¶ 123. 0dissenting). The plaintiff-appellant challenges the constitutionality of Wis. Stat. § 893.55(7). She also claims that the admission of "prejudicial evidence of collateral source payments so that [she] was awarded only her out-of-pocket medical expenses instead of the reasonable value of the *60medical expenses incurred" entitles her to a new trial as to medical expense damages. The majority opinion reformulates the issues, and then eviscerates a key component of the medical malpractice statute. Because the court's decision countermands legitimate legislative action, I respectfully dissent.
rH
¶ 124. The collateral source rule provides that damages awarded to an injured person are not to be affected by the fact that the claimant received compensation from other sources, such as sick leave or insurance. Payne v. Bilco Co., 54 Wis. 2d 424, 433, 195 N.W.2d 641 (1972). This rule in tort cases has been part of Wisconsin common law since at least 1908. Gatzweiler v. Milwaukee Elec. Ry. & Light Co., 136 Wis. 34, 116 N.W. 633 (1908).
¶ 125. The rule was explained in Campbell v. Sutliff, 193 Wis. 370, 373-74, 214 N.W. 374 (1927) (ioverruled on other grounds by Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 92, 102 N.W.2d 393 (1960)), where the defendant contended that the trial court erred by instructing the jury, in assessing the amount of the plaintiffs damages, to "wholly disregard" the fact that the injured plaintiff had received money from an accident insurance policy and had continued to receive his salary while he was injured. The defendant argued that the plaintiffs damages should be measured "by the loss in wages or earnings he actually sustained" and that there were no lost earnings when his employer continued to pay the plaintiff throughout his disability. Id. at 374. The court rejected this contention, observing that "the prevailing doctrine in this country" was otherwise. Id. (citing Cunnien v. Superior Iron Works Co., 175 Wis. 172, 188, 184 N.W. 767 (1921)). It added:
*61We see no reason why one whose acts have caused injury to another should reap the entire benefit that comes from the payment of wages made by an employer, either as a gratuity to a faithful employee or because such payments are required by contract. Such payments do not change the nature of the injury which the employee sustains through the wrongful acts of the tortfeasor. If either is to profit by the payments made by the employer, it should be the person who has been injured, not the one whose wrongful acts caused the injury.
Id.
¶ 126. Early cases discussing the collateral source rule addressed whether insurance payments or continued wages should reduce an injured plaintiffs damages. Eventually the court considered medical expenses. See McLaughlin v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 31 Wis. 2d 378, 395-96, 143 N.W.2d 32 (1966); Merz v. Old Republic Ins. Co., 53 Wis. 2d 47, 53-54, 191 N.W.2d 876 (1971); Rixmann v. Somerset Pub. Schs., 83 Wis. 2d 571, 575-83, 266 N.W.2d 326 (1978) (collecting cases).
¶ 127. In Thoreson v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 231, 241-45, 201 N.W.2d 745 (1972), the court discussed medical expenses at length:
The general rule in Wisconsin has been that a plaintiff who has been injured by the tortious conduct of another is entitled to recover the reasonable value of his medical costs reasonably required by the injury. In most cases this is the actual expense, but in some cases it is not. But the test is the reasonable value, not the actual charge .... [T]he fact that necessary medical and nursing services are rendered gratuitously... should not preclude the injured party from recovering the value of those services as part of his compensatory damages.
*62Id. at 243. "We hold the collateral-source rule is not limited to paid-for benefits but applies to gratuitous medical services provided or paid for by the state." Id. at 245 (citing 22 Am. Jur. 2d Damages § 207, at 288 (1959); R.E Davis, Annotation, Hospital and Medical Services Furnished to Injured Person By Government as Affecting Damages Recoverable For Personal Injury or Death, 68 A.L.R. 2d 876 (1959); Dahlin v. Kron, 45 N.W.2d 833 (Minn. 1950)).
¶ 128. This principle was affirmed and extended in Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, a case involving Medical Assistance payments to a woman injured in an automobile accident, send Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201, another motor vehicle accident case in which the court drew a distinction between the subrogation interest in medical expense claims and the reasonable value of medical services rendered.
¶ 129. In both Ellsworth and Koffman, Justice Diane Sykes dissented, arguing that the real question was not whether the collateral source rule applied but which measure of damages it applied to. Ellsworth, 235 Wis. 2d 678, ¶ 26 (Sykes, J., dissenting); Koffman, 246 Wis. 2d 31, ¶¶ 67-74 (Sykes, J., dissenting). In Ellsworth, for example, the plaintiff put in expert testimony regarding the full retail value of the medical services she had received, which added up to $597,448.27. The amount actually paid by Medical Assistance was $354,941.21, an amount accepted by the medical providers as payment in full. Ellsworth, 235 Wis. 2d 678, ¶ 26. Thus, "[t]he difference — almost $250,000 — was absorbed by the providers as legally unrecoverable." Id.
