Next year, on January 1, 2014, we will see the implementation of the Affordable
Care Act, also known as ObamaCare. On that date, the so-called "individual
mandate" will take effect, essentially requiring all of us to have
health insurance coverage henceforth.
How will this affect the award of future medical expenses to an injured
party as a component of his/her damages? No one can say for sure. However,
there is a growing concern among practitioners of personal injury law
that the impact will be significant.
Consider: future medical expenses are not calculated in a vacuum, and awarded
randomly by juries to injured persons without substantiation. Rather,
juries that award injured parties future medical expenses do so as a result
of hearing expert testimony from physicians regarding the probable expenses
that the injured party could expect to incur in the future as a result
of his/her injuries. Under our current system, juries give virtually no
consideration whatsoever to whether or not the injured party has insurance
that might pay for the future medical expenses. After the implementation
of the Affordable Care Act, there is a growing - and I believe legitimate
- concern that the Act will substantially reduce the magnitude of personal
injury awards by juries. It seems likely that future medical awards by
juries will be reduced, if not entirely eradicated, since jurors will
know that plaintiffs likely enjoy health insurance coverage, and therefore
need not incur medical expenses in order to get future medical care.
How this will all play out is not yet known. However, I will go out on
a limb and predict that in the not-too-distant future, under our legal
system the award of the future medical expenses to injured parties will
be a thing of the past.