after 2016, the tax is much cheaper than the cost for the least expensive
bronze health insurance plan; in the state with the lowest premiums for health
plans on its federal exchange in 2013, Minnesota, the premium for the least
expensive bronze plan was approximately $1,320 a year. 51 Moreover, people
who are not owed a federal income tax refund may decide to neither purchase
insurance nor pay the tax, since the only recourse for the government if someone does not pay the individual mandate is to deduct it from their tax refund. 52
One reason that proponents assume that all claimants will have health insurance is that those who do not have insurance when they are injured will
purchase it because they have a duty to mitigate their damages. 53 If claimants
failed to mitigate their damages by purchasing insurance, the reasoning
seems to go, they would not be entitled to compensation from tortfeasors for
the costs of future care that insurance would have covered. 54 This view is
fundamentally incorrect because it confuses loss-mitigation with loss-trans-fer. According to the Restatement (Second) of Torts, “one injured by the tort
of another is not entitled to recover damages for any harm that he could have
avoided by the use of reasonable effort or expenditure after the commission
of the tort.” 55 The purchase of health insurance does not “avoid harm”; the
MOOPL proposal merely transfers the losses caused by the harm from the
tortfeasor to the claimant’s health insurer. Claimants therefore are not required to purchase health insurance in order to mitigate their damages.
51. See Commerce Department Releases Rate Analysis – Minnesota Retains the Number
One Rates in the Country, MINN. DEP’T OF COM. (Sept. 27, 2013), http://mn.gov/commerce/
52. See ANNIE L. MACH, CONG. RESEARCH SERV., R41331, INDIVIDUAL MANDATE UNDER
THE ACA 3 (2015).
53. See Joseph A. H. McGovern & John D. Morio, Affordable Care Act Has Potential to
Limit a Defendant’s Exposure for Future Medical Costs in New York Personal Injury Litigation, MARTINDALE.COM (Jan. 14, 2014), http://www.martindale.com/personal-injury-law/
article_Wilson-Elser-Moskowitz-Edelman-Dicker_2060248.htm (applying the duty-to-miti-gate-damages rule, “because insurance is now available to everyone, regardless of any preexisting medical conditions, sound public policy would require an injured plaintiff to purchase
insurance to pay for his future medical care”); see also Congdon-Hohman & Matheson, supra
note 1, at 156 (“If the individual was uninsured prior to the accident, the additional out-of-pocket costs for medical care for any victim of an accident is a maximum of $6,250 plus the
cost of a typical health insurance policy in the individual market less any government subsidies
for the policy, the government imposed fine for not purchasing health insurance, and the medical care costs the individual would have expected absent the accident.”). Prior to the ACA,
the argument goes, uninsured claimants would not have been able to purchase health insurance
to cover the medical costs associated with their malpractice injury because the injury would
have been considered a pre-existing condition, but they can buy insurance now because of the
guaranteed-issue requirements of the law.
54. See McGovern & Morio, supra note 54.