¶ 130. The Ellsworth majority held that the plaintiff was entitled to recover the higher amount, while the *63dissent concluded that the extra $250,000 reflected "what the highest payor would have paid for the same medical services," id., ¶ 31, and thus yielded an unjustified windfall for the plaintiff.
¶ 131. From the outset, the collateral source rule recognized the unfairness in relieving a tortfeasor from full liability for injuries the tortfeasor caused simply because the injured party had the foresight to purchase or bargain for insurance or other benefits, or because the injured party received other "compensation" from a collateral source. Over the years, however, the collateral source rule has tended to inflate jury verdicts and lead to double recovery for plaintiffs. The rule sometimes provides an extra source of economic damages, and this may be significant when noneconomic damages have been capped by legislation. Indeed, some litigants have used the rule as a means to get around the cap on noneconomic damages. Using this strategy, double recovery is not an occasional byproduct of the rule; it is the desired objective. Inconsistent appellate decisions reflect judicial ambivalence about this turn of events. Compare Lambert v. Wrensch, 135 Wis. 2d 105, 399 N.W.2d 369 (1987), with Koffman.
¶ 132. Whatever the merits of the collateral source rule in the court's past cases, the case at hand presents new issues. Unlike past cases, this case involves medical malpractice, which is governed by a unique set of statutes. In 1995 the legislature created Wis. Stat. § 893.55(7), which modifies the collateral source rule in medical malpractice cases. Thus, the principal issue is how the modified rule affects medical expenses in medical malpractice cases. A second issue is whether the measure of compensatory medical damages in a medical malpractice case includes the reasonable *64value of medical costs already absorbed by the tortfea-sor. A third issue concerns the specific reimbursement rights of Medicare.
II
¶ 133. Medical malpractice cases are governed by Wis. Stat. ch. 655 (see Wis. Stat. § 655.005(1) (a)), as well as Wis. Stat. § 893.55 and a few other statutes like Wis. Stat. §~ 895.04 and 895.045. Chapter 655 and Wis. Stat. §~ 893.55(5) and (7) have bearing on this case.
A. Wisconsin Stat. § 655.009(2)
¶ 134. Chapter 655 was enacted in 1975. See ch. 37, Laws of 1975. Wisconsin Stat. § 655.009(2) was part of this original legislation and has not been changed. Entitled "Medical expense payments," it reads: "The court or jury, whichever is applicable, shall determine the amounts of medical expense payments previously incurred and for future medical expense payments." Wis. Stat. § 655.009(2) (emphasis added). Because this subsection became law more than two years after this court's 1972 decision in Thoreson, the legislature is deemed to be familiar with the collateral source rule and its application to medical expenses as described in Thoreson.
¶ 135. Subsection (2) does not speak to medical expense payments incurred "by a patient." Thus, it cannot be said to attack the collateral source rule head on. Nonetheless, the subsection speaks of "payments," both in the past and in the future, and this statutory term makes it different from the passage in Thoreson that "the test is the reasonable value, not the actual charge, and therefore there need be no actual charge." Thoreson, 56 Wis. 2d at 243. Logically, "medical expense *65payments incurred" are not the same as "the reasonable value of medical costs," whether one looks back to the past or forward to the future.
B. Wisconsin Stat. § 893.55(5)
¶ 136. In 1986 the legislature amended Wis. Stat. § 893.55 to create subsection (5). 1985 Wis. Act 340, § 72b. This subsection reads:
(5) Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of the injury to the date of the award and for the period after the date of the award, without regard to the limit under sub. (4)(d):
(d) Each element of medical expenses.
Wis. Stat. § 893.55(5) (emphasis added).
¶ 137. Economic damages, such as medical expenses, are not subject to the limit on noneconomic damages in Wis. Stat. § 893.55(4)(d). Thus, the purpose of subsection (5) is to require the jury to make specific factual findings with respect to the elements of economic damages in medical malpractice cases. Before enactment of this provision, courts had the latitude to submit special verdicts that combined elements of damages.1 Subsection (5) ended this practice in medical *66malpractice cases. Subsection (5) must be read in tandem with Wis. Stat. § 655.009(2) because subsection (5) refers to every award of damages under Chapter 655.
C. Wisconsin Stat. § 893.55(7)
¶ 138. In 1995 the legislature specifically addressed the collateral source rule in medical malpractice cases. 1995 Wis. Act 10, § 12m. The Act created Wis. Stat. § 893.55(7), which reads:
Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
¶ 139. Subsection (7) modifies the collateral source rule by allowing evidence of other compensation to be presented to the jury in a medical malpractice action. It does not require an offset or a reduction of a malpractice award by the amount of any other payments, but it permits the jury to make such a reduction after considering evidence of other compensation. Admitting this information into evidence negates the principle that the jury should "wholly disregard" the *67fact of other compensation. A legislative document describing 1995 Engrossed Bill 36, the source of 1995 Wis. Act 10, explains:
There are two main reasons for this modification of the collateral source rule. First, economists who have studied the effects of various tort reforms have concluded that collateral source rule modification yields substantial savings in the long run, second only to caps on damages in terms of effect on overall costs. Second, fairness is enhanced by reducing the likelihood of double recoveries and allowing juries to take other compensation into account in determining the amount of an award.
