CCL President Robert S. Peck told Delaware trial lawyers that the recent state supreme court decision abrogating the collateral source rule in Medicare cases relied on questionable premises that can undermine the application of the rule in other cases if not challenged in a carefully constructed series of cases at a continuing legal education seminar Oct. 30. Peck was the featured speaker at the seminar and then joined a panel discussion after his opening remarks.

In Stayton v. Delaware Health Corp., decided June 12, 2015, the Delaware Supreme Court departed from the state’s historic treatment of the collateral source rule on the notion that, unlike private insurance, the plaintiff is not deprived of the benefit of the bargain, having not negotiated medical care discounts through an insurer. Instead, it found that the discount afforded through Medicare was for the benefit of the taxpayer. Yet, the decision, Peck said, ignored the various forms of Medicare coverage, some of which require beneficiaries to pay month premiums and contract through private insurers. While defendants have already begun to argue that the Stayton decision should be expanded to Medicaid and other instances where benefits have traditionally been treated as collateral sources, an expanded rule implicates the jury-trial, open-courts, and equal-protection rights guaranteed by the Delaware Constitution. CCL is already involved in one case where Stayton’s application to Medicaid benefits is at issue and awaiting a trial court’s determination.