ORDER ON COLLATERAL SOURCE ISSUE
In Dеfendant’s Trial Brief, the Government raises the issue of whether Plaintiffs can establish the reasonable value of the medical services provided Garrett McMul-lin by introducing bills submitted by medical care providers. The parties agree thаt Arkansas law, the law of the state where the claim accrued, governs. 28 U.S.C. § 2674.
The Government states that Garrett McMullin’s medical bills were paid by Medicaid. The Government further states that the health care providers entered into аgreements providing that they will not collect from the Medicaid patient or any other source the difference between the charges billed and the amount paid by Medicaid, with the exception of certain co-payments and deductibles. Therefore, the amount paid pursuant to Medicaid agreements is significantly less than the amount shown on the bills. Defendant contends that the reasonable value of the medical services is the amount actually paid by Medicaid, and the collateral source rule is inapplicable. Plaintiffs contend that the application of the collateral source rule is not a developing area of the law in Arkansas, which holds firmly to the rule, and that the collateral source rule applies in this case. 1
The Arkansas Supreme Court has held that “the collateral-source rule applies unless the evidence of the benefits from the collаteral source is relevant for a purpose other than the mitigation of damages.”
Montgomery Ward & Co., Inc. v. Anderson,
Generally, Arkansas courts have found that a plaintiffs recovery from a tortfeasor “is not limited or offset by the amounts or services, if any, the plaintiff receives from his insurance company for property damages or mеdical bills, from his employer for lost pay, or from his church or neighbors for meals or child care.” Howard W. Brill,
Arkansas Law of Damages,
§ 6:4 (5th ed.2004) (citing
East Texas Motor Freight Lines, Inc. v. Freeman,
The Arkansas Supreme Court has refutеd criticism of the rule by explaining that “in these cases the courts measure ‘compensation’ by .the total amount of the harm done, even though some of it has been repaired by the collateral source, not by what it would tаke to make the plaintiff whole.”
Anderson,
Whether she received the money from her employer or from an insurance policy, she, rather than the alleged tortfea-sor, is entitled to the benefit of the collateral source, even though in one sense a double recovery occurs. Vermillion v. Peterson,275 Ark. 367 ,630 S.W.2d 30 (1982). The law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an insurance premium or lost sick leave, whereas to the tortfea-sor it would be a total windfall.
Id.
The Court in
Anderson
chose “to adopt the rule that gratuitous or discounted medical services are a cоllateral source not to be considered in assessing the damages due a personal-injury plaintiff.”
Id.
at 567,
The Court notes that while some courts have held that Medicaid payments are within the collateral source rule and may not be deducted from a plaintiffs recovery, there is authority to the contrary.
See
Natalie J. Kussart,
Paid Bills v. Charged Bills: Insurance and the Collateral Source Rule Arthur v. Catour,
28 U.S.C. § 2674 provides, “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances .... ” The stated policy of the Federal Tort Claims Act is that the Government is to be held liable in the same manner and to the same extent as a private individual under like circumstances. Here, it is important to note that had Plaintiffs been able to pursue the cause of action in a state court proceeding against Dr. Buxton, rather than under the Federal Tort Claims Act, the defendant would not be in a position to аrgue that the source was primary, rather than collateral. Furthermore, this case is complicated by the fact that the Government wears two hats. If one accepts the analogy of Medicaid as health insurancе for the needy, the Gov- *908 eminent essentially acts as Plaintiffs insurance provider. The Government also plays the role of tortfeasor by way of the Federal Tort Claims Act. In a typical insurance case, the plaintiff insured would bе allowed to recover the full amount of the medical expenses billed, while the plaintiffs insurer’s could only recover, though subrogation, the amount it paid. 3 The tortfeasor would be left paying the full amount of medical expenses billed, even though it may result in a windfall to the plaintiff. The Court sees no reason why the Plaintiffs should be treated differently than other recipients simply because the government happens to be occupying the role of tortfеasor in this case.
The Court is of the opinion that if faced with this issue, the Arkansas Supreme Court would find that the collateral source rule applies to this case, as it is primarily a rule of substantial justice. While the Court finds that the collаteral source rule applies in this case, this case will be tried to the Court. Therefore, during the trial, the Government will be allowed to submit the actual amounts paid by Medicaid for the record on appeal.
The Court’s opinion may appear to be inconsistent with the Eighth Circuit’s ruling in
Overton v. United States,
Accordingly,
IT IS HEREBY ORDERED THAT Plaintiffs can establish the reasonable value of the medical services provided Garrett McMullin by introducing bills submitted by medical care providers.
IT IS SO ORDERED.
Notes
. The Court recognizes that Arkansas Cоde Annotated § 16-114-208(a)(l)(B) provides:
Any evidence of damages for the cost of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.
However, this portion of the act only came into effect in 2003 as part of the Civil Justice Reform Act. Furthermore, Plaintiffs have submitted а number of trial court opinions finding this provision in violation of the Arkansas Constitution. Defendant has not refuted these arguments against the application of this statute.
. The Arkansas Supreme Court has recognized four situations in which a cоllateral source of recovery may be introduced as follows: "(1) to rebut the plaintiff’s testimony that he or she was compelled by financial necessity to return to work prematurely or to forego additional medical care; (2) to show that the plaintiff had attributed his condition to some other cause, such as sickness; (3) to impeach the plaintiff's testimony that he or she had paid his medical expenses himself; (4) to show that the plaintiff had actually сontinued to work instead of being out of work, as claimed.”
Anderson,
. The Court notes that in the event the Plaintiff recovers the medical expenses sought, it appears that the proper way to recover thе amount paid by Medicaid is to follow the procedures necessary to execute the lien on Plaintiffs recovery. See Ark.Code Ann. § 20-77-307.
. In
Anderson,
the Court emphasized that the "law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an. insurance premium or lost sick leave, whereas to the tortfeasor it would be a total windfall.”