Proposed Amendment to Engrossed Assembly Bill 36: Admissibility of Evidence of Other Compensation, in Drafting Records, 1995 Assembly Bill 36 (available at the Wisconsin Legislative Reference Bureau, Madison, Wisconsin) (emphasis added). The purpose of the modification could not be stated more plainly.
¶ 140. Subsection (7) is different from Wis. Stat. § 655.009(2) and Wis. Stat. § 893.55(5) because, by its terms, it is not limited to evidence of payments for medical expenses. It is broad enough to cover all kinds of compensation from collateral sources for medical malpractice. Some of this compensation will have no right of subrogation or reimbursement, which indicates that the patient would receive double recovery under the collateral source rule in the absence of the statutory modification.
¶ 141. If the three provisions discussed above were combined into a single statute for purposes of this case, it might read as follows:
(1) The court or jury shall determine the amounts of medical expense payments previously incurred. [Wis. Stat. § 655.009(2)]
*68(2) Evidence of any compensation [for medical expenses] received from sources other than the defendant is admissible in [determining] damages. [Wis. Stat. § 893.55(7)]
(3) Every award of damages shah specify the sum of money, if any, awarded for each element of medical expenses. [Wis. Stat. § 893.55(5)]
(4) This section does not limit the substantive or procedural rights of persons who have claims based on subrogation. [Wis. Stat. § 893.55(7)]
Each of the principles stated above must be applied in medical malpractice cases to comply with statutory directives.
hH HH
¶ 142. The majority opinion acknowledges that the collateral source rule has been modified. Majority op., ¶ 48. But it jumps to the conclusion that "the modification of the collateral source rule is a modification of the rules of evidence to allow evidence of the other payments; the modification is not an explicit modification of the substantive collateral source rule that a collateral source payment does not reduce an award of medical expenses." Id. The opinion goes on to hold that "the circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments." Id., ¶¶ 5, 74.
¶ 143. These startling conclusions render Wis. Stat. § 893.55(7) a nullity. Moreover, they appear to lock in an inflated value of medical services, even when some or all of these services have been absorbed already by *69the tortfeasor. The latter proposition is completely contrary to conventional views of the collateral source rule.
¶ 144. The majority's mistaken conclusions are built on a series of false premises, derived from examination of (A) the text of the statute; (B) the legislative history of the statute; (C) the alleged legislative goal in adopting Wis. Stat. § 893.55(7), and three concepts of law allegedly "embodied in the statute, namely, (D) the valuation of medical services; (E) the collateral source rule; and (F) subrogation." Id., ¶ 26. It should be noted at once that the majority's methodology is an unprecedented departure from orthodox statutory interpretation.
¶ 145. First, the majority examines the text of Wis. Stat. § 893.55(7), which reads:
Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
It correctly notes that subsection (7) encompasses all damages in a medical malpractice action and makes evidence of all collateral source payments admissible in regard to all damage claims. Id., ¶ 28. The opinion then asserts: "Although the statute speaks of compensation to the claimant, the instant case demonstrates that the statute also encompasses payments, write-offs, or forgiveness made directly to health care providers rather than to the claimant." Id., ¶ 29 (emphasis added). This circular assertion is plainly a non sequitur.
¶ 146. "Compensation" in this subsection may contemplate the reasonable value of medical services received by a patient, but this does not mean that the *70reasonable value of medical services is necessarily to be measured by what the highest payor would have to pay for the same medical service. See Ellsworth, 235 Wis. 2d 678, ¶ 31 (Sykes, J., dissenting). In this subsection, "compensation" is a statutory term, not a common law concept, and it must be construed in a manner consistent with its legislative context and purpose. Subsection (7) was enacted before the court's decisions in Ellsworth and Koffman. It is not possible to square the legislative objectives of containing costs and minimizing double recovery with the court's interpretation of the term "compensation," especially when we factor in Wis. Stat. § 655.009(2).
¶ 147. The majority opinion also argues that "the text of the statute raises more questions than it answers." Majority op., ¶ 35. This contention, designed to open the door to statutory interpretation, sums up four paragraphs, ¶¶ 32-35, in which the majority poses questions that the statute does not address. Posing questions that will be answered by the circuit court or jury on a case-by-case basis is nothing more than a ploy to create ambiguity in the statute to justify statutory construction.
