The Supreme Court, Healthcare, and Injury Claims

How could the president’s nomination of Amy Coney Barrett as Supreme Court Justice impact your personal injury claim? It seems pretty remote. After all, most injury claims settle well before trial, much less before being appealed to the higher courts, much less the highest court in the land! But I’m here to tell you, it may have an impact.

Judge Barrett has been critical of the Affordable Care Act (ACA, or “Obamacare”) in her academic writings. The Trump administration has (along with several state Attorneys General) brought a lawsuit in federal court to strike down the ACA. That suit is currently pending before the US Supreme Court and is scheduled for oral argument on Nov. 10, 2020—Judge Barrett could be confirmed by that time, and would certainly be confirmed by the time the written opinion is authored and published this coming spring.

So, we have a nominee who is critical of the ACA and (if confirmed) she’ll get to participate in deciding a case meant to strike down the ACA. With her participation, it is quite possible the ACA will be struck down, and we will go back to the health system we had ten years ago, before it was enacted.

Now remember, under the old system, private health insurance companies could discriminate and deny coverage based upon pre-existing conditions. This is where Judge Barrett’s appointment to the high court comes face-to-face with your personal injury claim. Let me explain further.

Let’s say you get into an auto accident and you fracture your humeral head (i.e., your shoulder bone, right at the top). You have a surgery to fix it. You make a claim with your no-fault auto insurance carrier. You miss some work. Your carrier pays some benefits for work loss and they pay your medical bills, for a while. But let’s say your recovery takes longer than expected. Let’s say you develop some traumatic arthritis as a result of the fracture. Your surgeon says you’ll need a total shoulder replacement someday, but you’re too young to get it now. Your insurance carrier denies any further benefits, claiming the arthritis is age-related, not auto-injury-relate. You hire a lawyer. You sue. You go through discovery. After a year of litigation, your carrier offers to settle by paying the benefits they owe, plus another $20,000 for future medical. Let’s say by the time you get the settlement offer you are recovered enough to go back to work, so your only future issue is that total shoulder replacement (which could well be 15-20 years down the road). What do you do?

If the ACA is in place, it’s an easy choice—you settle. You can take the money, get private insurance, and pay for the total shoulder through that private insurance. Because, after all, under the ACA, private insurance can’t deny your shoulder treatment as a pre-existing condition.

But what if the ACA no longer exists? Then what do you do? That’s a much harder choice. You could refuse to settle, go to trial (and get less money, since the judge/jury can only award what is owed, and not future benefits), possibly fight a lengthy appeal, and keep your claim open. Then, in 15-20 years, when you need that total shoulder, you can make another claim with your no-fault carrier. They’ll deny coverage again and you’ll be back in the same long, drawn-out fight. Maybe you’ll get them to pay for the surgery, but it could take another two years of litigation to force them to do so.

Your other option: settle, invest the $20,000, and hope it will be enough to pay for a total shoulder surgery in 15-20 years—it certainly isn’t enough to pay cash for such a surgery today. If it isn’t enough in the future, you’ll have to come out of pocket for the balance, since your private carrier will deny coverage for this pre-existing condition.

Let’s take this hypothetical and make it even harder. Let’s say your child is catastrophically injured in an auto accident. Let’s say there are several long-term health conditions caused by that injury, but some of them are arguably not related to the auto accident, so the carrier denies coverage for those. What do you do? Do you engage in an endless, life-long fight with the auto carrier, or do you settle and take the risk of not be able to afford to pay for your child’s medical needs in the future? There’s no easy answer here. The insurance company has the deep pockets to survive endless litigation, but your probably don’t. On the other hand, this is your child’s long-term health at stake, and you can’t put a price-tag on that.

Settlement decisions on no-fault auto and workers’ compensation claims are going to be much harder if the mandate protecting coverage for pre-existing conditions goes away. Injured parties’ lawyers will demand more to protect their clients, and fights with insurance carriers will be tougher and more drawn out.

Gutting the ACA has real-world consequences for all sorts of people across this country, injured plaintiffs included. It’s just one of many ways the political games in Washington trickle down to those of us living on Main Street.

Do you think you have a case? Click here to learn more.