OPINION AND ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE
The plaintiffs have filed a complaint alleging that the minor plaintiff, Chelsey Amlotte, suffered damages as a result of medical malpractice committed by doctors at the Alcona Health Center in Lincoln, Michigan. That facility is a federally supported medical clinic, and its covered physicians are deemed employees of the Public Health Service. See 42 U.S.C. § 233(g). The plaintiffs’ claim, therefore, has been filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., which is their exclusive remedy against the clinic and its employees. See 42 U.S.C. § 233(a). Under the FTCA, the United States is liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. A dispute has arisen between the parties as to an element of damages for which the United States may be liable. Specifically, the parties disagree on whether damages for the cost of Chelsey Amlotte’s future medical care may be reduced by the amount that may be paid by the Medicare program now in place to cover ailments of the type suffered by the minor plaintiff. The plaintiffs seek a resolution of this question through their motion styled as a motion in limine, in which they ask the Court to prevent the United States from offering at trial any evidence of future Medicare payments that could be set off against damages for future medical expenses.
Based on the analysis set forth in detail below, the Court finds that Michigan has altered the traditional common-law rule that prohibited setting off against damage
I.
Chelsey Amlotte’s parents took her to the Alcona Health Center for treatment of her ulcerative colitis. Some time after September 1994, Chelsey was administered the drug Asacol, which can and apparently did cause severe kidney damage to Chelsey. As a result, Chelsey Amlotte developed chronic interstitial nephritis with end stage renal disease (ESRD). The plaintiffs attribute Chelsey’s ESRD to the negligence of the medical personnel at the Alcona Health Center due to their failure to properly administer Asacol and monitor their patient to detect and promptly treat the harmful side-effects of the drug. From February to October 2000, Chelsey underwent renal dialysis, and received a kidney transplant at the end of that course. The plaintiffs allege that the medical evidence will show that Chelsey likely will require at least one more transplant at an undetermined time in the future, preceded by episodes of renal failure that will require treatment by dialysis for certain periods throughout her life.
Initially, Chelsey’s medical expenses were covered by private insurance available through her parents’ employment. After a 30-month period during which the private coverage was coordinated with Medicare, which apparently ended as of August 2002, the Medicare Program became Chelsey Amlotte’s primary medical payor for treatment of her ESRD. At present, therefore, although the Medicare benefits paid on Chelsey’s behalf have been minimal, it is expected that Medicare will cover most of Chelsey’s future medical expenses, including the costs of future transplants, anti-rejection medications, and dialysis.
The dispute over whether these future Medicare benefits may be set off against the cost of future medical care arose during pretrial settlement negotiations, in which the Court did not participate. The parties seek a resolution of the issue to help guide future discussions and to prepare to meet the evidence at trial.
II.
The provision of the FTCA stating that the government “shall be liable [for tort claims] ... in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, has been held to mean that liability of the federal government is determined by the law of the State in which the incident in question occurred.
Young v. United States,
A.
Before the state legislature acted in 1986, Michigan applied the traditional common-law rule with respect to damages that had been paid to a tort victim from a collateral source. That is, an injured party could recover full damages from the responsible tortfeasor without any reduction based upon benefits the injured party received from a collateral source, such as medical insurance, or worker’s compensation, or disability insurance. The availability of these payment sources had no impact upon the tortfeasor’s obligation to compensate the injured party for these losses.
See, e.g., Blacha v. Gagnon,
The so-called collateral source rule was abrogated to some degree by the enactment of legislation in 1986 that prescribed a methodology for accounting for payments that a tort victim received from collateral sources, and setting off some of those payments against damages awarded against the tortfeasor. “Collateral source” is defined in Mich. Comp. Laws § 600.6303, which states as follows:
(1) In a personal injury action in which the plaintiff seeks to recover for the expense of medical care, rehabilitation services, loss of earnings, loss of earning capacity, or other economic loss, evidence to establish that the expense or loss was paid or is payable, in whole or in part, by a collateral source shall be admissible to the court in which the action was brought after a verdict for the plaintiff and before a judgment is entered on the verdict....
(2) The court shall determine the amount of the plaintiffs expense or loss which has been paid or is payable by a collateral source. Except for premiums on insurance which is required by law, that amount shall then be reduced by a sum equal to the premiums, or that portion of the premiums paid for the particular benefit by the plaintiff or the plaintiffs family or incurred by the plaintiffs employer on behalf of the plaintiff in securing the benefits received or receivable from the collateral source....