¶ 148. Second, the majority looks at legislative history and notes that an early draft of 1995 Assembly Bill 36 contained the sentence: "The award of damages under ch. 655 shall be reduced by any compensation that the injured party received from sources other than the defendant to compensate him or her for the injury." Majority op., ¶ 38. This sentence is deleted from the final draft.
¶ 149. 1995 Assembly Bill 36 had a Legislative Reference Bureau number of LRB 1913/3. This means that the bill introduced was the third draft of the 1913th bill requested. The deleted sentence was found in the *71first draft of the bill, and it was removed by the authors in the second draft before the third draft was introduced as the bill.
¶ 150. There is a perfectly reasonable explanation for deletion of the sentence from the first draft. The authors of the bill opted to permit juries to weigh the facts and then decide whether to reduce damage awards by all or part of the amount of collateral source payments, which is the practice in Delaware.2 The revised draft "does not require an offset or a reduction of any malpractice award by the amount of any other payments. . .. [The evidence] allow[s] juries to take other compensation into account in determining the amount of an award." Proposed Amendment to Engrossed Assembly Bill 36: Admissibility of Evidence of Other Compensation, in Drafting Records, 1995 Assembly Bill *7236 (available at the Wisconsin Legislative Reference Bureau, Madison, Wisconsin) (emphasis added). This flexibility anticipates juries balancing the equities in widely varying fact situations, and taking into account special circumstances like Medicare reimbursement.
¶ 151. The Delaware approach, followed by Wis. Stat. § 893.55(7), has also been adopted in such other states as Alabama,3 Arizona,4 and California.5
*73¶ 152. The majority opinion attempts to link the deletion of the sentence from the first draft of the bill and the later addition of a sentence by legislative amendment. The latter can be explained by a memorandum in the Legislative Council files. On January 20, 1995, representatives of Employers Health Insurance faxed a memorandum to Representative Sheryl Albers, who was then Chair of the Assembly Committee on Insurance, Securities and Corporate Policy. The memorandum read in part:
After discussions with the author and staff counsel, we reviewed the language again and consulted with our attorneys. Although the language itself does not pose the problem since the collateral source rule and those who have subrogation rights function independently, we continue to have concerns about future interpretations based on a creative application of the "made whole" doctrine.
Memorandum dated January 20, 1995, in Bill File for 1995 Assembly Bill 36 (available at Wisconsin Legislative Council, Madison, Wisconsin).
¶ 153. The Employers Health memorandum then proposed adding: "This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation." Id. This is precisely the language later added by a Senate amendment. In short, the legislative history of Wis. Stat. § 893.55(7) does not establish a link between the deletion of one sentence and the addition of another.
¶ 154. The majority complains that the legislative history does not make clear how the admissibility of collateral source payments to a plaintiff "impacts our *74case law defining 'reasonable value of medical services' as the reasonable value of medical services rendered, without limitation to amounts paid, or how that modification affects the collateral source rule and subrogation." Majority op., ¶ 47.1 believe it does. The statute permits the jury to consider collateral source payments in a medical malpractice case in determining damages. Subsection (7) preserves the substantive and procedural rights of persons who have claims based on subrogation. Those rights are established outside the statute. Persons who have claims based on subrogation or reimbursement must assert their claims at an appropriate time in an appropriate manner, neither of which is limited by subsection (7). The court is then required to respond in a way that both accurately informs the jury and protects subrogation rights.
¶ 155. The majority declares that the legislature was "well aware" of the American Law Institute Reporters' Study recommending "mandatory reduction of a plaintiffs tort award 'by the amount of present and estimated future payments from all sources of collateral benefits except fife insurance.'" Majority op., ¶ 44. It states that the legislature "deliberately did not adopt the Study's proposed approach." Id. The truth is, the Reporters' Study recommended "virtually complete reversal of the collateral source rule wherever such an approach is feasible," in tandem with "a bar to any subrogation or reimbursement rights exercised by loss insurers against the tort award." 2 The A.L.I. Reporters' Study: Enterprise Responsibility for Personal Injury, Approaches to Legal and Institutional Change at 182 (1991). The American Law Institute never adopted the Reporters' Study, and obviously the legislature took steps to preserve subrogation rights.
*75¶ 156. Third, the majority takes up legislative goals and declares that the "legislative goals are not explicitly set forth in the statute." Majority op., ¶ 49. This is not a surprise. Legislative goals are often not stated in the text of a statute. A court's job is to discern legislative goals from intrinsic sources, if possible, and extrinsic sources, if necessary. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 44-51, 271 Wis. 2d 633, 681 N.W.2d 110.
¶ 157. The majority accurately states two of the legislature's goals, namely, (1) to provide fact-finders with information about the collateral source payments in the hope that patients will not obtain double recovery; and (2) ultimately, to reduce health care providers' insurance premiums. The obvious goal not stated by the majority is to allow juries to take other compensation into account in determining the amount of damage awards. This goal is not acknowledged even though it is explicitly stated in the legislative history. See majority op., ¶ 42 n.16.
