News & Events

On April 28, 2022, the Florida Supreme Court issued its opinion in Dial v. Calusa Palms Master Assoc., Inc., in which the Court put to rest, once and for all, the Plaintiffs’ bar’s argument that the Court’s prior opinion in Joerg v. State Farm Mutual Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015) had no application to the question of whether the Plaintiff may introduce the gross amount of his/her past medical bills into evidence. In Joerg, the Supreme Court held that the defense was not entitled to introduce evidence that the Plaintiff would be receiving Medicare or other benefits in the future and therefore, the Plaintiff is entitled to introduce evidence of anticipated future medical expenses without reduction for anticipated future Medicare of other benefits. The Plaintiffs’ bar has been arguing for years that Joerg impliedly overruled the substantial District Court of Appeal precedent holding that a Plaintiff may only introduce into evidence the amount of his/her past medical expenses to the extent that those expenses had been paid by Medicare and not the gross amount of the bills before Medicare reduced them.

While the Supreme Court’s opinion is significant in that it put to rest an argument made by the Plaintiffs’ bar as to why the trial court’s should not be bound by the line of cases throughout the state holding that only then reduced amount of the past medical expenses may be introduced, if paid by Medicare, the opinion does not otherwise change the law on this subject since all of the District Courts throughout the State have been aligned on the issue. However, it should be noted that in his concurring opinion, Justice Polston went further and addressed the issue of whether there is any valid reason why Medicare should be treated differently than private insurance. In Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084 (Fla. 1^st DCA 2010), the First District Court of Appeal held that the Plaintiff would be permitted to introduce the gross amount of her medical bills into evidence where those bills were paid by private insurance, as opposed to Medicare. Judge Polston took issue with the distinction between private insurance and Medicare, noting that in Dial, the Plaintiff had private insurance for a portion of her medical bills and then became eligible for Medicare which paid the remainder of her bills. She was therefore entitled to introduce evidence of the gross amount of the bills paid at a reduced rate by her private insurance, but only entitled to introduce the net amount of those bills paid by Medicare, an anomaly that Judge Polston found nonsensical. As a result, Judge Polston suggested that regardless of whether the defense is entitled to a post-trial set-off of the amount in excess of what private insurance paid in full settlement of the medical bills, from an evidentiary standpoint, there should be no distinction made with respect to how medical bills have been satisfied and the Plaintiff should only be permitted to introduce into evidence the true amount of his or her damages, in which case there would be no need for a post-trial set-off.

While Judge Polston’s concurring opinion is not binding precedent, it does provide some support for the defense to pursue the argument that where the Plaintiff’s bills were paid by private insurance, only the amount paid by insurance should be admissible into evidence as the true amount of the Plaintiff’s damages for past medical expenses. While Harrell is currently the law and is binding on all trial courts throughout the State, if another District Court of Appeal agrees with Judge Polston, then there will be precedent in favor of the defense and ultimately, the Supreme Court would have jurisdiction to resolve this issue as a conflict between District Courts of Appeal. Those clients with pending cases in which the Plaintiff’s past bills have been paid by private insurance should discuss this issue with trial counsel to see how best to preserve the issue for potential future appeal.