the terms of the legislation itself144 and/or by judicial decision,145 tortfeasors,
typically, are not entitled to reduce claimants’ recoveries by the amounts paid
by insurance for future medical expenses or when recoveries are subject to
governmental or contractual rights of subrogation.146
Another way in which the proposal would burden claimants with future
medical expenses is by limiting their ability to obtain quality care. As noted
144. See CONN. GEN. STAT. ANN. § 52-225a(a), (b) (West 2014) (“In any civil action . . .
wherein the claimant seeks to recover damages resulting from . . . personal injury or wrongful
death . . . arising out of the rendition of professional services by a health care provider, . . . the
court shall reduce the amount of such award . . . by an amount equal to the total of amounts
determined to have been paid . . . . Upon a finding of liability and an awarding of damages by
the trier of fact and before the court enters judgment, the court shall receive evidence from the
claimant and other appropriate persons concerning the total amount of collateral sources which
have been paid for the benefit of the claimant as of the date the court enters judgment.”); IND.
CODE ANN. § 34-44- 1-2 (West 2010) (“In a personal injury or wrongful death action, the court
shall allow the admission into evidence of . . . proof of collateral source payments . . . .”);
MINN. STAT. ANN. § 548.251( 1) (West 2008) (“‘[ C]ollateral sources’ means payments related
to the injury or disability in question made to the plaintiff, or on the plaintiff’s behalf up to the
date of the verdict . . . .”); 40 PA. CONS. STAT. ANN. § 1303.508(a) (West 2002) (“[ A] claimant
in a medical professional liability action is precluded from recovering damages for past medical expenses or past lost earnings incurred to the time of trial to the extent that the loss is
covered by a private or public benefit or gratuity that the claimant has received prior to trial.”);
WASH. REV. CODE ANN. § 7. 70.080 (West 2006) (“Any party may present evidence to the trier
of fact that the plaintiff has already been compensated for the injury complained of from any
source . . . .”).
145. See Staats v. Wegmans Food Mkts., Inc., 63 A. D.3d 1573, 1574 (N.Y. App. Div.
2009) (“We conclude, however, that the court erred in granting defendant a further offset beyond that 27-month period, and we therefore modify the order accordingly. We agree with
plaintiff that defendant failed to meet its burden of establishing ‘with reasonable certainty,’
i.e., by clear and convincing evidence, that plaintiff would remain entitled to the continued
receipt of benefits from a collateral source.”); Grell v. Bank of Am. Corp., No. 3:05-cv-1237-
J-32HTS, 2007 WL 1362728, at 3 (M. D. Fla. May 7, 2007) (“Accordingly, the Court declines
to set off potential future third party insurance or Medicare payments for future medical expenses.”); Amlotte v. United States, 292 F. Supp. 2d 922, 924 (E. D. Mich. 2003) (“[P]ayments
from a collateral source may not be set off against future medical expenses under Michigan
law . . . .”); Parker v. Esposito, 677 A.2d 1159, 1162–63 (N.J. Super. Ct. App. Div. 1996)
(“[T]he phrase ‘if a plaintiff . . . is entitled to receive benefits,’ [as used in collateral source
statute,] refers only to those benefits to be paid post-judgment to which plaintiff has an established, enforceable legal right when judgment is entered and which are not subject to modification based on future unpredictable events or conditions. In other words, future collateral
benefits are deductible [under collateral source statute] only to the extent that ‘they can be
determined with a reasonable degree of certainty.’”); Allstate Ins. Co. v. Rudnick, 761 So. 2d
289, 291-92 (Fla. 2000) (holding that future potential benefits under the medical payments
coverage were not “available” within the meaning of the statute, requiring a court to reduce
damages by amounts otherwise available from all collateral sources, and, thus, the remaining
benefits did not require a setoff).
146. See, e.g., OHIO REV. CODE ANN. § 2315.20( A) (West 2015) (“In any tort action, the
defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result
of the damages that result from an injury, death, or loss to person or property that is the subject
of the claim upon which the action is based, except if the source of collateral benefits has a
mandatory self-effectuating federal right of subrogation, a contractual right of subrogation, or
a statutory right of subrogation . . . .”).