Cutting Recovery for the Write-Off? HB 2647 seeks to limit medical cost recovery to what has been “actually paid.”

Figuring out health care invoices can be a confusing and daunting task. Many times, the amount that is “invoiced” by a health care provider is not actually paid by you or your health insurer. Instead, a reduced or discounted amount is paid, due to various factors and/or contracts, and the remaining “unpaid” portion is then “written off” by the health care provider. When an injured party sues and seeks, among other things, compensation for the medical expenses incurred, the question becomes whether the injured party may recover the amount of past medical bills actually paid versus the invoiced amount.

This question was answered in 2014 by the Supreme Court of Appeals of West Virginia (“WV Supreme Court”). In Kenney v. Liston, 760 S.E.2d 434 (W.Va. 2014), the WV Supreme Court held an injured party is entitled “to recover the entire reasonable value of the medical services necessarily required by the injury. The tortfeasor is not entitled to receive the benefit of the reduced, discounted or written-off amount.” Id. at Syl. Pt. 7. What this means is, the injured party can recover the “invoiced” price, as opposed to the discounted price. Practically, this results in an injured party pocketing the “written off” amount, as opposed to it going to the health care provider. Many believe this is a “windfall” to the injured party and goes against the purposes of compensatory damages.

Based upon this believe

, House Bill 2647, introduced by Steve Westfall (R – Jackson, 12th District), on January 10, 2018 seeks to close this “windfall.” HB2647 would amend West Virginia Code § 57-5-4 by limiting recovery of past medical expenses to that which was “actually paid.” HB 2647 declared purpose is to “prevent compensatory damages awards for the value of reasonable and necessary health care services from exceeding the sums accepted by the health care service provider for treating the injured party.” Finally, this proposed statute specifically declares the decision in Kenny v. Liston as “contrary” to the Legislature's intent and expressly overrules the holding of this case.

This bill is currently pending in the House Judiciary Committee. The bill is co-sponsored by Delegates Cindy Frich (R – Monongalia, 51st District), Lynne Arvon (R – Raleigh, 31st District), Jim Butler (R – Mason, 14th District), Paul Espinosa (R – Jefferson, 66th District), Jordan Hill (R – Nicholas, 41st District), Kayla Kessinger (R – Fayette, 32nd District), Joshua Higginbotham (R – Putnam, 13th District), Tony Paynter (R – Wyoming, 25th District), John Overington (R – Berkeley, 62nd District) and William Anderson (R – Wood, 8th District). The bill may be read and tracked here: http://www.wvlegislature.gov/Bill_Status/Bills_history.cfm?input=2647&year=2018&sessiontype=RS&btype=bill.

The WV Supreme Court's decision in Kenny v. Liston may be read here: http://www.courtswv.gov/supreme-court/docs/spring2014/13-0427.pdf.