District of Columbia v. Jackson

Dyas qualifi- appellants the court set the convictions of Accordingly, forth three Tucker are Taylor for the admissibility expert cations testi- mony: Affirmed. subject be so dis- matter “must FERREN, J., only.

tinctively science, concurs in the result profes- related to some sion, business or occupation as to be be-

yond the ken average layman

... “the witness have suffi- must skill,

cient knowledge experience in

that field or it calling appear as to make opinion

that his probably or inference will

aid trier in his search truth ... (3) expert testimony is inadmissible COLUMBIA, Appellant, OF DISTRICT “the state of pertinent art or scientif- knowledge

ic does permit not reasona- opinion ble be asserted even an Rawlings JACKSON, Doris L. et 376 A.2d expert.” quoting al., from Appellees. McCormick, 1972) ed. (2d Evidence 13§ No. 80-996. (emphasis original). in Appeals. District of Columbia Court The issue Taylor raised appellant Argued Feb. indistinguishable meaningful in any re spect from the issue in Dyas.9 addressed Decided Oct. subject matter of the proffered testi related

mony to the capacity of witnesses to

observe, remember, recognize and occur within

rences experience common

understanding of every juror. All the trial subjected

witnesses were to extensive cross- regarding

examination ability their to ob appellants

serve subsequent proce by which

dures were made. identifications

Appellant Taylor’s forcefully counsel ar in her

gued summation that the witnesses wrong appellant,

were when they identified

focusing at length on the limitations on observe, capacity

each witness’ and the

possible suggestivity identification

procedures employed. reason There is no jurors incapable

believe that were

properly evaluating by using the evidence sense, experience

their and common lieu

of expert elucidation. The trial court cor ruled that the

rectly subject matter was not

beyond the ken of the jury. stress, Specifically, expert good proffered observation tes- an as one not under witness’ opin- timony explained “three-step person publicly an would have that once a announces despite process” psychologists “agree” be motivated to maintain it is involved ion he will evidence, eyewitness subsequent, contrary identification. would have the existence He involving supports in crimes testified “scientific literature” and that identifications reliability. weapons reduced conclusion one under stress does make

FERREN, Associate Judge: A jury found the District of Columbia estate, widow, liable daughter wrongful Lawrence Calvin Jackson in death arrest, alleging survival actions false assault, by and negligence metropolitan po- lice officers. is not an Liability issue on appeal. The questions pertain damages, $120,740 which three upon general totaled verdicts: Because District’s Medic- $75,336 aid program paid pay has or will for bills of deceased Howard University Hospital, is the District entitled against judgment to set off the total jury amount awarded for medical ex- so, penses? (2) appropriate can the credit be subtracting calculated by Howard University medical bills from the total verdicts, general amount of the or must the special finding first make a as to medi- cal damages? We conclude the Dis- setoff, trict is entitled to but findings as damages- may to medical —which hospital represented be proper bills—are necessary before Accordingly, amount can determined. we judgment must and remand reverse damages. for a new trial on the issue I.

