Whether it is a gift or the product of a contract of employment or of insurance, the purposes of the parties to it are obviously better served and the
interests of society are likely to be better served if the injured person is
benefitted [sic] than if the wrongdoer is benefitted [sic]. Legal “
compensation” for personal injuries does not actually compensate. Not many people would sell an arm for the average or even the maximum amount that
juries award for loss of an arm. Moreover the injured person seldom gets
the compensation he “recovers”, for a substantial attorney’s fee usually
comes out of it. There is a limit to what a negligent wrongdoer can fairly,
i.e., consistently with the balance of individual and social interests, be required to pay. But it is not necessarily reduced by the injured person’s getting money or care from a collateral source.150
The corrective justice objective of the collateral source rule was recently
reaffirmed by the Supreme Court of Appeals of West Virginia.151 Noting that
the rule has been “a staple of American tort law since before the Civil
War,”152 the court called it “a central part of the tort system’s goal of requiring tortfeasors to make right their wrongful acts,”153 adding that “[t]he primary unifying principle of tort law is one of corrective justice, that is, the law
establishes a legal duty for a tortfeasor to repair any damage or losses carelessly inflicted upon a victim.”154
D. The Proposal Would Deprive Injured Persons of a Legal Remedy
If the MOOPL proposal were adopted, claimants would risk not only being
inadequately compensated for malpractice and other tort-related injuries, but
also receiving 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.155 Com-
150. Hudson v. Lazarus, 217 F.2d 344, 346 ( D. C. Cir. 1954). Hudson v. Lazarus, 217
F.2d 344, 346 ( D. C. Cir. 1954).
151. Kenney v. Liston, 760 S.E.2d 434, 449 (W. Va. 2014).
152. Id. at 440.
153. Id. at 445.
155. See AUERBACH, supra note 138, at 43 (“Claim frequency is, in part, determined by
the incentives that potential claimants and attorneys face in deciding whether to pursue claims,
and norms regarding subrogation can alter the total amount of compensation available to an
injured party. For example, in an environment in which subrogation generally does not occur,
if Medicaid is expected to pay $500 for medical care and then a liability insurer is expected to
make a payment of $1,000 to an injured party, a potential claimant should file a claim if the
costs of doing so are less than $1,500. However, if subrogation were widespread, then Medicaid would recover $500 of the $1,000 payment from the liability insurer, leaving only $1,000
available in total compensation to the injured party and thus potentially reducing the incentive
to file a claim in the first place.”).