Koffman v. Leichtfuss

DIANE S. SYKES, J.

¶ 67. (dissenting). I respectfully dissent, for the reasons stated in my dissent in Ellsworth v. Shelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 76 (Sykes, J., dissenting).

¶ 68. As in Ellsworth, I agree with the majority here that the collateral source rule applies. The main focus of the analysis is the proper measure of damages for past medical expenses in a personal injury case, and also the influence of the law of subrogation.

¶ 69. I conclude, as I did in Ellsworth, that the proper measure of medical damages is the amount reasonably and necessarily incurred for the care and treatment of the plaintiffs injuries, not an artificial, higher amount based upon what the plaintiff might have incurred if he or she had a different sort of health plan or no health plan at all. See Ellsworth, 2000 WI 63, ¶¶ 27, 31 (Sykes, J., dissenting). It is inconsistent with the "make whole" function of compensatory damages to enrich a plaintiff by measuring medical expense damages by reference to their highest retail value rather than what was actually incurred. Id. at ¶¶ 23, 31.

¶ 70. The purpose of the collateral source rule is to prevent payments made on behalf of the plaintiff from inuring to the benefit of the defendant. Majority op. at ¶ 29; see also Ellsworth, 2000 WI 63, ¶ 7. That *65purpose is not served by completely disengaging the measure of medical damages from the facts and requiring the defendant to pay an amount in excess of what was actually incurred by the plaintiff or absorbed by someone else (employer, insurer, government or charity) on the plaintiffs behalf.

¶ 71. The purpose of subrogation is to prevent double recovery. Majority op. at ¶ 33; see also Ells-worth, 2000 WI 63, ¶ 18.1 see little difference between double recovery and the inflated recovery that results in the circumstances of this case. Where subrogation is present and the application of the collateral source rule would defeat its purposes, subrogation trumps the collateral source rule. See id. at ¶25 n.1 (Sykes, J., dissenting) (citing Jindra v. Diederich Flooring, 181 Wis. 2d 579, 511 N.W.2d 855 (1994); Voge v. Anderson, 181 Wis. 2d 726, 512 N.W.2d 749 (1994); Rixmann v. Somerset Pub. Sch., 83 Wis. 2d 571, 266 N.W.2d 326 (1978); and Lambert v. Wrensch, 135 Wis. 2d 105, 399 N.W.2d 369 (1987), relying on Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973)).

¶ 72. The majority cites Thoreson v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 231, 243, 201 N.W.2d 745 (1972) and McLaughlin v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 31 Wis. 2d 378, 395, 143 N.W.2d 32 (1966) for the proposition that the measure of medical damages is the "reasonable value" of the medical services rendered, regardless of whether the plaintiff incurred, was charged or paid for those services. This may make sense as a measure of damages in cases — like Thoreson and McLaughlin — where there is no actual charge by which to measure damages because the plaintiff's medical costs were gratuitously absorbed by another (the welfare *66department in Thoreson and the plaintiffs religious order in McLaughlin).

¶ 73. But Thoreson acknowledged that in most cases the measure of damages is the actual expense incurred or charged. Thoreson, 56 Wis. 2d at 243-44; see also Ellsworth, 2000 WI 63, ¶ 15. And here, as in most cases, there was an actual amount incurred (a small amount by the plaintiff and a larger amount by his insurers), and that amount came to a total of $66,062.58. I see no justification, either in the collateral source rule or the law of subrogation, for simply disregarding that actual amount and instead allowing recovery of an artificial, higher amount — $187,931.78—that no one ever has or ever will incur.

¶ 74. As I said in Ellsworth, "the measure of damages is not what the highest payor would have paid for the same medical services but what was actually incurred in the care and treatment of the plaintiff's injuries. . . .By this measure, the defendant is not relieved of responsibility for his tortious conduct, and the plaintiff is made whole." Id. at ¶ 31 (Sykes, J., dissenting). I reach the same conclusion here, and would affirm the circuit court.

¶ 75. I am authorized to state that Justice N. PATRICK CROOKS joins this dissenting opinion.