The parties agreed following on the statement of facts: of Fact Agreed Statement appeal by This is an the District of Co- lumbia from an order of the trial court (Thompson, J.) denying post- the District’s judg- for motion a credit on or, alternative, ment to alter or Schwab, Edward E. Counsel, Asst. Corp. judgment. ground amend the for this D.C., Washington, with whom Judith W. $120,- motion judgment totalling is that the Rogers, Corp. Counsel, and Charles L. Reis- wrongful 740 in favor of in this chel, appellees Counsel, Deputy Corp. Washington, action, $75,336 death included D.C., and survival brief, were on the appellant. damages appellees which their and/or D.C., Samuel M. Shapiro, Washington, decedent, previously compensated had been with Meiselman, whom Rockville, Irwin G. Program. the District’s Md., brief, was on the appellees. the collateral The District asserted KELLY, and, FERREN, Before applicable MACK and source rule was not addi- Judges. Associate tionally, that were not entitled to appellees recovery. a double urged partial It with Program, for those rea- Columbia Medicaid sons that given it should be a credit reimbursement from the United States. the judgment for amounts Med- entered into a During trial the icaid Program. effect, stipulation to that written This action was filed by Lawrence Calvin court and entered approved by the trial Jackson, 2,1980, who died on January while provides: record. The stipulation into the the action pending. was Mr. al- Jackson to, stipulated agreed by is and It and leged complaint that, September in his on the between the Plaintiffs and Defend- 20,1977, falsely he was by arrested officers ant, all of Calvin Jackson’s Lawrence of the Metropolitan Police Department and University Hospital Howard medical bills arresting the officers assaulted him. paid have been or will be D.C. He complaints included in his for counts Medicaid. arrest, (2) assault, (3) false train- negligent stipulated agreed It is further and ing, and and libel slander. will the District of Columbia submit Following death, widow, Mr. Jackson’s his by be the Federal and reimbursed Jackson, Doris Rawlings T. was named ad- a of the costs of percentage Government ministratrix of estate. a sup- the filed She the D.C. Medicaid payments. plemental complaint on behalf of the estate instructing pursuant the jury, In to writ- in the form of survival and a action proposed by and appellees, ten instructions wrongful death action on her own behalf object, the the to which District did and on behalf their of minor daughter. She bills proved by Court allocated medical reiterated the claims in original com- between the appellees wrong- survival and plaint and Mr. additionally claimed that ful actions. The medical bills allocat- death Jackson’s death resulted from and assault action wrongful ed to the death were those negligence on the of the District. The Appellees’ for Mr. Jackson’s last illness. Columbia, District defendant, of the only “C”, given Instruction which was proposed was sued under a respondeat theo- superior court, trial each by the and which member ry District, answer, of liability. The in its form jury during of the had in written any liability denied appellees. deliberations, provided: Trial to a jury May commenced on Plaintiffs, you shall find for the you 1980. May On jury returned take into consideration in arriving shall its appellees, verdict for finding the District your pecuniary verdict loss suf- of arrest, Columbia on liable the false as- deceased, by fered Lawrence C. Jack- sault and negligence claims. The count son, injuries aas result of the sustained libel and voluntarily slander had been dis- case the value in this which includes by missed appellees. The the ver- form of medical necessary hospital reasonable and $78,240 dicts was in the survival action You shall make an award services. also $34,000 in favor Doris Jackson Rawlings for the compensation of reasonable dece- $8,500 Jackson, in favor of LaVette disability by which was caused dent’s minor daughter Doris Jackson Rawlings Defendant, District of actions Co- Jackson, wrongful and Lawrence on C. lumbia. Judgment death claims. Dis- trict of assessing damages Columbia entered on these ver- to which the entitled, dicts. of Lawrence Jackson estate may any take into you consideration Mr. Jackson received medical extensive believe following you which from the care, prior death, to his which included a to have from the acts of evidence resulted kidney transplant and dialysis treatment. Defendant, District Columbia. Appellees into hospital introduced evidence $75,336 bills which Any bodily injury by totalled at How- 1. sustained care Hospital. Jackson, ard University These bills have Lawrence C. and the extent and thereof; paid been be by will the District of duration Any effect of any injury upon such such payments; information [Medicaid] his health according to its degree and jury would tend to confuse the in deter- duration; probable mining just, compensatory amount. A 3. Any physical pain and suffering set-off, proper, would be for the him; anguish mental suffered determine as a matter of law and court to Any inconvenience caused jury. jury’s not a question for treatment; injuries and sole function should be to determine a Any doctor, hospital, nursing fair, Thereafter, just award. full and incurred to the extent adjustment. subject that award $59,720.00. request no At trial the District made Appellees’ proposed Instruction “D” was verdict reflect the dollar com- jury form also adopted by the trial given court and made their final verdict. ponents up written form to each member of the trial, the court denied the Dis- During during consideration deliberations. It the medical bills trict’s motion to exclude provided in relevant that: evidence, from and it ruled that no com- alleged loss, That monetary plus funer- concerning payments ment Medicaid could $1,969.50 al expenses of and medical bills Following the jury. be made in front of of decedent’s last illness to the extent of entry judgment, the District filed its $15,616.60 only damages are the that you or, judgment the motion to alter or amend plaintiffs award under the Wrongful judg- the alternatively, against for a credit Act, Death you if find the District of the paid ment in the amount under Medic- Columbia under that liable statute. aid The court denied the motion program. The District of Columbia contended This stating grounds. appeal without its throughout litigation appellees this that followed. were not entitled to recover for medical paid bills under Program. Medicaid urged The District in its Pretrial Statement II. that, and Supplemental Pretrial Statement are entitled Claiming A. that as a or mitigation set-off other matter in recovery to double for medical damages, medical bills paid under Med- i.e., judgment from the both deceased — icaid were not recoverable by ap- against ap- the District and from pellees paid and that bills so should not be Medicaid— pellees invoke the common law collateral trial, admitted into evidence.1 Prior jurisdiction: in source rule this “[A]n law, District filed a memorandum of assert- recover in full jured person may usually

