The family of a man who died of a heart attack after being released without care can’t recover “medical expenses” that the hospital wrote off as charity, the Ninth Circuit ruled, interpreting Montana law on this question for the first time.
Johnnie Gibson went to federally funded Central Montana Community Health Center in September 2015 complaining of chest pain, heartburn and fatigue. The hospital’s staff didn’t examine him for heart disease and a week later he suffered a fatal heart attack at another hospital in Billings.
The government conceded negligence and a judge awarded the family $578,248 in damages but refused to award $165,662 in hospital and ambulance charges. While the family received a bill for the services, the entire amount was forgiven, and the balance was zero.
The family appealed, citing a 1984 Ninth Circuit decision that held funeral expenses were similar to medical expenses, which can be recovered as damages regardless of whether the bill has been paid. And in 2015, the court ruled that Montana law allowed plaintiffs to tell jurors about “medical expenses” they hadn’t actually paid because the information might help the jury determine the reasonable cost of medical care as well as the magnitude of the injury.
In other decisions involving Montana law, however, the Ninth Circuit rejected a plaintiff’s insurance claim for medical costs that were paid by workers’ compensation and refused to allow another driver to pocket money his insurer collected from another company through subrogation.
This case presented a slightly different question, the Ninth Circuit said: Can someone recover medical expenses that the provider has written off and the plaintiff will never have to pay? While that might be possible when the plaintiff has insurance coverage that allows for double recoveries, the court concluded, in other situations the plaintiff might be out of luck.
“Our precedents make clear that, as a general rule, a plaintiff is not permitted to recover an element of damages she does not in fact suffer,” the court ruled in its Dec. 7 decision.
The plaintiffs argued the key word was “incurred,” and that regardless of who paid Gibson’s medical bills they were entitled to recover the cost.
“The decision to write off the expenses did not involve a payment of any kind, and no amount was at any time paid or payable by the hospital, by the ambulance service, or by any third party,” the appeals court ruled, however.
The Montana Legislature amended the statute in 2021 to eliminate the “collateral source rule,” under which medical expenses were reduced by the amounts “paid or payable” by third parties, mainly insurers. Under the new law, plaintiffs can recover reasonable charges that “have been incurred and at the time of trial are still owing and payable,” regardless of whether they will ultimately be paid by insurance.