(4) As used in this section, “collateral source” means benefits received or receivable from an insurance policy; benefits payable pursuant to a contract with a health care corporation, dental care corporation, or health maintenance organization; employee benefits; social security benefits; worker’s compensation benefits; or medicare benefits. Collateral source does not include life insurance benefits or benefits paid by a person, partnership, association, corporation, or other legal entity entitled by law to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages. Collateral source does not include benefits paid or payable by aperson, partnership, association, corporation, or other legal entity entitled by contract to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages, if the contractual lien has been exercised pursuant to subsection (3).
Mich. Comp. Laws § 600.6303. Another statute requires the fact finder to make specific and separate damage allocations for medical and health care costs, loss of wages and earning capacity, other economic damages, and non-economic damages, both past and future in each category. See Mich. Comp. Laws § 600.6305. Yet another statute then instructs the trial court as to the manner of computing the judgment amount in light of the verdict award and the evidence of collateral source payments:
After a verdict rendered by a trier of fact in favor of a plaintiff, an order of judgment shall be entered by the court. Subject to section 2959, the order of judgment shall be entered against each defendant, including a third-party defendant, in the following order and in the following judgment amounts:
(a) All past economic damages, less collateral source payments as provided for in section 6303.
(b) All past noneconomic damages.
(c) All future economic damages, less medical and other health care costs, and less collateral source payments determined to be collectible under section 6303(5) reduced to gross present cash value.
(d) All future medical and other health care costs reduced to gross present cash value.
(e) All future noneconomic damages reduced to gross present cash value.
(f)All taxable and allowable costs, including interest as permitted by section
6013 or 6455 on the judgment amounts. Mich. Comp. Laws § 600.6306(1).
The plaintiffs point out that the statutory blueprint directs that economic damages must be offset by the collateral source benefits referenced by Section 6303, but it has no provision for offsetting future medical and health care costs; it merely provides that those future expenses be reduced to gross present value.
See
Mich. Comp. Laws § 600.6306(d). The plaintiff argues, therefore that in Michigan, economic, medical damages are not subject to any collateral source rule. Although not addressed by the Michigan courts in a published decision, the Michigan Court of Appeals has affirmed this reading of the statute in an unpublished decision.
See Bender v. Farmington Ridge L.P.,
No. 208545,
The defendant does not dispute the plaintiffs’ interpretation of Michigan’s statutory collateral source rule, and the Court agrees with the plaintiffs’ reading as well.
Compare
Mich. Comp. Laws § 600.6306(l)(a) (calculating “[a]ll past economic damages, less collateral source payments as provided for in section 6303.”)
and
Mich. Comp. Laws § 600.6306(l)(c) (computing “[a]ll future economic damages, less medical and other health care costs, and less collateral source payments determined to be collectible under section 6303(5) reduced to gross present cash value.”)
with
Mich. Comp. Laws § 600.6306(l)(b) (awarding “[a]ll past non-economic damages.”)
and
Mich. Comp. Laws § 600.6306(l)(d) (allowing
“[a]ll future medical and other health care costs reduced to gross present cash
value” with
B.
But the United States contends that the Court must look further to resolve the issue. Although the statute defines “collateral source” to include Medicare benefits, see Mich. Comp. Laws § 600.6303(4), it does not necessarily take into consideration cases in which the United States is a defendant — as well as the payer of those benefits' — nor would it since federal courts have exclusive jurisdiction over injury claims against the United States for money damages. See 28 U.S.C. § 1346(b)(1). The government argues, therefore, that Medicare payments are not “collateral” at all, because they come directly from putative tortfeasor.
Indeed, at common law, payment for medical costs prior to recovery of a judgment could arise from two important sources: the defendant himself, or someone else. These sources of payment are referred to as “direct” or “collateral,” respectively. See Dan B. Dobbs, Law of Remedies § 8.6(2), at 488 (1993). As Dobbs explains:
The general rule is that the defendant does get such a credit when the benefits are direct benefits but that the defendant does not get such a credit when the benefits are collateral benefits.
