Virginia has special rules regarding what damages are recoverable in personal injury cases including special rules relating to what some would call “double recoveries” of medical expenses. It is best to use examples to explain some of the rules. Imagine you have a health insurance policy, and a car insurance policy on your own vehicle but you are hurt in a crash when a careless driver runs a red light.
When you go to the emergency room, you provide your health insurance card and your health insurance pays for most if not all of your medical expenses. Lets add that you have a Virginia insurance policy on your car with an optional coverage called “med-pay” or more formally called “medical expense benefits.” Medical expense benefits coverage is optional under Virginia automobile insurance policies but covers a defined amount of medical expenses that arise from a motor vehicle accident–generally applying whether or not your were driving and also providing coverage whether or not you were at fault.
To follow this example further, you incur two thousand dollars worth of emergency room expenses that they are covered by the health insurance policy. Again, you also have car insurance “medical expense benefits” that cover up to five thousand dollars worth of medical expenses arising out of an automobile accident, and in such a case, the same two thousand dollars worth of emergency room expenses may be submitted to the automobile insurance company under the medical expense policy. (This is the second permissible recovery under insurance and is not limited to a co-pay balance owed for the E.R. bills).
First, the health insurance plan pays all of the emergency room bills in our example. The full amount of two thousand dollars in emergency room bills must still be paid by the medical expense benefit policy on the automobile insurance as well. Virginia has what is called an “anti-subrogation rule” prohibiting health insurance companies from seeking reimbursement of health insurer payouts from personal injury case proceeds. (Note: an experienced personal injury lawyer must review the health insurance policy as some policies not written in Virginia are not bound by Virginia’s anti-subrogation law on this point, but instead are governed under a federal law called ERISA).
Last, in the personal injury claim against the careless driver, the injured victim may also claim the same two thousand dollars in emergency room bills despite the fact that they have been paid twice over. This is a legal “triple recovery” because of a special personal injury rule called the “collateral source rule.” In normal circumstances, a careless driver does not get the benefit of the fact that the injured person paid for insurance benefits — this includes health insurance or medical expense benefits under an automobile insurance policy. The reason is that the injured victim PAID for those side insurance benefits and the law does not want to “reward” the careless person just because you as the victim paid insurance premiums yourself.
In fact, in Virginia, the following is the way that juries are usually instructed by Judges on what is called the collateral source rule:
The presence or absence of insurance or benefits of any type, whether liability insurance, health insurance, or employment-related benefits for either the plaintiff or the defendant, is not to be considered by you in any way in deciding the issue of liability or, if you find your verdict for the plaintiff, in considering the issue of damages.
The Virginia Supreme Court has applied this collateral source rule in tort (civil injury) cases for more than a century. In Virginia, compensation or indemnity received by a tort injury victim from a source collateral to the careless tortfeaser may not be applied as a credit against the amount of damages the careless tort-feaser owes. Virginia’s highest court has said that the injured party should be made whole by the tortfeaser, not by a combination of compensation from the tort feaser and collateral or side sources.
In a recent case, Virginia’s highest court held that portions of bills for medical expenses “written off” by an injured persons health care provider (after the provider accepted a health insurance payment) could not be deducted from the amount of damages owed by a careless tortfeaser, preserving the integrity of the “collateral source rule.” Our law firm’s general website is: hsinjurylaw.com .
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