¶ 158. Fourth, having stated at least some of the legislative goals, the majority sets out to undermine them. It begins with a discussion of "the valuation of reasonable medical expenses." Majority op., ¶¶ 50-51. The majority writes: "In calculating damages, a person injured by medical malpractice may recover the reasonable value of the medical services reasonably required by the injury." Id., ¶ 52 (citing Thoreson, 56 Wis. 2d at 243).
¶ 159. There are two serious problems with this statement. First, Thoreson predates Chapter 655, predates Wis. Stat. § 893.55(5), and predates Wis. Stat. § 893.55(7). Second, Thoreson is not a medical malpractice case. Hence, to make the statement above, the majority has to determine that three focused statutes, including a statute that the majority admits modifies the collateral source rule, have no effect on the sub*76stance of the collateral source rule with respect to medical expenses in a medical malpractice case.
¶ 160. The majority dismisses Wis. Stat. § 655.009(2), saying it does not change "the longstanding rule that the 'reasonable value of medical services' is the reasonable value of medical services rendered, without limitation to amounts paid." Majority op., ¶ 54. This is not correct. The majority does not point to any authority to substantiate its conclusion that the reasonable value of medical services has no relationship to actual payments where actual payments have been made in the medical malpractice context. Clearly, Ellsworth and Koffman have not been the law for the last three decades, nor have they been applied in this manner in medical malpractice cases
¶ 161. Contrary to the majority opinion, there is substantial evidence that damages for past medical and hospital expenses have been tightly controlled over the years by Wisconsin judges, in keeping with § 655.009(2) ("the amounts of medical expense payments previously incurred"). For instance, Wis JI — Civil 1750A ("Personal Injury: One Subdivided Question as to Past and Future Damages" (1990)) instructs as to "Past Medical and Hospital Expenses" in Subdivision 1:
Question_inquires as to what sum of money will fairly and reasonably compensate the plaintiff for the damages sustained by him from the date of accident to the date of trial, which were the result of such accident, with respect to medical and hospital expenses.
In your answer to question_, you will fix upon such a sum of money as you find has been reasonably and necessarily incurred by the plaintiff for the hospital and medical care required for the treatment of his personal injuries. This amount may not be limited to doctor bills and hospital bills. The plaintiff is entitled to recover, as a part of these expenses, such an amount as *77will reasonably compensate him for costs of transportation, including ambulance service, from his home to the places of treatment and return and also for such amounts as were reasonably paid or incurred by him for nursing services and for drugs and medications.
Wis JI — Civil 1750A (emphasis added).
¶ 162. This old instruction, which was in use more than 20 years after the Thoreson decision, cross-referenced former Wis JI — Civil 1765 ("Personal Injury: Past Medical and Hospital Expenses" (1990)). The comment to the latter instruction cites two post-Thoreson cases: Green v. Rosenow, 63 Wis. 2d 463, 217 N.W.2d 388 (1974), and Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977). In Green, the court said: 'Where a medical bill may relate to two separate maladies, one having nothing to do with the plaintiffs claim, plaintiff must prove which charges relate to the injury caused by the defendant." Green, 63 Wis. 2d at 474 (emphasis added). In Fouse, the court supported medical and hospital expenses that doctors testified "were reasonable and necessary." Fouse, 80 Wis. 2d at 396-97 (emphasis added).
¶ 163. In other words, notwithstanding the Thore-son decision, the reasonable value of medical services has not been measured consistently as the highest reasonable cost for those services, particularly in medical malpractice cases. The "highest value" approach is a recent phenomenon. Government health programs such as Medicare and Medical Assistance are not the only health care payors who now secure medical services at a discount. Indeed, discounted payments may be the norm.
¶ 164. Even if Wis. Stat. § 655.009(2) and Wis. Stat. § 893.55(7) were to be interpreted as requiring the full, undiscounted value of medical services, this does not negate the admitted modification of the collateral source rule in § 893.55(7) for medical malpractice cases.
*78¶ 165. The majority's discussion of the collateral source rule in ¶¶ 56-63 is an unpersuasive denial of the fact that the legislature has acted to modify the rule. For instance, the discussion of the policy basis for the collateral source rule in ¶¶ 57-58 is beside the point, inasmuch as the legislature had a different policy objective in mind: containing the liability costs of health care providers by discouraging double recovery.
¶ 166. A medical malpractice case may be factually different from other cases. To illustrate, if a person receives treatment from a physician, the physician will bill someone for services, even if those services were negligent. If the physician receives discounted payment, then this "tortfeasor" will absorb the difference between the so-called "full" value and the payment actually made. If a "tortfeasor" is held accountable for the full value of medical services and is required to reimburse actual payments received from a third party, then there will be double liability as well as partial double recovery. The majority cannot show authority for the proposition that double liability for tortfeasors is a component of the collateral source rule.
