In a ruling in late November 2019, the Pennsylvania Supreme Court in Sayles v. Allstate Ins. Co., ___ A.3d ___ , 58 MAP 2018, 2019 WL 6138409 (Pa. Nov. 20, 2019), ruled ineffective as against public policy, the standard language in PA auto policies that required insureds to attend PIP medical exams under terms of the auto policy. (A typical policy provision states “If an accident or loss occurs, the following must be done for the terms of the policy to apply: Any person qualifying as an insured under any coverage part of this policy must … submit, as often as we reasonably require, to physical exams by physicians we select.”). While many observers in the defense bar characterize this as “yet another victory” scored at the Pennsylvania Supreme Court by the plaintiff’s bar (a not-unreasonable observation), this case in fact is the culmination of a trend pre-dating the current make-up of the Supreme Court. Also, there is concern expressed that the ruling now makes the selection of the medical examiner solely and exclusively within the purview of the court. We think that is an overstatement of the ruling.
In a number of recent cases we’ve defended where the cost of future medical care was an item of claimed damages by the plaintiff, there were proposals by some enterprising defendants to argue at trial that the costs of future care (such as plaintiffs’ very expensive Life Care Plans) could be reduced by the terms of the federal Affordable Care Act, the effect of which could dramatically lower that typically-high item of special damages. Because (at least generally speaking) (1) the application of the ACA is federally mandated, (2) the ACA carries a wide array of mandated benefits, and (3) its costs to a user are both relatively predictable, and lower than the charged expenses for medical and ongoing care, the thinking was that the expense of the ACA benefits to the plaintiff could be shown to be far lower than the anticipated expense the medical provider or Life Care Planner would describe. Such an approach was attempted at trial by defendants in the Philadelphia County Court of Common Pleas case of Deeds v. University of Pennsylvania, 110 A.3d 1009 (Pa.Super. 2015), a medical malpractice action alleging a failure to diagnose that culminated in severe birth defects of the minor plaintiff. At trial, the court permitted the defendant to “inform the jury that [the minor plaintiff’s] substantial medical needs were all being attended to at little to no cost to [the] legal guardian due to the existence of state and federal education and medical benefits programs,” in the form of Medicaid and the ACA.