10/5/2016 3:10:00 PM by Deutchman & Drews, LLC
Judge Vena is a trial court judge in Essex County and he authored the unpublished opinion of Charles v Thomas. ESX-L-9911-13 holding that the actual Medicaid bill and not the grand total of all the bills go to the jury. Since unpublished appellate court decisions are not binding, his unpublished trial court decision is also not binding. But, the logic and reasoning used by Judge Vena can be reiterated and used to support the position that only “that” amount that has to be paid back is the actual amount that goes to the jury, not the total amount of the bills. Unfortunately, there are no Appellate Court decisions and that results in varying rulings/uncertainty as to what amount goes to the jury. Basically, it would be either the total amount and then the amount is molded after the verdict or the actual amount that has to reimbursed. Per Judge Vena and citing Caldwell v Haynes, 136 N.J. 422, 433 (1994), the plaintiff is to be made whole and is to be compensated for the actual loss; Medicaid is not a collateral source, per N.J.S.A. 2A: 15-97 so there is no double recovery; and expenses “incurred” means the amount that plaintiff is liable for, not the total amount of the bills. Finally, Judge Vena states that he is fully aware that R. 1:36-3 and what it provides with respect to unpublished opinions, but notwithstanding that rule, the Appellate Division has made it clear that while unpublished opinions are not binding, the trial courts are nevertheless permitted to consider the analyses and find them persuasive and use the analyses as guideposts in reaching conclusions. National Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. 13, 19 (App. Div. 2005). Thus Judge Vena used the Appellate Court’s unpublished opinion in Ribeiro v. Sintra, 2008 N.J. Super. Unpub. LEXIS 771 at *2, (App. Div. July 10, 2008) to further support his analyses and ruling. In Ribeiro, the plaintiff's medical bills were almost $179,000 but the providers accepted a little over $25,000 from plaintiff's health insurance company as payment in full. Plaintiff argued that the entire amount should go before the jury and the defense argued that the amount accepted as payment in full should be presented to the jury. The Appellate Division noted that the purpose of the collateral source rule, N.J.S.A. 2A: 15-97, is to prevent double recovery and the statue placed no restriction on the introduction or evidence of the total amount of medical bills incurred. Id. at *6, citing Dias v. A. J. Seabra’s Supermarket, 310 N.J. Super. 99, 102 (App. Div. 1998). Thus, in Ribeiro, the Appellate Division held that medical expenses incurred are the equivalent to the amount accepted by medical providers for the full payment of their services rather than the actual amount stated in the medical bills. Id. At *7.
Thus, the analyses and persuasiveness of both Judge Vena’s trial court case and the unpublished Ribeiro appellate court case should be used as guideposts to argue that only the amount of the medical bills/lien that must be reimbursed is to go to the jury and that is the boardable amount and NOT the total amount of the bills incurred. BUT, a trial judge is free to reject that argument as we are not aware of any published appellate court cases that support the position that it is limited to the reimbursable amount.
Please contact us with any questions about these unpublished decisions or if we can help you in any way.