ing payments that Medicaid are not within anything regardless a wrongdoer from ap- collateral source doctrine and that pellees were not entitled to a double recov- he a ‘collateral source’ uncon may get from ery medical care. wrongdoer.” Hudson v. nected with the 217 Lazarus, F.2d U.S.App.D.C. 95 Appellees also filed a memorandum of accord, omitted); (1954) (footnote law in which they contended that Medicaid Co., D.C.App., 353 A.2d Jacobs v. H. L. Rust payments are from a collateral source. (1976). for the rule is The rationale They also that the of a question contended just that the windfall that “it is more set-off, any, for Medicaid should be set- court, trial, injured should inure to the benefit of following stating: tled to the tort that it should accrue party than Columbia, Reid v. District of [Under Turner, F.Supp. feasor.” Adams v. (D.C.App.1978) 391 A.2d 776 and 399 A.2d Hudson, U.S.App. (D.D.C.1965); see in- (1978)], should not be F.2d at 346. formed of the fact amount of D.C. at Statement, being [Agreed Program Medicare. In the Pretrial the Medicaid as continued] Statement, erroneously the District referred to assume, against solely argu- The District for the sake argues double recov- We ment, that, as between District/tort- here, ery contending that the trial court victim, the feasor Medicaid statute grant erred in refusing to the District a the com- have not altered regulations credit for the medical We con- mon collateral source rule.3 law bills or to Specif- Medicaid. that, rule, common law clude ically, claims, first, the District in the source this Medicaid is not a collateral present context provisions of the federal District, accordingly, is case statute, Medicaid 1396a(25) U.S.C. § bills, paid all entitled to credit for medical (1974), regulations, 42 C.F.R. 433.- Medicaid, in the to the extent included (1980),2 136(3) modified common damage award. rule, law collateral source with the result source rule most B. collateral recipients “Medicaid cannot simply commonly applied when source keep portion from a “collateral,” i.e., truly not con benefit tortfeasor which represents previ- amounts A any way nected in with the tortfeasor.4 ously paid by Medicaid.” In the alterna- will be col source of benefits also deemed tive, the District argues that even if federal lateral, the victim will be however —and determinative, law is not under the common judg entitled both the and the benefit law rule payments attributa- are provid when the tortfeasor has ment —even District, ble to the source, not to a collateral benefits, ed so long or contributed those and thus the District should to pay not have benef the victim has contracted for the twice. example, its.5 For when the United States 2. 42 U.S.C. § nett 302, 84 Federal Medical the common law statute sue on which we 42 C.F.R. 122 For a discussion of reasonable measures to ascertain the or where resource been made third agency purposes in found to exist bursement for such assistance to the extent ual, or of such liability services agency administering or must— 2651); (a) (1970) (effect Ga.App. “Third (25) provide (A) v. 311 any disability injury, A State care Haley, on party ^[******] (1974). Horton v. of the medical cost of case where such a § legal liability.... will State or (available and Party” plaintiffs’ 433.136(3) State or local 493, 494-495, third available disease, that is or 132 1396a(a)(25) has such a the individual on whose behalf paragraph treat services are made available for of an plan express collateral source after See Ga.App. 512, on collateral source rule of means Recovery local Brooks, under the such rights also that for medical assistance on or applicant may such agency effect of the Medicaid no any individual, entity (17)(B), behalf of the individ- agency 177 to disability, (1974) Whitaker 325 legal liability legal the State or local be liable opinion plan pay Act, provides S.E.2d plan) arising legal liability So.2d 523, injury, will seek reim- assistance has liability knows that a or provides: for care and will take all rule —an 42 208 —see v. 381, 912, recipient. (B) (C) disease, in Talbot, pay S.E.2d U.S.C. 383- part: 915- as a legal Ben such out is all 5. A the fund from which the at icaid is “collateral which talization rich, ance see (Alaska Cir.1980) (assuming, feasor was not connected with in 231, 241-245, (medical also Milwaukee & Suburban is the benefit and the public 523, did not (La.App.1976) (pension care Reeves Gulf States Util. of state statute (1977) (special SCI 1329, 1182-85 16 White, order to completely 645 substantial, (Miss.1976) (effect tortfeasor Wright tortfeasor’s Corp., 90 Hannah provided this 314 208 S.E.2d premiums); 1336 school victim (tortfeasor paid 173 Conn. v. contribute); 1979) (tortfeasor N.W.2d (1978) expenses paid context, provided be deemed the “source” of a benefit. (Me.1978) v. v. system); Wash.2d did not by charity hospital); need not be 201 N.W.2d gratuitous. education however. Vickaryous, Haskins, governing role in at 311 (en 828, 438, the victim source”). judgment Hartnett Werner in banc) 831 contribute); (medical on collateral source state); Bennett, 447, this “brpnging] (Medicaid, by government). fund to which insurance 612 F.2d Trans. program provided benefit derived must contributed (Minn.1982) Adams, 745, See, (Medicare Co., 598 P.2d context, 378 A.2d even if the benefit v. v. may Hueper v. Good- only care and Lane, Co., 132 585 327 So.2d 671 751-53 e.g., Riveron, government); 373, 238 Thoreson v. where tort- premiums); retain both contributor into Ciminski Ga.App. P.2d 56 Wis.2d program). 393 A.2d 490, Healy to insur- 540, (medical 375 fund to F.Supp. being” victim hospi- Med- 1182, (8th rule 361 502 546 See by at v. v. 872 victim, the tortfeasor and the as a result There is a third situation: when the tort- injury, tortious (e.g., receives feasor an government employ- Social Secur- or

