Collateral Source (Phantom Damages) Reform Fails to Pass

In December 2015, Sen. Chris Kapenga (R-Delafield) and Rep. Mike Kuglitsch (R-New Berlin) introduced Senate Bill 405/Assembly Bill 539 relating to how a jury determines damages relating to medical costs arising from injuries. The bills would allow the introduction into evidence of both the amounts billed and the amounts paid for such services. WDC supported this legislation that failed to pass this session.

The current Wisconsin collateral source rule holds that the amount billed by medical providers is the measure of the reasonable value of medical expenses in personal injury actions, and the defendant may not introduce evidence of the amount actually paid by third parties, such as health insurers, even though the amount actually paid is often a fraction of the billed amount.

Both bills had a public hearing. The Senate Committee on Judiciary and Public Safety recommended SB 405 for passage on a party-line vote of 3-2. Neither bill made it to the floor and are dead for this session.

Strong opposition to the bills, in addition to the plaintiff’s bar, came from Wisconsin health insurers. Among other concerns, the health insurers’ fundamental problem was using paid medical expenses as the measure of damages could reduce the amounts they could recoup through subrogation for their health care coverage.

For a history of Wisconsin’s collateral source rule, go to Wisconsin Defense Counsel Journal (Spring 2013): Legislation Introduced Will Allow Juries to See Evidence of Collateral Source Payments When Determining Medical Expenses in Personal Injury Cases.