This article of mine was recently published in the Pennsylvania Law Weekly on July 26, 2024 and is republished here with permission.
Appellate Guidance Needed on Out-of-State Medical Expenses in Motor Vehicle Accident Cases
By Daniel E. Cummins | July 26, 2024
Issues regarding the recoverability of medical expenses charged by out-of-state medical providers for treatment following a Pennsylvania motor vehicle accident are often disputed.
One such issue concerns whether medical expenses for treatment rendered to a person outside of Pennsylvania following a motor vehicle accident are even recoverable in a Pennsylvania motor vehicle accident lawsuit given the cost containment provisions of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL).
A second related issue is whether, if such out-of-state past medical expenses are recoverable, do those past medical expenses have to be reduced in accordance with Act 6 of Pennsylvania’s MVFRL as set forth in 75 Pa.C.S.A. Section 1797 before they can be presented to, or awarded by, a jury.
While there is a lack of appellate guidance on these issues, a few notable decisions have been handed down by Pennsylvania trial court judges across the commonwealth.
Are Out-of-State Past Medical Expenses Even Recoverable?
In the case of Scheid v. Gabrell, No. 1009-CV-2000 (C.P. Pike Co. 2005), the late Judge Joseph F. Kameen Jr. of the Pike County Court of Common Pleas addressed the issue of whether medical expenses incurred by a Pennsylvania resident plaintiff for treatment rendered by an out-of-state doctor in that other state was recoverable at a motor vehicle accident trial. In this regard, Kameen had to address which state’s law to apply.
The applicable Pennsylvania statutory law in this regard is found in the Motor Vehicle Financial Responsibility Law at 75 Pa.C.S.A. Sections 1720 and 1722. These statutes, when read together, prohibit claims for past medical expenses arising out of a motor vehicle accident where the person seeking damages is eligible for other insurance coverage to cover the same expenses.
After completing a conflicts of law analysis, the trial court in Scheid chose to apply Pennsylvania law. Kameen went on to rule that, given the preclusion against recovery of medical expenses in motor vehicle accident cases as found under 75 Pa.C.S.A. Section 1720 and 1722 of Pennsylvania’s Motor Vehicle Financial Responsibility Law, the plaintiff was not permitted to pursue past medical expenses damages at trial.
In so ruling, the court in Scheid relied, in part, on the federal district court decision in the case of O’Malley v. Vilsmeier Auctions Co., 986 F. Supp. 306 (E.D.Pa. 1997). In O’Malley, the court ruled that Section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law could not preclude an out-of-state insurer from obtaining subrogation against their out-of-state insureds. The court ruled in this fashion after finding that the prohibition against subrogation contained in section 1720 could not be applied to out-of-state insurers in their dealings with out-of-state insureds.
In Scheid, the court was instead faced with a Pennsylvania plaintiff who was involved in a Pennsylvania accident with a Pennsylvania defendant. The plaintiff who lived close to one of the borders of Pennsylvania, crossed state lines to treat with medical providers located outside of Pennsylvania. The plaintiff claimed that her out-of-state medical providers were asserting liens and were looking to be paid for the treatment that was rendered.
Prior to trial, the defense filed a motion in limine seeking to preclude the plaintiff from recovering the claimed medical expenses given the prohibition under Pennsylvania law that precluded any medical provider from seeking subrogation for medical expenses in a Pennsylvania motor vehicle accident matter and which law also therefore precluded the plaintiffs from recovering such medical expenses at trial as a result.
The trial court in Scheid agreed with the defense and the Pennsylvania resident plaintiff’s claims for medical expenses were precluded from being presented at trial.
Contrary results have been reached by Pennsylvania courts in this regard where the plaintiff is not a resident of Pennsylvania.
In the federal court case of Armstrong v. Antique Automobile Club of America, 670 F. Supp. 2d 387, 394 (M.D. Pa. 2009), the court ruled that the anti-recovery provisions of Pennsylvania Motor Vehicle Financial Responsibility Law found under Sections 1720 and 1722 did not apply in action to recover for injuries sustained by a motor vehicle accident plaintiff who was a resident of Texas and who was insured by an out-of-state insurer for medical expenses. In that case, the plaintiff had presented evidence that her out-of-state insurer had contractual right of subrogation as to payments for medical expenses that it had paid.
In so ruling, the Armstrong court, in part, relied upon the decision of Gagnon v. Lemoyne Sleeper, 1:CV-0502081, 2008 WL 5061677 at *3 (M.D. Pa. 2008) for the proposition that Sections 1720 and 1722 cannot be applied against an out-of-state insurer with out-of-state insureds. See also Abed-Rabuh v. Hoobrajh, No. 3:17-CV-15, 2019 WL 4935208, at *2 (W.D. Pa. July 2, 2019); Serrano v. Cowles, No. CIV.A. 06-5075, 2008 WL 4442532, at *2 (E.D. Pa. Sept. 30, 2008).
The above trial court decisions support the notion that, where the plaintiff is an out-of-state resident, that the plaintiff will be able to present evidence of, and recover for, his past medical expenses for out-of-state treatment. However, a Pennsylvania resident plaintiff, who treats outside of Pennsylvania, might not be able to cover those past medical expenses under the applicable law. Whether this is a fair application of the law or not may be the subject of future decisions on the issue.
