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Update: The Impact of the Affordable Care Act on Personal Injury Cases

Personal injury cases may be divided into two types: those that are in litigation (with a lawsuit having been filed), and “pre-litigation” cases (that are typically settled following negotiations with an adjuster employed by the insurance company). In both types of cases, one component of the damages awarded is compensation for future medical expenses. Future medical expenses, as a component of damages, are awarded by the jury (or paid by an insurance adjuster) to make the injured party whole.

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.

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