An estimated 1 in 3 Americans report having difficulty paying their medical bills – that is, they have had problems affording medical bills within
the past year, or they are gradually paying past bills over time, or they have
bills they can’t afford to pay at all. Medical debt – and a host of related
problems – can result when people can’t afford to pay their medical bills.
While the chances of falling into medical debt are greater for people who
are uninsured, most people who experience difficulty paying medical bills
have health insurance. Medical debt can arise when people must pay out-of-pocket for care not covered by health insurance or to which cost-sharing
(such as deductibles) applies. Medical debt might also result from health
insurance premiums that individuals find difficult to afford.136
The Kaiser Report notes that “the consequences of medical debt can be
severe. People with unaffordable medical bills report higher rates of other
problems – including difficulty affording housing and other basic necessities,
credit card debt, bankruptcy, and barriers accessing health care.”137
C. The Proposal Unfairly Would Impose Further Significant Losses on
Persons Who Sustained Tort-Related Injuries
In view of the intractable problems associated with efforts to calculate
claimants’ out-of-pocket expenses described above, the MOOPL proposal
would produce wildly inaccurate estimates of the amounts of compensation
due claimants for the future medical expenses necessitated by their tort inju-
ries. More than likely, claimants’ recoveries would be insufficient to enable
them to pay the out-of-pocket costs for the care they need, and the difference
between what they recovered and what they might end up needing to pay
could be substantial. Yet, while the tortfeasors’ costs would be fixed by the
amount of compensation they paid, the innocent claimants would be left to
bear the entire risk that their recoveries would be adequate.138
136. Karen Pollitz et al., Medical Debt Among People With Health Insurance, KAISER
FAMILY FOUND. 1 (2014), http://kff.org/private-insurance/report/medical-debt-among-people-with-health-insurance.
137. Id.
138. See Cardeli, supra note 15, at 19 (arguing that “[w]hen a judge or jury determines
what future medical expenses will be covered by a collateral source, the injured party bears all
the risk. Any uncovered future medical expenses will come out of the injured party’s pocket.”).
Indeed, persons who suffer malpractice injuries might receive no compensation whatsoever
because they would be unable to find an attorney to represent them. Plaintiffs’ attorneys, who
are paid on a contingent fee basis, can only afford to take cases that offer the prospect of a
sufficient amount of damages to justify the costs of pursuing them. Compensation for future
medical expenses is a substantial component of the recoveries that claimants receive, “a defining damages variable.” See Jason P. Ferrante, The Affordable Care Act and Healthcare
Litigation: Adjusting Our Thoughts on Future Economic Damages, 6 CLEV. METRO. BAR
ASS’N J. 12, 12 (2014). A report by the Rand Corporation, for example, estimated that medical
costs comprised approximately 25 percent of total payments for medical liability. See DAVID
I. AUERBACH ET AL., HOW WILL THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
