Past medical bills and future medical expenses that are reasonably likely can be recovered by a Texas medical malpractice plaintiff. These are elements of economic damages that aren’t covered by Texas tort reform caps.
When it comes to past medical bills, there’s an important catch called the paid versus incurred rule. A medical bill often has the “sticker price” or the amount of the bill that was sent to a health insurance company or Medicare. That figure will be significantly higher than the number that was actually paid.
Under Texas tort reform laws, a plaintiff can’t recover the amount that was incurred, or billed, for past medical expenses. Instead, the number we must use to calculate the amount of past medical bills is the sum of: (1) the amount that was actually paid, including what insurance, Medicare, or Medicaid paid plus any co-pays or out-of-pocket payments; and (2) the amount that is still legally owed on the bill. If a hospital or doctor’s office writes off an amount, that can’t be recovered either.
When we are tallying the past medical bills of our clients, we order billing record affidavits from the relevant healthcare providers that separately state the amount that was paid, the amount that’s legally owed, and the total.
As the law currently stands, the paid versus incurred rule doesn’t apply to future medical expenses. Houston’s First Court of Appeals explained it like this: “The ‘paid and incurred’ rule does not apply to future medical expenses found by a jury. Services for future medical expenses have not yet been rendered at the time the award is made, and it is impossible to predict what, if any, laws will be in effect limiting or governing charges from providers sometime in the future. It is also impossible to know whether prevailing Plaintiffs will have insurance, whether there will be, for example, an Affordable Care Act, a national single payer system or other system.” Glen v. Leal, 546 S.W.3d 807, (Tex. App.– Houston [1st Dist.] 2018, pet. filed).
In appropriate cases, Painter Law Firm hires a life care planner to provide testimony about future medical expenses. I usually prefer life care planners who are physical medicine and rehabilitation physicians, because they can examine our client and come to their own conclusions. The life care planner prepares a report detailing the likely future care and treatment that our client will need along with the cost. Next, an economist or financial expert will analyze the life care plan and prepare a present value calculation for the jury to consider—that’s an amount that the jury could award today that would fund the anticipated future care of our client.
