*POOF* Legislation on Phantom Damages Vanishes in 2021 Georgia General Assembly – by J. Robb Cruser

SCENARIO: $100,000 billed to Plaintiff for a surgery center “facility fee” where the provider accepts $10,000 for full payment.

QUESTION: In seeking recovery for this medical bill, what amount should Plaintiff be able to “blackboard” to a jury? The inflated, billed amount ($100,000) that Plaintiff didn’t pay and isn’t responsible for (“phantom damages”) or the amount actually paid ($10,000)?

The defense bar has long fought against such phantom damages as they are used to justify even higher verdicts. And the fight continues into 2022, since the phantom damages bill language didn’t make it to the Governor’s desk following the Georgia General Assembly session.

Here’s what happened.

This year, language on phantom damages was included in HB 141, and in its most recent form read:

(a)   In any civil action to recover damages resulting from injury or death to a person, the special damages for medical and health care expenses incurred by the plaintiff shall be measured by the reasonable amounts actually:

  1. Paid by or on behalf of the plaintiff to health care providers for medically necessary care, treatment, or services; and
  2. Necessary to satisfy incurred but unpaid charges for medically necessary care, treatment, or services due to a health care provider by the plaintiff or a third party on behalf of the plaintiff.

(b) If the plaintiff in any such civil action has any form of public or private health insurance, including benefits under a governmental workers’ compensation program, an unpaid charge for medically necessary care under paragraph (2) of subsection (a) of this Code section shall be the amount by which the charge may be satisfied by the claimant’s health insurance in addition to the amount representing the plaintiff’s responsibility for a portion of the charge under the insurance contract or applicable governmental program, 21 LC 41 3116S – 3 – 42 regardless of whether the health insurance has been used, is used, or will be used to satisfy the charge.

(c) In any action to recover damages resulting from death or injury to a person, nothing in this Code section shall be construed to limit the right of a plaintiff or defendant to present evidence or testimony, or both, challenging the reasonableness of medical and health care expenses, whether incurred or projected future expenses, or the necessity of any treatment.

HB 141 passed in the Georgia House, but the language regarding phantom damages was stripped from the bill before its final vote in the state Senate. The remainder of the bill amended Georgia code to provide requirements for awards made from the Georgia Crime Victims Emergency Fund, and according to the Georgia Defense Lawyer Association, the chairman of the Senate Rules Committee, Senator Jeff Mullis, said, “I want to help my friends in the business community, but it can’t be on this bill. You have to pick another bill.”

And that was it. The defense bar will have to wait at least another year for legislation that mandates a plaintiff would be permitted to recover for medical expenses only in the amount that the provider accepted in satisfaction of the billed amount.

J. Robb Cruser