Do Out-of-State Past Medical Expenses Have to be Reduced?
Another issue involving expenses for out-of-state treatment following a motor vehicle accident that occurred in Pennsylvania is whether such expenses must be reduced Act 6 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1797, before such expenses are presented to a jury for consideration. That issue was just recently addressed, as a matter of first impression, by Judge Alan D. Hertzberg of the Allegheny County Common Pleas Court in the case of Yurek v. Bower, No. GD18012387 (C.P. Allegh. Co. July 3, 2024).
In the case of Yurek, Hertzberg issued a Rule 1925 opinion following a motor vehicle accident and, as part of the post-trial issues presented, considered the issue of whether medical bills related to treatment provided to the plaintiff by an out-of-state doctor are subject to reduction under Act 6.
Hertzberg wrote that neither party provided him with any appellate case law on the issue and the judge also noted that he could not locate an appellate decision addressing this topic.
According to the opinion, following the subject accident, the plaintiff underwent a cervical spine fusion surgery which was performed in Florida.
The case eventually went to trial and, as part of the verdict, the jury awarded $150,000 in past medical expenses, most of which was related to the cost of the surgical treatment that took place in Florida.
During the post-trial proceedings, one of the issues raised was the trial court’s refusal to reduce the amount of the past medical expenses award any more than down to the figure of $148,000, which was the actual cost of the surgery plus the surgical center’s charges.
The defense asserted that the trial court erred in denying the defense motion to mold the jury’s $150,000 past medical expenses award down to $9,882.00 under an application of Act 6 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. Section 1797(a).
Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law allows for a recovery of medical bills at up to 110% of what Medicare would pay a provider for the same service.
According to the opinion, at trial, Hertzberg allowed the plaintiff to introduce the total amount of the medical bills into evidence without any Act 6 reduction. However, the court also confirmed at trial that it would consider a for a post-trial motion requesting a molding of any medical expenses award downward under Act 6. The court stated that it took this approach based upon the Superior Court’s decision in the case of Pittsburgh Neurosurgery Associates v. Danner, 733 A.2d 1279, 1285 (Pa. Super. 1999), which allowed for medical bills to be presented at trial in full, subject to potentially being molded in a post-trial proceeding.
In the Yurek case, the court emphasized that, during trial, the treating doctor from Florida testified that he was not licensed in Pennsylvania and that he did not perform any medical work in Pennsylvania.
There was testimony that there were allegedly no doctors in Pittsburgh who would do the type of cervical spine fusion surgery that the Florida doctor performed on the plaintiff in Florida. The Florida doctor also testified that he charged $120,000 for performing the surgery. An additional $28,000 was charged by the surgical center. As such, the total expenses for the treatment performed in Florida was $148,000.
In his decision, Hertzberg noted that his review of the evidence led him to conclude that, at least $148,000 of the $150,000 award of past medical expenses appeared to be related to the treatment provided by the Florida doctor in Florida.
The judge agreed with the plaintiff’s argument that, because the Florida doctor was not a Pennsylvania licensed provider, the expenses related to the treatment provided by that out-of-state doctor was not subject to reduction under Act 6 of the Motor Vehicle Financial Responsibility Law.
Hertzberg reasoned that the express language of “cost containment” provision in the MVFRL, 75 Pa.C.S.A. Section 1797(a), which is applicable to medical expenses in a motor vehicle accident case, “twice references medical bill amounts ‘applicable in this commonwealth under the Medicare program.’” Hertzberg noted that this language signaled to him that the statute’s application was limited to only apply to Pennsylvania licensed providers.
In so ruling, Hertzberg also reviewed a regulation regarding the act that was issued by the insurance department. Those regulations, found at 31 Pa. Code Section 69.11 provide, in pertinent part, that the cost containment or payment limitation provisions apply to care rendered by Pennsylvania licensed providers. As such, Hertzberg used this additional analysis to find that Act 6 reductions did not apply to the care rendered by the doctor at issue in this case where the doctor at issue was not a Pennsylvania licensed provider, where the treatment did not take place in Pennsylvania, and where the treatment rendered was not available in Pennsylvania.
Based on the above limited case law, it appears that an out-of-state plaintiff injured in a Pennsylvania accident but treated by out-of-state doctors is not subject to Pennsylvania’s prohibition against the recovery of past medical expenses in a motor vehicle accident lawsuit. However, where the plaintiff is a Pennsylvania resident, at least one trial judge has ruled that Pennsylvania law applies as does the prohibition.
On the issue of whether medical expenses charged by an out-of-state doctor for out-of-state treatment must be reduced under Pennsylvania’s Act 6 provisions, at least one trial court judge has ruled that such expenses do not have to be reduced.
Until appellate guidance is provided it appears that the trial court judges and the bar will have to continue to find their way by reviewing the above cases as a starting point in the continuing debate and analysis of these types of issues.
Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@cumminslaw.net.
Reprinted with permission from the July 26, 2024 edition of the Pennsylvania Law Weekly (c) 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.