In short, it is impossible to predict what health care services will be mandated in the future under the ACA, let alone what services that will not be
covered under the act, whether insurers will cover those services, or what
claimants will have to pay whether or not those services are covered. Neither
life care planners nor anyone else will be able to make these predictions with
any degree of accuracy. As a consequence, there is no way to award claimants
their out-of-pocket expenses for future medical care as the MOOPL proposal
contemplates.
IV. ADOP TING THE PROPOSAL WOULD BE BAD PUBLIC POLICY
The final reason that the MOOPL proposal should be rejected is that it is
not in the public interest. It would abolish the collateral source rule, reducing
the deterrent effect of the tort system and thereby reducing the quality of
health care.113 It would shift costs from tortfeasors to taxpayers, and impose
further significant losses on innocent persons who sustained tort injuries. Fi-
nally, the proposal would give tort system critics what they were unable to
obtain through the democratic process.
A. By Reducing the Deterrent Effect of the Tort System, the Proposal
Would Reduce the Quality of Health Care
A noteworthy omission in the paper proposing the MOOPL limit is the
absence of any discussion of deterrence such as the impact the proposal
would have on incentives to provide proper medical care.114 The omission is
noteworthy because the authors are both economists, and economists usually
contend that the primary purpose of the tort system is to minimize the cost of
accidents by requiring tortfeasors to “internalize” their injury-creating costs
of doing business and thereby incentivizing them to reduce injuries.115 For
economists, the tort system’s internal imperative to make accident victims
whole is interesting only because and to the extent that acting on the impera-
tive creates optimal incentives for primary conduct. Otherwise, compensation
payments are merely cash transfers with few effects on aggregate wealth.
The authors of the paper stand the conventional economic approach on its
head. They focus solely on the “make whole” objective and say nothing
about the effect their proposal would have on primary actors’ incentives.116
113. See generally id. at 158-59; see also infra section IV. B. at 31 (even in states that
have legislatively modified the common law collateral source rule, defendants typically are
not entitled to an offset for insurance payments for future medical expenses).
114. See Congdon-Hohman & Matheson, supra note 1, at 157.
115. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Wellness, 114 HARV. L.
REV. 961, 1021-27 (2001); Richard A. Posner, The Economic Approach to Law, 53 TEX. L.
REV. 757, 764 (1975); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability
Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1107 (1972).
