In personal injury cases, plaintiffs are entitled to compensation for their past and future medical expenses required to treat their injuries, and for lost wages. These claims, whose dollar amounts can be reasonably calculated, are known as “boardable damages.”
Since the introduction of the Affordable Care Act (also known as Obamacare), plaintiffs’ attorneys have to scrutinize health insurance policies to make sure they are not group plans. This is because plans offered by the ACA are individual plans, which are not subject to subrogation. Subrogation is an insurance company’s ability to recoup medical payments they’ve made on behalf of their insured, who in this case, is the plaintiff. Before the ACA, most plans offered by companies such as Aetna or Cigna were group plans, and were open to subrogation.
It is important that attorneys stay aware of their clients’ plans because subrogation vendors continue to attempt to recoup money which insurance companies spend, regardless of whether they are entitled to it. If you and/or your lawyer are unaware about the details of your policy, then you might mistakenly give vendors money which they have no right to.
Additionally, defense attorneys have been claiming that future medical expenses should not be boardable due to the ACA. Since the ACA guarantees future medical coverage, and because plans obtained through the ACA are not subject to subrogation, then plaintiffs will never have to pay for or repay insurance companies for any future medical bills. Because the plaintiff will not have to pay medical providers or the insurance companies, then the bills for treatment are not considered as compensable damages. Whether these defense arguments hold up in Pennsylvania courts is yet to be seen.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.