ity or er) Medicare benefits from a fund provided protect against has benefits to which contributed, illness, he or she has the federal injury, disability, or victim payments are bargained paid considered “collateral.”6 in has respect no Similarly, them, when an to a employer is the tort- the tortfeasor is entitled credit feasor and the employee-victim has for those benefits to the extent received payments under plan that can be charac- the same misfortune cover- compensate for terized as a “fringe benefit” judgment. lieu of ed Courts held wages, available, payments are example, “collateral.”7 credits to be with benefits,8 The rationale disability here “is that plaintiff respect to veterans’ deserves compensation additional from a fund to which payments he Medicare contribute,9 receive because he has ‘contracted’ medical care the victim did not it, Administration,10 because it is in the nature of insurance.” the Veterans’ provided by States, Overton v. United 1299, 619 policies F.2d and insurance were not (8th Cir.1980) 1306 (applying law). Missouri fringe employment.11 benefits of 749, (Fla.App. 1978) (same). So.2d 752 Cf. the former Act are not benefits received under States, Bradshaw v. United U.S.App.D.C. employer 143 deductible from 344, 12, 356, 443 759, 12, 349 n. railroad). F.2d 765 n. 771 (1971) (when only percent 8½ to 17 of benefits Moore, benefits, Mitchell v. As Medicare see Disability under District Act came from Brady, 347, (Ala.1981); Powell v. 406 So.2d government, federal remainder came from local 406, 412-414, Colo.App. 496 P.2d 332- government employee contributions, aff’d, (1972), 181 Colo. 508 P.2d government program, local administered feder McIntosh, Hosp. Lady Mercy v. (1973); Our source); Ciminski, government al was not (Ky.1970); Womack v. 461 S.W.2d (tortfeasor’s Wash.2d at 585 P.2d at 1184 Co., (La.App. Travelers Ins. 1972); Ciminski, 258 So.2d taxpayer give status as federal did not him 802-807, 90 Wash.2d direct, pecuniary interest Medicare neces 1182-85; Thoreson, P.2d at 56 Wis.2d at 241- sary “source”). to be considered 245, 201 N.W.2d at 751-53. disagree suggestion We in Steckler v. with the Co., Navigation States, 7. Russo Matson 486 F.2d United (10th 549 F.2d Cir. (9th Cir.1973) (per curiam) (pension 1977) 1018 bene- (applying law) Colorado courts Co., Ry. fits); Hudson Blake v. Delaware & 484 analysis should bifurcate their of a benefit and 204, Cir.1973) (insurance (2d F.2d re- 205-07 allow a credit the for the quired fringe purchased employer, as percentage tortfeasor, to be traceable to the but not benefit, agree- bargaining under collective tracing for the Such remainder. would be an Inc., ment); Haughton Blackships, v. 462 F.2d everyone undue burden on concerned. See 788, Bradshaw, supra; (5th 1972) (same); States, Hall v. Min 790-91 Cir. Smith v. United 587 Co., 92, Ry. F.Supp. nesota T. 1013, 322 95-97 (3d Cir.1978) (applying F.2d 1016 Penn (D.Minn.1971) (same). sylvania law) (rejecting approach). Steckler regard benefits, Security 6.With to Social see Brown, 110, 8. See United States v. 348 U.S. 111 Smith, 1016; United States v. Ha 587 at F.2d n.*, 141, n.