Suppose the defendant negligently injures the plaintiff. The defendant accepts some of the blame and pays the plaintiffs medical expenses. That is a direct benefit for which the defendant is entitled to credit. When the plaintiffs employer pays the plaintiffs wages in spite of injury, however, that benefit is collateral. As to that benefit the defendant is entitled to no credit; he remains liable for the wage loss claim although in fact the plaintiff has continued to receive wages from his employer.
Id. § 3.8, at 372.
Section 6303 makes no reference to direct payments. The Court concludes that the adjustments fashioned by this section apply only to collateral benefits, not those paid directly by the defendant. In that context, the direction to award “[a]ll future medical and other health care costs reduced to gross present cash value” contained in Section 6306(d) is ambiguous, since future medical costs already furnished by the defendant could be considered a direct benefit that could be set off under common law.
Michigan courts have recognized, admittedly infrequently, that defendants could be credited for direct benefits conferred upon the plaintiff following the commission of the tort.
See, e.g., Troppi v. Scarf,
The Court sees no indication that the Michigan legislature has abrogated the common-law distinction between direct and collateral benefits. The statutory scheme in question is designed to limit the traditional collateral source rule. Benefits conferred directly by defendant themselves upon the plaintiff simply were not addressed. It would be quite remarkable for what the Michigan Supreme Court has itself characterized as a “tort reform” statute,
Nation v. W.D.E. Elec. Co.,
The Court concludes from “all relevant data” that Michigan has retained the distinction between direct and collateral benefits after the enactment of Mich. Comp. Laws §§ 600.6303-6306. Although there is no definitive pronouncement from the Michigan Supreme Court on this subject, the Court discerns from the tepid endorsement of the concept by the Michigan Court of Appeals for the concept, combined with the resounding weight of the torts restatement and the leading commentator on remedies, that the Michigan Supreme Court would exclude direct benefits from the operation of Section 6306(d) and require them to be set off from damages awarded for future medical costs, or at least preclude them from initially being included in the calculation of such “costs” in a damage award.
C.
The question remains, however, whether the Medicare benefits on which the government proposes to offer evidence in this case should be characterized as “direct” or “collateral” benefits. The government observes, correctly, that there is little state law, in Michigan or elsewhere, to guide that inquiry. Accordingly, while courts have held that state law is the “starting point for an analysis for the applicability of the collateral source rule” in FTCA actions, they typically resort to federal case law to resolve the issue.
Burke v. United States,
Federal courts that have opined on the question do not include the Sixth Circuit. The cases from elsewhere, however, tend to draw distinctions by determining whether the federal program in question operates more like a form of insurance — a paradigmatic collateral source recognized as such by the Michigan collateral source legislation,
see
Mich. Comp. Laws § 600.6303 — or rather a gratuitous benefit conferred by the United States at no cost to the citizen plaintiff. One test applied focuses on whether the injured party had contributed to the fund from which he or she is now receiving benefits.
Berg v. United States,
The Court finds that the leading ease on the subject is
Overton v. United States,
The Eighth Circuit concluded that for the
Overton
plaintiff, Part A operated more in the sense of a direct benefit. The Court took note of the two different approaches among the Circuits in classifying government benefits for collateral source purposes. One distinguished between benefits conferred from “unfunded general revenues” and those stemming from “a special fund supplied in part by the beneficiary or a relative upon whom the beneficiary is dependent.”
Smith v. United States,
In our view the first distinction is unsound, although some courts have purported to rely on it, because it makes recovery depend on bookkeeping conventions and because it ignores the substantial governmental involvement in the creation and administration of social security programs. It is an artificial distinction that invokes no notion of “substantial justice” to support a possible double recovery by plaintiff. It is the second distinction that best explains Smith and Hayashi Absent some statute to the contrary, plaintiffs receiving governmental benefits should receive their FTCA awards free of any set-off for those benefits if there is a showing or a presumption that they or one on whom they were dependent paid a special levy or fee to make the benefits possible. Absent a special payment by plaintiff, the government should not be forced to compensate plaintiff twice, once with money funneled through a special compensation scheme, and again with expenditures from general revenues.
Ibid.
Because the plaintiff was over 65 years of age when the Medicare program was created, and thus had never contributed to it,
Overton
concluded that past medical expenses paid by Part A of Medicare were appropriate set off against the plaintiffs damage award.
