Id.at 621.
In Stanley, 452 So. 2d at 515-516, a minor child and his parents sought to recover damages for the retardation and cerebral palsy the minor had suffered since birth. The trial court permitted the defendants to cross-examine the plaintiffs’ expert witnesses regarding the availability and effectiveness of free or low-cost government programs available in the community to meet the child’s needs. In upholding the trial court’s ruling allowing such cross-examination, the Florida Supreme Court held that the collateral source rule was inapplicable, stating that:
the policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison of the present case with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits.
Id.at 515-16.
The above cases should be distinguished from cases involving benefits provided by nongovernmental entities or individuals, such as charities, employers or family members. State courts take a variety of different positions on whether the collateral source rule applies to these types of “gratuitous” services. See, e.g., Aaron v. Johnston, 794 S.W.2d 724, 726-27 (Mo. Ct. App. 1990) (holding that gratuitous continuation of wages by the plaintiff’s employer would be a collateral source); Johnston v. Aiken Auto Parts, 428 S.E.2d 737, 738-39 (S.C. Ct. App. 1993) (noting that, under state law, all benefits, whether gratuitous or not, are subject to the collateral source rule). There is a clear difference, however, between benefits provided by charities or family members, where it would appear inequitable to transfer the value to the defendant, and public school programming, which is available to all by law. In the latter situation, “no windfall results to either party by recognition of [the] public resource.” Washington, 897 S.W.2d at 621.
In many states, the law concerning the definition and treatment of “gratuitous” benefits is murky at best. Georgia case law provides an excellent example. In Whitaker v. Talbot, 177 S.E.2d 381 (Ga. Ct. App. 1970), the Georgia Court of Appeals went to great lengths to clarify that medical care and treatment provided to the plaintiff by the armed services was not furnished gratuitously. The court noted that “[m]edical service which is furnished by the Army to the soldier and his dependents ‘whenever practicable’ serves as a compelling influence when a prospective soldier weighs the advantages of enlistment…. No one who receives treatment at an Army Station Hospital, therefore, is the recipient of charity.” Id. Thus, according to the Whitakercourt, the medical care and treatment provided to the plaintiff was part of the “benefit of the bargain” of a soldier’s enlistment and was within the scope of the collateral source rule.
In contrast, Georgia trial courts have allowed evidence of the nursing care and room and board provided by family members as a potential element of recovery, indicating that free medical care and treatment provided by family members is not necessarily “gratuitous.” See Howard v. Hall, 145 S.E.2d 70, 76 (Ga. Ct. App. 1965) (noting that “[t]he evidence authorized but did not demand the finding that the father was entitled to recover the value of nursing care furnished by the child’s mother and grandmother.”); see also Southeastern Greyhound Lines Inc. v. Fisher, 34 S.E.2d 906, 911 (Ga. Ct. App. 1945) (stating that “we [cannot] say that merely because of the mother and daughter relation the latter would not be entitled to be paid for the reasonable value of the room and board occasioned by defendant’s conduct”).
RULE SHOULD NOT BE USED PUNITIVELY
Regardless of whether state-sponsored special education and therapy are considered “gratuitous benefits,” a more relaxed application of the collateral source rule to such benefits seems warranted, especially when one contemplates the jury’s enduring role of awarding only those damages supported by adequate evidence, rather than by conjecture or speculation. An award of future medical costs must be supported by competent evidence to allow the jury to make a reasonable assessment of the plaintiff’s damages. Because the purpose of compensatory damages is merely to compensate, not to punish, the defendant, the collateral source rule should not be interpreted to allow juries to thwart legislative policy by granting unwarranted “punitive” damage awards in negligence cases. See David Fellman, “Unreason in the Law of Damages: The Collateral Source Rule,” 77 Harv. L. Rev. 741, 748-750 (1964).
In sum, there is no controlling or persuasive authority for a broad-brush application of the collateral source rule to state-sponsored special education and therapy. Several trial courts have allowed defense counsel to cross-examine plaintiffs’ witnesses, including life care planners, parents of a neurologically impaired child and treating physicians and therapists, on the subject of available benefits that, under a traditional analysis, would have been excluded from evidence. As more courts begin to address this issue, it is reasonable to expect that many of them will refuse to strictly apply the collateral source rule. Therefore, a thoughtful and sensitive presentation of the special education, therapy and other benefits available to the plaintiff as a matter of right may become a powerful tool for defense counsel in the attempt to reduce the amount of liability faced by a medical malpractice defendant.
The development and presentation of damages evidence and testimony at trial requires a great deal of caution, ingenuity and creativity on the part of defense counsel. It is always wise to have the appropriate witnesses and evidence on the back burner before trial, including having a consulting life care planner and economist available to advise you behind the scenes if necessary. An effective defense counsel must be prepared to go to battle on all fronts in order to fully protect the client. The attorney should warn the jury right from the start, in opening statement, that he or she plans to do just that throughout the trial.
Lori G. Baer is a partner in the Atlanta office of Alston & Bird, L.L.P., and has successfully defended numerous medical malpractice actions, drug and medical device product liability cases and other complex litigation. Her focus has been on complex medical trials and use of creative approaches to these difficult cases in the courtroom setting. David M. Menichetti is an associate with the firm who focuses his practice on medical malpractice and product liability litigation. Telephone: (404) 881-7000.