*, (1954); 139 75 S.Ct. 145 99 L.Ed. Hayashi, 599, rue (9th 1960) 282 F.2d 604 Cir. 239, Gray, (10th United States v. 244 199 F.2d (applying law); Barnes v. United Hawaii Johnson, law); 1952) (applying Cir. Colorado States, 1376, F.Supp. (W.D.Pa.1981) 516 1389 F.Supp. 510 at 1046. (applying Pennsylvania law); Johnson v. Unit- States, 1039, ed F.Supp. (D.Mont. 510 1046 Overton, 9. See 619 F.2d at 1305-09. 1981) (applying law); see also Jen Montana States, nings 880, v. United States, 291 F.2d 887-88 924, Feeley 10. See v. United 337 F.2d (4th 1961) (applying Maryland law) (Civil Cir. 1964) Pennsylvania (3d (applying 926-28 Cir. benefits); United Service Retirement Act Gray, 199 F.2d at 244. law). But see Price, 448, States v. (4th 288 F.2d 450-51 Cir. Co., 1961) law) (applying Virginia (same); United R.R. See Nelson v. Penn Central 415 Brooks, (4th States v. F.Supp. (N.D.Ohio 1976); Thomas 176 F.2d Cir. 226-27 Co., 1949) (applying law) (National F.Supp. Penn Central North Carolina 25-28 501-02; (W.D.Pa.1974); Wright, benefits). Cf. Eichel v. New Life Insurance 598 P.2d at Co., Co., 253, 254, Rogers York C.R.R. v. North Western Trans. 375 U.S. 59 Ill. 84 S.Ct. 845, 850-51, (1963) (per curiam) 911, 916-917, App.3d 11 L.Ed.2d 307 16 Ill.Dec. Hartnett, (since equivalent (1978); Railroad Retirement Act is 375 N.E.2d 957-58 Security employees, Social Act for railroad So.2d at 750-52. lumbia. The ble plaintiff. being,” dent” of the wrongdoer, the District of Co- Medicaid Act authorize states to establish medical source category. “wholly indepen- Medicaid benefit was not collateral source rule ... ty or Otherwise, the source wholly independent 1965 Amendments to the Social Security This case falls into neither collateral recovery.’ payment contracted for the sum, ^[2] see when Adams, “[a] ” District in rule is Overton, plaintiff may First, question plaintiff may 238 F.Supp. at this itself “brought prospect the source of the 619 F.2d at 1307.12 jurisdiction. of the liable available to the either came invoke the be said to of a ‘dou- ^[1] from a when par- into The award. to a in Feeley, 337 F.Supp. at 1046. Medicaid benefits were aid, that also were included in the damage Hudson, source “unconnected not contract for al source. in benefit.” ton, We ruling every respect, characterized as benefits (i.e., credit for medical 619 F.2d conclude, therefore, “wholly The trial court U.S.App.D.C. F.2d at Overton, 619 the District those 1307), independent “Medicaid is a 926-28; Johnson, benefits, with” bills, paid not derived and the victim did at accordingly F.2d at that because the was not entitled from a of” they gratuitous it, 1305-09; collater District, F.2d from a Medic cannot Over erred at assistance programs so,13 wish to do but the state government must take the III. initiative by submitting a program plan that, Appellees contend whatever federal requirements. conforms to issue, the merits of the collateral source The District submitted Medicaid plan to District should not now receive an automat government federal in 1968. When the ic setoff against general verdicts for the plan approved, qualified District Medicaid, medical bills it since for matching federal funds.14 The federal not clear that the verdicts included the full