¶ 167. This brings us to subrogation. Subrogation has been defined as the "substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor." Ruckel v. Gassner, 2002 WI 67, ¶ 14, 253 Wis. 2d 280, 646 N.W.2d 11 (quoting Black's Law Dictionary 1440 (7th ed. 1999)). Subrogation rights are often embodied in contracts, such as insurance policies. Sometimes subrogation is protected by statute or derived from operation of law. In Wisconsin, private subrogation agreements are ordinarily subject to the made whole doctrine. Id., ¶ 16 (citing *79Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 541, 253 N.W.2d 512 (1977)). However, legislatively sanctioned subrogation may override the made whole doctrine. Id., ¶ 42 n.7 (citations omitted).
¶ 168. There are multiple ways to handle subro-gation claims. Some of these were enumerated in Jindra v. Diederich Flooring, 181 Wis. 2d 579, 595-97, 511 N.W.2d 855 (1994). Wisconsin Stat. § 893.55(7) does not attempt to catalog all the possibilities or to determine the procedure to be followed in each situation.
¶ 169. The majority writes that "[a]ny interpretation of § 893.55(7) must... take into account that the statute does not limit the rights of claims based on subrogation." Majority op., ¶ 67. This is not in dispute. It does not follow, however, that "Wis. Stat. § 893.55(7) must be interpreted to require courts to instruct juries to be instructed to consider the collateral source payments only in determining the reasonable value of the medical services rendered." Id., ¶ 72. Such an instruction ignores situations in which there is absolutely no right of subrogation or reimbursement.
¶ 170. There are many different relationships between patients and health care providers. Four broad categories come to mind. First, patients may be the beneficiaries of a government program such as Medicare or Medical Assistance that pays most or all of their medical bills. Second, patients may be direct beneficiaries of private health insurance, private self-insurance, or some other privately funded coverage that pays all or most of their medical bills. Third, patients may pay their own medical bills or have them paid by a friend or family member. Fourth, patients with no health care coverage may receive services gratuitously from providers. This categorization is intended to be illustrative, not exhaustive, and to show the problems with the majority's holding.
*80¶ 171. The recent case of Meriter Hospital, Inc. v. Dane County, 2004 WI 145, 277 Wis. 2d 1, 689 N.W.2d 627, can be used as the teaching tool. In Meriter, a prisoner at the Dane County jail was admitted to the hospital. Criminal charges against the prisoner were dropped on the third day of the prisoner's extended hospitalization, after his parole hold had been lifted. Id., ¶ 1. This court concluded, after interpreting a statute, that the county was not obligated to pay for the prisoner's entire 34-day stay. The hospital ended up eating most of the extensive cost.
¶ 172. According to the decision, the total cost of the prisoner's care and treatment at Meriter, not including the overtime pay for the security provided, amounted to $187,569.37. Id., ¶ 5. This figure was based on a calculation method known as the Diagnostic Related Group (DRG) rate. Id., ¶ 9. By contrast, the government payment rate for the services was only $74,847.92. In fact, Dane County paid only $4,463.26. Id., ¶ 8. The difference between the last two amounts was $70,384.66.
¶ 173. Suppose, hypothetically, that the hospital's treatment of the prisoner had not been excellent, that medical malpractice had injured the prisoner on the fourth day after the county stopped paying. Would the hospital have any liability for medical expenses to the prisoner-plaintiff? If so, how much? Under traditional collateral source theory, there should be no hospital liability at all for medical expenses because there is no collateral source, only the tortfeasor. Unfortunately, this result is not clearly signaled by the majority opinion.
¶ 174. Changing the hypothetical, suppose the county paid the hospital the extra $70,384.66. Would the prisoner be entitled to medical expenses of $70,384.66 from the hospital, or even $187,569.37 (less the DRG rate incurred before the malpractice)? The difference *81between the $70,384.66 payment and the applicable DRG rate would have been absorbed by the hospital already, but the majority opinion implies that this difference as well as the actual payment would be subject to a damage award to the plaintiff. If the hospital had to repay the county, would the plaintiff be able to keep $70,384.66 in medical expense damages, or would the plaintiff be required to turn over the $70,384.66, less the cost of collection, to the county?6
¶ 175. The majority opinion in ¶ 73 asserts that Wis. Stat. § 893.55(7) leaves many questions unanswered, such as "the parties' ability to introduce evidence or argue about the obligation to repay collateral sources." In my view, it is the majority opinion that muddles the law and creates confusion. I can fathom no reason why a jury should not be permitted to receive any evidence or hear any argument on collateral source payments that will help it make a reasonable determination of medical malpractice damages, after taking into account subrogation and/or reimbursement rights and anything the plaintiff contributed to earn the payments. Under Wis. Stat. § 893.55(7), the jury must be permitted not to award double recovery to the plaintiff in a medical malpractice case.
