You see them posted everywhere...I made my client $1 million...I made my client $2 million.  You have to kind of chuckle at these badges of honor.  I am also to blame.  My website has them too.  Gross settlement numbers lead people down the path to think that the gross settlement is what matters when nothing could be further from the truth. 

What really matters is what the client KEEPS. After all, when the attorney is gone, and the medical expenses have been paid, the client is left in solitude looking at a bank statement with some digits that represent all the pain, suffering and anxiety related to their "EVENT".  Money loses its luster when you think about it that way.  More important than money...the injured person is left looking in the mirror.

The mirror often reflects a person who lost days, weeks, or months in a hospital bed.  The mirror reflects a person who could not physically manage the simple things that we take for granted:  going for a walk, a bike ride, pushing their child on a swing set, playing catch with their dog, doing the dishes, the laundry, and yes, even certain other unmentionables.

The injured do not care about cash.  They seek a restoration of dignity and justice.  That irresponsible bastard caused a loss of freedom and vitality.  The insurance company says that these things aren't worth much. That only infuriates the injured.  Where is the justice?  The clock can not be turned back.  The pain can not be wiped away.  The injured persons only recourse is seeking cash from the irresponsible.   An insurance company promised to pay for injuries caused by that irresponsible bastard.  Now they don't want to do what they promised.  Insult to injury.  Money will never be enough nor can it be.  The battle begins.

I fight these battles for cash realizing that the numbers that I acquire is not what the client KEEPS.  Five years after the case is closed, my client will look at himself in the mirror and realize that the irresponsible was held accountable, the money hungry insurance company was forced to make good on their promises, and that their attorney was a guy that they would gladly stand next to again should another battle ever arise.

Today the California Supreme Court issued a disappointing ruling for injury accident victims.   In Howell v. Hamilton Meats & Provisions, Case No S179115, the Court declined the opportunity to uphold the collateral source rule. 

The collateral source rule is an evidentiary rule that prohibits the admission of evidence that a victim's damages were or will be compensated from some source other than the damages awarded against the Defendant.  If the injured person was smart enough to buy insurance coverage then the tortfeasor should not be able to introduce evidence that the victim incurred no out of pocket expenses.  The rules assures that the tortfeasor is fully responsible for his own conduct.  To disallow use of the collateral source rule permits the tortfeasor to acquire a benefit at the expense of the injured person.

In Howell, the plaintiff had health insurance, and sustained serious injuries in an automobile accident caused by a driver for defendant Hamilton Meats.  Howell had Pacificare for health insurance, and received treatment at Scripps Memorial Hospital in Encinitas.  Scripps was a preferred provider pursuant to its contract with Pacificare.  Scripps accepted $59,691.73 on a $189,978.63 medical bill.  Scripps did not have the right to balance bill Howell and Howell had no obligation to pay Scripps the difference between the amount billed and the amount accepted.

Howell wanted to post the entire $189,978.63 at time of trial and was allowed to do so.  The trial court reduced the award to $59,691.73 after post trial motion.  An appeal ensued and the appellate court ruled in favor of the plaintiff stating that the collateral source rule protected the injured person.  The defendant petitioned the California Supreme Court and was granted review. 

The Supreme Court had to decide whether, in this case, the tortfeasor should receive the benefit of the victims insurance or whether the victim should recover money for damages that she never "incurred".  The California Supreme Court took the position that serves insurance companies and tortfeasors.  It stated that the plaintiff can not use the collateral source rule to receive a "double recovery" or a "windfall".  The Court failed to recognize that the victim paid for that windfall when she bought health insurance with her own hard work and money.

Health care providers should care about this ruling because it reduce the amount of compensation an injured person can receive from an accident.  At a time when health care is so expensive, the people causing accidents are allowed to pay less than their fair share. 

Injury victims would be better off not having health insurance coverage in this scenario.  They could post the entire $189,978 and receive it from the tortfeasors large commercial liability policy.  

Work around?  Attorneys in these cases will now speak with the hospital administrators early on and advise them never to "accept" the health insurance and allow the full amount billed to be claimed in the personal injury lawsuit.  This transfers the responsibility to the tortfeasor and away from the health insurer.  It allows the hospital to collect more money than they would have received under the health insurance contract.  In order for this to work, the hospital will need to know that there is a commercial liability policy with sufficient limits and a case that has clear liability.