government percent pays 50 of the cost of amount We provided agree. services of those bills. As the D.C. Medicaid plan.15 setoff, District, however, party seeking District bears solely re- sponsible for administering program.16 showing burden of amount facts, On these we conclude that the Dis- sought to be is in fact part deducted of the trict was the source Medicaid pay- verdicts. The District could have met this ments. supra. See note 5 either by requesting special burden verdicts (itemizing awarded) types damages recipients

Nor do to, contribute accompanying or a each of bargain for, finding, the fund from which bene- verdicts, fits are paid. general to the medical ex (1974). See U.S.C. 1396b Appellees that, acknowledge penses their brief awarded.17 The should be in- suggested pays percent 12. Some government cases have that a benefit 14. The 50-83 federal government provided from a tortfeasor of is deductible the cost of the medical services judgment plans; government’s general from the if it under state the federal comes from government funds, according exact share is calculated to a but not if it formu- comes from a compares administering “special” la which state’s identify fund. Since these cases per capita average. “special” income with national fund to as one which the victim has 1396d(b); (1980). contributed, Id. 42 433.10 Smith, § § C.F.R. however, see 587 F.2d at 1015-16; Price, 450-52; 288 F.2d at Harue 44,879-80 (1976); Fed.Reg. Fed.Reg. 45 41 Hayashi, 603-04; Johnson, 282 F.2d at 510 79,582 (1980). 1046, F.Supp. at the distinction seems to be based on the the victim idea that should receive (1974). 1396a(5) 16. 42 U.S.C. any benefit for which he or she has contracted. Overton, why perceive at 1308. 619 F.2d 17. We no reason verdicts findings damages medical could not to violating have been called for without the rul- seq. (1974). 13. 42 U.S.C. 1396 et The §§ Dis- Reid, precludes informing ing supra, trict of Columbia is treated as a state under the pay- of Medicaid the fact or amount (1980). statute. 42 430.1 C.F.R. § ments. 874

structed to make special findings 881, 885, 217, whenever (1968) P.2d 72 221 Cal.Rptr. “the basis of the jury’s determination can- (en banc) (where jurors court told not otherwise be ascertained and ... disclo- should “determine the full amount of the sure of the correct basis will be necessary damages” “subtractpng] without this other proper consideration by the trial court claim,” compensation jur- it was clear that motion addressed to the verdict and compensa- ors had not workmen’s deducted will, by token, the same be essential verdict, tion benefits from and credit for adequate judicial review.” Finkle v. Zim- granted). these benefits merman, 179, 181, 26 A.D.2d 271 N.Y.S.2d We cannot order a setoff without know- 820, (1966); 822 see Safer v. 186 Perper, ing what formed the findings basis of the 256, U.S.App.D.C. 269, 87, 569 F.2d 100 damage Quigley County award. See (1977); 398, Carruba v. Speno, 418 S.W.2d Suffolk, 75 A.D.2d 428 N.Y.S.2d 402 (Ky.1967); Brandt Corp. v. Warren Au- 46, curiam); 47 (per Corp., Brandt 37 tomatic Controls Corp., 563, 37 A.D.2d 322 292-93; 563, A.D.2d at at N.Y.S.2d Mis- N.Y.S.2d (per curiam). souri, Jackson, K. & O. Transit Lines v. The District did not request special find- (Okl.1968); P.2d St. Louis-San ings, and it is not clear from the record that Railway Tompkins, Francisco Co. v. jurors, reasonable $120,740 in awarding (Okl.1965). P.2d “If the verdict total damages, necessarily must have hopelessly ambiguous, a reversal is re awarded the full amount of the medical quired, retrial be limited to although bills appellees. The contested the Woodcock, the issue damages.” 72 Cal. extent to which the hospital bills covered 884; Rptr. Quigley, at 445 P.2d at see treatment for kidney and other injuries le- 47; at A.D.2d at N.Y.S.2d gally attributable to the by police assault Brandt, 37 A.D.2d N.Y.S.2d at officers, in contrast with treatment for in- 292-93; Railway Francisco St. Louis-San juries unrelated to the District’s liability. Co., 409 P.2d at 6.18 The trial court accordingly instructed the jurors that they should take into considera- Accordingly, we reverse the tion the value of “reasonable and neces- and remand the for a new trial case on sary” medical expenses “resulted damages: issue of from” the District, acts of the “to the ex- (or If all expenses have been tent of” the total amount of the bills. Rea- Medicaid, be) will paid by plaintiff-appel- jurors sonable could have found that not all lees shall not seek of such ex- of the decedent’s medical expenses were penses. “reasonable and necessary,” or that not all the medical ex- only portion of expenses these from” “resulted acts at- (or be) penses has been will Medic- tributable to the District. It is impossible aid, require special findings the court shall to know how much in medical expenses was of medical jury as to the amount awarded and how it was allocated among of each verdict. awarded as general three verdicts —one for the sur- The each special court then shall allocate to vival action and two for wrongful death. amount, District, therefore, finding any, paid (or to be has failed to show Medicaid, paid) by judg- the full and shall enter a sum for which it claims a credit was included in ment jury’s deducting from amount each verdicts. Compare Woodcock v. Fontana amount so Scaffolding verdict the Medicaid allocated. Co., Equipment & Reid, 69 Cal.2d supra.19 See White, D.C.App., Adkisson, 18. Cf. District of Appellees Columbia v. cite Oldham 19. (1982) (judgment (Ky.1969), proposition 442 A.2d S.W.2d 55 for the that reversed ambiguous jury and case remanded the District “waived the verdict.” for new trial where did case, inapposite, specify however. In that liability Oldham is not which of three theories of it defendant, by objecting language the to the upon, relied and there was insufficient evidence verdict, right challenge to the waived support theories). to one of the three interpretation Id. at 60. court’s of the verdict. plaintiff-appellees approved by 3. and has been requirements seek to introduce paid (or medical bills paid) by to be Medic- 1396a. federal officials. See id. §§ aid a purpose for other than of authorization Congress gave local medical expenses, e.g., as evidence a pertain- develop of to for the District Columbia ing injuries, 1-266, to the seriousness conforming plan. D.C.Code § trial court shall properly jury instruct Secretary of HEW and in June of as to their limited use.20 Dis- submitted approved plan trict.