IV
¶ 176. The case at hand presents unusual circumstances. These circumstances, which are outlined in ¶¶ 9-14 of the majority opinion, must be addressed with particularity.
¶ 177. The deceased, Vance H. Lagerstrom, was 87 years old when he fell and broke his hip on Novem*82ber 24, 2000. Mr. Lagerstrom was admitted to Myrtle Werth Hospital, where he underwent hip replacement surgery and eventually developed lung congestion and fever. There is no evidence of any malpractice at the hospital until December 2, 2000. Consequently, Mr. Lagerstrom's health care providers were entitled to receive payment from Medicare for every day of service up to the time of malpractice. This was about seven days.
¶ 178. The mistake with the feeding tube occurred on December 2. Assuming without deciding that the defendants are liable for all medical costs after the malpractice, the fact-finder would have to determine: (A) the actual post-malpractice payments from Medicare to Myrtle Werth Hospital; (B) the "reasonable value" of the post-malpractice medical services of Myrtle Werth Hospital; (C) the actual Medicare payments to Luther Hospital; (D) the reasonable value of the medical services of Luther Hospital; (E) the actual Medicare payments to Lakeside Nursing Home; (F) the reasonable value of the medical services of Lakeside Nursing Home; (G) the actual Medicare payments to St. Joseph's Hospital; (H) the reasonable value of the medical services of St. Joseph's Hospital; (I) the actual Medicare payments to any other health care provider after the malpractice; and (J) the reasonable value of these other post-malpractice services. Against this background, medical expense damages should be treated as follows:
¶ 179. First, the plaintiff is not entitled to recover medical expense damages from the defendants for any value of medical services provided by Myrtle Werth Hospital that exceeds the actual Medicare payments to Myrtle Werth because any such damages would not only be double recovery for the plaintiff but also double liability for the tortfeasor-defendants. Such liability is simply not part of the collateral source rule.
*83¶ 180. Second, if the jury were permitted to consider the full reasonable value of medical services provided by Luther Hospital, Lakeside Nursing Home, St. Joseph's Hospital, and any other post-malpractice provider (except Myrtle Werth Hospital), the jury must be given authority to award damages or not to award damages for the "value" exceeding actual Medicare payments. The jury should not be instructed to disregard actual payments by Medicare or actual costs to Mr. Lagerstrom in determining the award of damages for past medical expenses. The jury should be fully informed of the facts, including facts about reimbursement.
¶ 181. Third, Medicare reimbursement amounts should be determined by the court and inserted in the special verdict. Mrs. Lagerstrom argues that Medicare has statutory reimbursement rights under 42 U.S.C. § 1395y(b) (2000), codified at 42 C.F.R. pt. 411. She quotes 42 C.F.R. § 411.24 (2004) to the effect that: "If the beneficiary or other party receives a third party payment, the beneficiary must reimburse Medicare within 60 days." The Wisconsin Academy of Trial Lawyers argues in its amicus brief that:
The federal government is expressly granted statutory rights of reimbursement.... The government may seek to exercise these rights against any and all amounts recovered, regardless of their designation by the jury. Consequently, if a jury reduces or eliminates an award for medical expenses paid by Medicare, plaintiffs face the very real likelihood of a "double loss." This is because Medicare may assert its right of recovery against the entirety of the award....
¶ 182. If these representations are accurate, Medicare could assert its right of reimbursement against the plaintiffs award for the deceased's actual medical costs, the award for pain and suffering, and the award for wrongful death.
*84¶ 183. Such a draconian result would not occur with a private insurer because of the made whole doctrine. But there appears to be a basis for such a conclusion in the Code of Federal Regulations, even though the July 30, 2001, communication from the Health Care Financing Administration to Mrs. Lagerstrom's attorney demands reimbursement for "overpayment." This dilemma illuminates why Medicare should have been joined as a plaintiff in this litigation, just as the Dunn County Department of Human Services was joined as a plaintiff in Ellsworth. In any event, Medicare could not force Lagerstrom to repay more than the judgment amount. See 42 C.F.R. § 411.37(d) (2004) ("if Medicare payments equal or exceed the judgment or settlement amount, [Medicare's] recovery amount is the total judgment or settlement payment minus the total procurement costs").
¶ 184. In my view, upon remand, the circuit court should award Medicare the precise amount of money it paid for post-malpractice medical services, plus interest, minus a proportionate share of the cost incurred by Mrs. Lagerstrom in securing this reimbursement amount. This would protect all damages awarded to Mrs. Lagerstrom and enlarge the award against which the plaintiff attorney fees are calculated, permitting a significant deduction from Medicare's reimbursement.
