What is a “collateral source” and why is the Tennessee legislature trying to changes the rules?

What is a “collateral source”?  It is a source of payment or benefit that is not relevant to issue of legal liability and damages in a personal injury case.  For example, an injured person may be covered under a group medical plan at work, or have an individual medical policy that covers some of the medical expenses caused by the accident.  Or, Medicare, Medicaid or some other governmental program may have paid most of the medical bills.  Loss of earnings due to an injury may be partially offset by Social Security disability benefits, or other disability benefits, or workers compensation benefits.

The collateral source rule is a rule of evidence that prohibits consideration of such collateral sources of payment or benefit to the plaintiff in a personal injury case.  So, where the collateral source rule is in effect, upon the trial of a personal injury case, a defendant cannot offer evidence that the plaintiff had medical insurance coverage that paid all or part of the medical expenses caused by the accident, or that he or she had a long term disability (LTD) policy, or other disability benefits.  Currently, certain advocates of “tort reform” in Tennessee (big business, insurance companies and the Chamber of Commerce) want to abolish the collateral source rule in Tennessee and permit defendants to introduce evidence of the injured plaintiff’s own medical and disability insurance coverage at trial.

Tennessee already gives doctors and hospital a big break by disallowing recovery of many collateral sources of payment or benefit to the plaintiff in medical malpractice or “health care liability” cases, T.C.A. § 29-26-119:

“In a health care liability action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury, including, but not limited to, cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually.” (Emphasis supplied)

But this is not a rule of evidence.  It is a limitation on damages, and the Tennessee Supreme Court has held that T.C.A. § 29-26-119 is “in derogation of the common law rule that allowed plaintiffs to recover medical expenses, whether paid by insurance or not” so “it must be strictly construed”, Hunter v. Ura, 163 S.W.3d 686 (2005).

How do neighboring states handle collateral source “evidence”?  Collateral sources of payment or benefit to the injured plaintiff are not allowed into evidence in Georgia.  See Denton v. Con-way Southern Express, 261 Ga. 41 (1991), (overruled on other grounds).

In Alabama, collateral sources of payment of medical expenses are admissible, under Ala. Code Sec. 12-21-45(a):

“In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.”

But the plaintiff can offer evidence that he or she is “obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed.”

In Alabama, the “collateral source rule has been abrogated, but it is a rule of evidence and not a law of damages.  Therefore, the jury has discretion to consider all the evidence and to either reduce the award or not based on the collateral source payments.”  AMF Bowling Ctrs. v. Dearman, 683 So. 2d 436, (Ala. Civ. App. 1995).

So, while Georgia does not permit any evidence of collateral sources at trial, Alabama does allow evidence of payment of medical expenses.  What should the Tennessee legislature do? If collateral sources are to be considered, should it be a rule of evidence or a rule of damages?  Tennessee already limits recovery of medical expenses to those that are reasonable and necessary and places a considerable evidentiary burden on the plaintiff to prove such with expert testimony.  And, Tennessee does not allow recovery of most “collateral sources” in medical malpractice cases.  In Georgia, by contrast, “the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation”, without the necessity of any expert testimony, O.C.G.A. § 24-9-921.

If collateral sources are to be admissible, why not ease the evidentiary burden on the plaintiff, and allow the bills to be considered upon testimony by the patient that he or she incurred the bills?

If the plaintiff’s medical or disability insurance coverage is be considered, what about the defendant’s liability insurance coverage?  Tennessee currently follows an archaic rule that even prohibits discovery of the defendant’s liability insurance coverage. Why not put all the cards on the table and let the jury know all the facts?

Note:  In one of the early “tort reform” efforts, in 1987, the Georgia legislature passed a law allowing evidence of collateral sources into evidence at trial.  The law was challenged and declared unconstitutional in 1991, in Denton v. Con-way Southern Express.  Hubert E. Hamilton was counsel for the plaintiff, Carol Denton, and successfully argued the case before the Georgia Supreme Court.

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