So ordered. 1396a(a)(25) (1974) provides: 42 U.S.C. § KELLY, concurring Associate Judge, as (a) medical assistance plan A State for to reversal: must— I would reverse on the basis the Dis- ****:):* i.e., argument, trict’s alternative that local (A) that the State or provide trial court erred in to a refusing grant will take agency administering plan such credit for the medical all reasonable measures to ascertain bills or to be Specif- Medicaid. for liability pay of third to legal ically, the District present claims that in the (available care services provisions context of the federal Medicaid disease, or arising injury, out of plan) Statute, 42 1396a(a)(25) (1974), U.S.C. § or (B) that where the State disability, regulations, 433.136(3) 42 C.F.R. § has agency party local knows that a third (1980), require recovery of Medicaid funds agency will legal liability such a such where a tortfeasor is expense liable for the a resource of legal liability treat such as care given recipient. a Medicaid the care on whose behalf the individual The Medicaid program, U.S.C. §§ pur are made available services seq. (1965), et by Congress was enacted (C) (17)(B), and poses paragraph an amendment Security to Social Act. is legal liability where such a any case provides Medicaid free medical care in the after medical assistance found to exist public form of assistance persons whose been made available on behalf of has indigency qualifies receipt them for of such individual, will agency or local State providing benefits. The costs of free care for such assistance seek reimbursement are between govern- divided the federal .[1] legal liability the extent of such . . . participating ment and states or the Dis- to obtain provision requires trict This the states of Columbia. Each state which choos- payments pro- Medicaid es to have a reimbursement for program responsi- is or other negligence ble victims of administering its own un- vided to torts, that a third plan der a state which conforms to federal where it is determined Here, (available plan) arising “hopelessly ambiguous” under the out the verdict services disease, disability, (B) open interpretation. injury, and therefore not Woodcock, Cal.Rptr. agency P.2d at a 884. local knows that where the State or liability legal party such has such a third expense In a case where none of the medical liability agency legal as a will treat such Medicaid, (or be) paid by has been will behalf the individual on whose resource of findings need not make as to the are made available for the care and services amount of medical awarded as (C) (17)(B), paragraph purposes basis of each verdict unless there is some other legal liability case where such for the District to claim an offset. medical assistance has found to exist after individ- available on behalf of the been made 1396a(a)(25) was modified in U.S.C. the amount of reimbursement ual and where provides: It now reasonably expect to recover the State can (a) plan A State for medical assistance recovery, the State the costs of such exceeds must— agency seek reimbursement or local will (25) provide (A) local the State or legal to the extent of such such assistance plan agency administering will take all such liability. legal measures to ascertain the reasonable liability parties pay of third to for care and party is liable for the victims’ Appellees medical ex- argue that District a is not collected, penses.2 When reimbursements “third party” meaning within representing third party liability are dis- statute and should therefore be per- tributed to government the federal and to any mitted to amounts keep recovered state in accordance with their contribu- might payments. which Medicaid represent tions. 42 C.F.R. 433.154. Failure to seek § I disagree. appellees’ interpretation reimbursement leads to elimination of correct, were would be an there anomalous federal 433.138, funds. 42 -.139, C.F.R. §§ recipients result: District Medicaid would -.140(a)(1).3 where, a in get recovery double instances 42 C.F.R. 433.136 defines “third party” § tortfeasor; was the fortuitously, the District “any individual, entity or program that is they would receive no double may or be liable to all or pay part of the another the tortfeasor. party By were re- medical disease, cost of injury, or disability or quiring states to reimbursement seek an applicant or recipient.” In this case funds, face loss of federal Con- “entity District is an ... that is liable gress the costs of intended to reduce Medic- pay to all or part of the medical cost” of keep aid. to Permitting appellees por- appellees. Therefore, the District falls represents tion of the which ex- within the definition of “third party” in the penses contrary Medicaid is already paid circumstances here. Accordingly, the Dis- to that federal statute man- intent. The reimbursement, trict must seek appel- lees are dates receive a credit on permitted not a the District double recovery. legislative history 1396a(a)(25) 2. The days within § after end of the month Congress makes it clear that payment intended made. actively that states E.g., seek reimbursement. (b) If, paid, agency after a claim Cong., S.Rep. 90th 1st Sess. U.S. party, No. of a liable third learns of the existence Cong. 1967, p. (Nov. Code & Admin.News it must seek from the third reimbursement 14, 1967) (“States steps would to take to party days after the end of the within 30 person assure that the medical of a month it the existence of the liable learned of program, covered under the Medicaid which a party. third party legal obligation pay, third had a would (c) suspend agency An or terminate must paid, liability determined, not be or if is later an effort to seek reimbursement from liable steps would be taken to secure reimburse- party third the effort if it determines costs.”). ment in order to reduce would not effective because the be cost Cong., also (Aug. 90th 1st Sess. 123 H.R.Rep. No. reasonably expects amount it to recover will 7, 1967). recovery. be less The State than the cost Determining plan liability C.F.R. 433.138 must— § parties, provides: (1)(i) Specify third or the threshold amount oth- guideline agency agency er uses in determin- The that the must reasonable take measures liability legal ing to determine of third whether reimbursement from to seek pay plan. party; services under liable third or claims, Payment pro- 42 C.F.R. (ii) process by § 433.139 Describe which the vides: agency seeking reimburse- determines (a)The agency following options has effective; ment cost would not be payment of claims: (2) Specify period of amount or a dollar (1) may pay remaining, It the amount un- billings will accumulate time for which it schedule, agency’s payment der the after the respect party, particular third with liable to a party’s liability amount of the third has been making whether to seek re- the decision method, agency established. Under this covery. payment pro- withhold services Financial Par- C.F.R. 433.140 FFP [Federal recipient party liability vided to a if third share, ticipation] repayment of Federal liability currently the amount of cannot be provides: currently established or is not available to (a) pay- in Medicaid FFP is not available pay recipient’s expense. ments if— (2) may pay It full amount allowed require- agency to fulfill the failed agency’s payment under the schedule for the regard with ments of and 433.139 433.138 §§ claim and seek reimbursement from lia- liability seeking establishing reim- party legal liability. ble third to the limit of party .... bursement from a third agency option, If the chooses this it must party seek reimbursement from the third the judgment expenses paid by- for medical

