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The Adjudication of Affordability

By Gary Riveles and Alessio Faiella
August 01, 2016

Since the first civil lawsuit for money damages, plaintiffs have sought to maximize recoveries while defendants have sought to minimize them. This creates an obvious tension that is often left to a jury to weigh and come up with a decision.

In catastrophic personal injury actions, the largest element of compensatory damages often is the measure of the cost of lifetime future medical care. Traditionally, the plaintiff engages a Certified Life Care Planner, who estimates and tallies the annual cost of care at an off-the-shelf or asking-price value. In other words, the cost of care is estimated at what the provider seeks at maximum cost, without regard to or evaluation of who the payor is, whether government provided (like the cost of certain therapies for school-age children) or covered by health insurers (which typically negotiate huge-volume discounts from providers). The defense is often reluctant to engage a defense Life Care Planner for fear of setting a floor for damages.

Now, we have a new wrinkle in the issue, courtesy of the Affordable Care Act (ACA). How will it affect the award of money damages in civil lawsuits?

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