During the point in a jury trial when the plaintiff puts on evidence of damages, will he present the gross amount of past medical expenses, which would be subject to setoff post-verdict, or be forced to present the lesser amount fully satisfied by Medicare? The plaintiff will most certainly want to present the total gross amount. The Second and Fourth DCA, on the other hand, have a different perspective.

In Dial v. Calusa Palms Master Ass’n, Inc., the Second DCA affirmed the circuit court’s decision and held that evidence of the plaintiff/appellant’s past medical expenses was limited to Medicare bills that were indisputably tendered and paid. 308 So. 3d 690 (Fla. 2d DCA 2020). Similarly, in Gulfstream Park Racing Ass’n, Inc. v. Volin, the Fourth DCA took the same position as the Second DCA and concluded that “phantom damages” – the amount a provider bills that the injured party will never pay – are inadmissible when Medicare satisfies the expenses for a lesser amount. 2021 WL 1997278 (Fla. 4th DCA 2021).

In both of those cases, Dial and Volin cited 2015 Florida Supreme Court case Joerg v. State Farm Mutual Automobile Insurance Co. arguing that they could introduce the gross amount of their medical bills. The Court rejected this argument in both cases with emphasis that Joerg dealt with eligibility for future, not past, Medicare benefits to pay for future, not past, medical expenses. As a result, the Second and Fourth DCA ruled that a trial court cannot setoff the difference between the amount billed and the amount Medicare paid. Instead, the injured party is required to provide evidence of the amount paid by Medicare so as not to foster circumstances of plaintiffs receiving windfalls by being compensated twice. Nevertheless, Volin also joined the Dial court in certifying the question to the Florida Supreme Court of whether Joerg, which prohibits the introduction of evidence of Medicare benefits for consideration of future medical expenses, also applies to past medical expenses. The Supreme Court accepted jurisdiction to review the opinion of the Second DCA in Dial on April 26, 2021, but has not made a ruling on the issue to date. Given that there is no conflict among Florida’s appellate courts on this issue, it is plausible that the Supreme Court will rule that its decision in Joerg is limited to future Medicare benefits, and that for past treatment, only the amounts paid by Medicare are admissible.