Medicaid.

I that Medicaid not a collater- agree do majority’s

al source and that under the reversal the District is likewise

theory of by

entitled to a credit for all bills decision, join

Medicaid. Were I to

however, a new I would not remand for damages. According stipula-

trial on to the

tion, the court allocated the medical ex-

penses proved between the two causes of

action. The amount of the verdicts exceed- expenses by margin.

ed those a comfortable unjust

It me seems to to fault District failing request verdict objection

view of its the sub- repeated evidence,

mission of the medical bills in

the appellees’ insistence that the bills be question

introduced and the of a setoff be

decided the court post-verdict.4

case should be remanded with instructions

to reduce the verdicts the amounts of payments.

the Medicaid ALLISON, Appellant,

Thelma M. STATES, Appellee.

UNITED D.C., ap- Dubrovsky, Washington, No. 81-931. Felicia court, appellant. pointed by this Appeals. District of Court of Columbia Harris, Atty., Wash- Stanley U.S. S. May Submitted Terry, John A. D.C., with whom ington, D.C., at the Washington, Atty., Asst. Decided U.S. Oct. filed, Thomas L. Jackson time the brief Farrell, Peter- II, and Bruce A. Michael W. D.C., Washington, son, Attys., Asst. U.S. brief, appellee. on the were PRYOR, Associate MACK and Before PAIR, Judge, Associate Judges, Retired. course, in the assault. sustained Appellees, decedent insisted that also injuries the resulted from the

Case Details

Case Name: District of Columbia v. Jackson

Court Name: District of Columbia Court of Appeals

Date Published: Oct 6, 1982

Citation: 451 A.2d 867

Docket Number: 80-996

Court Abbreviation: D.C.