the precarious fiscal state of public entitlement programs continue to pressure
the government to try to recoup whatever it can from tort settlements and
recoveries, potentially regardless of the amounts in settlements or awards allocated for future expenses.102 Moreover, claimants who need significant future care will be disproportionately affected; their tort injuries will be so serious that they are likely to have lost private insurance and, therefore, be
dependent on public programs such as Medicare for their future care.103
Tortfeasors should not be able to offset against the compensation they give
claimants with the amount that claimants must pay to reimburse public programs such as Medicare.104 Such an offset is precluded by the common law
collateral source rule and by the language of statutory collateral source
rules.105 But providing claimants with the necessary compensation would require accurately predicting what medical care those public programs will
cover in the future, how much they will pay, and how much they will seek to
be reimbursed, which is impossible. The result is that claimants are likely to
recover far less under the MOOPL proposal than they would need to enable
them both to reimburse Medicare and pay their out-of-pocket expenses for
102. See Hook Law Ctr., Medicare Set-Aside Arrangements in Third Party Liability
Cases, HOOKLAWCENTER.COM (2012), http://hooklawcenter.com/pdf/pubs/personal-injury-consulting/hlc-medicare-set-aside-arrangements-in-third-party-liability-cases.pdf (citing
“The Medicare Secondary Payor Act also applies to third party liability situations in which the
settlement or award includes payment for future medical expenses. Medicare is not bound by
the release with respect to an allocation for future medical expenses.”).
103. See Fagel, supra note 14, at 4 (stating that “in most cases involving significant future
medical costs, it is . . . likely that the plaintiff would have lost their private health insurance
and gone on [Medicaid] or Medicare long before the resolution of their claim.”).
104. See McGovern & Morio, supra note 54, at 1 (The authors state that “[ i]n states that
do not enforce the common law collateral source rule, which precludes the reduction of a personal injury award by the amount of compensation a plaintiff receives from a source other than
the tortfeasor, such awards should be reduced to the cost of obtaining necessary insurance to
pay for the [future] care, so long as the insurer does not maintain a legal right of subrogation.”) (emphasis in original).
105. See Bryce Benjet, A Review of State Law Modifying the Collateral Source Rule:
Seeking Greater Fairness in Economic Damages Awards, 76 DEF. COUNS. J. 210, 211 (2009)
(the author states, “The majority of the statutes [modifying the collateral source rule] prohibit
the recovery of damages that have been paid by a collateral source. However, these statutes
generally exclude collateral payments for which there are subrogation rights, to ensure that a
plaintiff is not undercompensated.”).
106. See Rebecca Levenson, Allocating the Costs of Harm To Whom They Are Due: Modifying the Collateral Source Rule After Health Care Reform, 160 U. PA. L. REV. 921, 930 n. 41
(2012) ( “In some cases, subrogation can result in reductions from noneconomic as well as
economic damages because, after the legal fees and costs of their suit, the claimant’s economic
damages may not satisfy the subrogation agreement.”); see Gregory Pitts, Comment, E.R.I.S. A.
Subrogation as Interpreted Within the Seventh Circuit— A Roadmap for Managing First Dollar Recovery, 35 J. MARSHALL L. REV. 765, 769-70 (2002); see also Hook Law Ctr., supra
note 102 at 2 (“The Medicare Secondary Payor Act also applies to third party liability situa-