See also Berg v. United States,
The Third Circuit’s decision in
Titchnell v. United States,
There has been a notable reluctance on the part of some courts to offsetting future medical costs. In
Molzof v. United States,
This Court adopts the rationale set forth by the court in
Overton
and
Titchnell.
The determination of whether a payment under a government program should be characterized as “direct” or “collateral” turns on the “showing or a presumption that the[ tort claimants] or one on whom they were dependent paid a special levy or fee to make the benefits possible.”
Over-ton,
The defendant here claims that Chelsey Amlotte will receive benefits under Part A of Medicare, which covers hospital costs, such as transplant costs, solely as a result of her status as a person suffering from ESRD. The government acknowledges that Part B benefits, which include out-patient services, such as dialysis, physician’s fees, and medications, is optional and requires payment of a premium fee, currently $58.70 per month.
The Court has little trouble concluding that benefits that will be paid under Part B are analogous to insurance policy proceeds, and that damage amounts for future medical expenses that are covered under Medicare Part B for outpatient treatment and doctor’s visits are not subject to setoff. The parties agree that Part B coverage is conferred only upon payment of a monthly premium. Chelsey Amlotte becomes entitled to Part B coverage only to the extent that her parents pay this premium. Under Section 6306, then, these future medical expenses may not be offset from the plaintiffs future medical expenses.
See
Mich. Comp. Laws § 600.6306(l)(d) (awarding future medical costs discounted to present value, but not directing a deduction for collateral source payments);
Bender,
Part A is somewhat more complicated. Normally, since Part A is funded at least indirectly by Social Security payroll assessments, the plaintiffs receipt of hospital care under Part A is easily identified as a form of insurance.
See Titchnell,
An individual is entitled to hospital insurance benefits if—
(1) He or she is medically determined to have ESRD;
(2) He or she is:
(i) Fully or currently insured under the social security program (title II of the Act) or would be fully or currently insured if his or her employment (after 1936) as defined under the Railroad Retirement Act were considered “employment” under the Social Security Act;
(ii) Entitled to monthly social security or railroad retirement benefits; or
(iii) The spouse or dependent child of a person who meets the requirements of paragraph (c)(2)(i) or (c)(2)(ii) of this section;
(3) He or she has filed an application for Medicare Part A; and
(4) He or she has satisfied the waiting period explained in paragraph (e) of this section.
42 C.F.R. § 406.13(c) (emphasis added).
The language quoted above does not allow a person suffering from ESRD to receive benefits solely because of their status as a sufferer of that disease. Rather, other important conditions must be met, including acquiring “insured status” under Title II of the Social Security Act. “Insured status” under Title II requires that a person actually work and pay into the system through payroll deductions for at least 20 quarters out of a 40-quarter period.
See
42 U.S.C. § 423(c)(1). Persons whose work history does not continue within that framework lose insured status.
See Higgs v. Bowen,
If Chelsey Amlotte were to regress into ESRD with her replacement kidney in the future, the parties do not dispute that she would qualify for Medicare Part A hospitalization benefits if private insurance was otherwise unavailable to cover her treatment. Regardless of whether Chelsey is “[f]ully or currently insured under the social security program,” 42 C.F.R. 406.13(c)(2)(i), the government does not deny the plaintiffs’ contention that Chel-sey’s parents, by virtue of their payroll contributions to the social security program, are so insured, and that Chelsey is their “dependent child” under subsection (c)(2)(iii) of the regulation. Under the logic of Overton, one who contributes to Medicare Part A is entitled to its benefits, as any beneficiary under an insurance policy-
The Court finds, therefore, that future payments under Medicare Part A and Part B operate more like an insurance policy obtained through the contribution of the tortfeasor or a person on whom the tort-feasor is dependent, rather than like a gratuitous payment. Those payments should, therefore, be characterized as coming from a collateral, rather than a direct, source.
III.
The Court finds that the Medicare payments for future medical expenses should be treated as a collateral source. Since payments from a collateral source may not be set off against future medical expenses under Michigan law, evidence of such payments is irrelevant. Only relevant evidence is admissible at trials before the courts of the United States. See Fed.R.Evid. 402.
Accordingly, it is ORDERED that the plaintiffs’ motion in limine, [dkt # 54] is GRANTED.