28–31 ( D.
Minn. Mar. 21, 2014).
17. Leung v. Verdugo Hills Hosp., No. B204908, 2013 WL 221654, at 5, 7, 11–12 (Cal.
App. 2d Dist. Jan. 22, 2013).