V
¶ 185. The court gave the jury the following instruction:
Estate's Recovery for Medical, Hospital, and Funeral Expenses
Subdivision (b) of question 4 asks what sum of money will fairly and reasonably compensate the Estate of Vance Lagerstrom for the reasonable value of *85the medical and hospital expenses necessarily and reasonably incurred in the care of him from the date of the Ensure infusion incident to the time of his death, because of the injuries resulting to him as a result of the Ensure incident.
In medical negligence cases such as this one, you are allowed to hear testimony regarding payments made by Medicare, insurance and other sources. The law does not require you to reduce the sum found by you to be the reasonable value of the medical services of which the negligence of the defendants was a cause by any payment made by any such source. You may do so. It is for you the jury to decide.
¶ 186. The majority contends that the instruction is infirm because it does not alert the jury that the estate is potentially obligated to reimburse Medicare. Majority op., ¶ 82.
¶ 187. This criticism may be legitimate because of Medicare's potential statutory claim on the plaintiffs other damages. But the deficiency can be corrected by remanding the case to the circuit court for an award of Medicare's damages, as outlined above in ¶¶ 59, 62.
¶ 188. There is no need to order a new trial on the issue of hospital and medical expenses. Indeed, ordering a new trial on damages alone is unfair and prejudicial to the defendants. See Leonard v. Employers Mut. Liab. Ins. Co., 265 Wis. 464, 470, 62 N.W.2d 10 (1953). A jury should be able to hear all the facts and evaluate the plaintiffs demand for medical expenses in the context of the whole case.
¶ 189. For the reasons stated above, I respectfully dissent.
¶ 190. I am authorized to state that Justice JON E WILCOX joins this opinion.Wis JI — Civil 1750A (1982) included the following comment:
It has long been established that the trial court has absolute discretion as to the formulation of a special verdict. Traditionally, there has been a great diversity of practice in the trial courts as to how the damage question in the special verdict is framed. Some *66courts combine all damage elements in a single question; others combine pain and suffering and disability, future medical and loss of future earning capacity into a single question inquiry about plaintiffs personal injury while submitting separate questions as to past medical expense and past wage loss which are often answered by the court. (Emphasis added.)
Future medical expenses were often combined with other elements even when past medical expenses were listed separately.
See Del. Code Ann. tit. 18, § 6862 (2003). The Delaware statute was cited in 2 The A.L.I. Reporters' Study: Enterprise Responsibility For Personal Injury, Approaches to Legal and Institutional Change (1991), the very document cited by the Legislative Council in its analysis of 1995 Engrossed Bill 36.
The Delaware Statute is strikingly similar to Wis. Stat. § 893.55(7). Delaware Code Ann. tit. 18, § 6862 provides:
In any medical negligence action for damages because of property damage or bodily injury, including death resulting therefrom, there may be introduced, and if introduced, the trier of facts shall consider evidence of: (1) Any and all facts available as to any public collateral source of compensation or benefits payable to the person seeking such damages (including all sums which will probably be paid payable to such person in the future) on account of such property damage or bodily injury ....
The Delaware courts had no difficulty understanding that "The purpose of this statute is to prevent the collection of a loss from a collateral public source (such as Social Security) and then the collection for the same loss from the party or hospital being sued." Nanticoke Memorial Hosp., Inc. v. Uhde, 498 A.2d 1071, 1075 (Del. 1985).
Ala. Code §12-21-45 (2001). See Marsh v. Green, 782 So.2d 223 (Ala. 2000).
Ariz. Rev. Stat. § 12-565 (2005); see also Eastin v. Broomfield, 570 E2d 744, 752-53 (Ariz. 1977) (disagreed with on other grounds by Shotwell v. Donahoe, 85 P.3d 1045, 1049 (Ariz. 2004)).
Cal. Civ. Code §3333.1 (2005). California Civil Code § 3333.1 (2005) provides in part:
[T]he defendant... in an action for personal injury against a health care provider based upon professional negligence ... may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services....
The California Supreme Court has determined that "the [California] Legislature's assumption was that the trier of fact would take the plaintiffs receipt of such benefits into account by reducing damages," and that the statute is constitutional. Barme v. Wood, 37 Cal. 3d 174, 179-82 (1984). Both the Barme court and later California appellate panels were careful to note that although the original draft of the California statute required the trier of fact to reduce the plaintiffs damages, the enacted statute "simply provides for the admission of evidence of such benefits, apparently leaving to the trier of fact the decision as to how such evidence should affect the assessment of *73damages." Id. at 179 n.5; see also Hernandez v. California Hosp. Med. Ctr., 93 Cal. Rptr. 2d 97, 102 (Ct. App. 2000).
See Karsten v. Kaiser Found. Health Plan, 808 F. Supp. 1253 (E.D. Va. 1992).