it please the court my name is alexandra de sac fout and i represent the plaintiff sheila wills in this case i also represent the interests of every tort victim in this state who is either poor or are over age sixty five i mention the poor and the elderly as my clients because the presidential value of your decision in this case well feck their lives for years to come the fundamental issue in this case is whether the role that this court adopted in arthur vs the tour applies to the poor and the elderly in arthur this court decided that privately insured plaintiffs are entitled to recover the reasonable value of their medical services despite whatever discounts their insurers received the issue in this case is whether the poor and the elderly well also be able to recover the reasonable value of their medical expenses despite whatever discounts medicaid or medicare received and i ask cost of the service in this case did you introduce other evidence to establish the reasonable miss of the building no no your honor and the reason why is because the defense stipulated to the admissibility of the bells it answers because otherwise there would be an argument to be made that even if the earth a rational applies in medicaid medicare cases that the trial court was correct in reducing the award because you didn't establish the reasonable this but what you're telling me right now is there was a between privately insured and publicly insured plaintiffs by relying on the collateral source rule but its view of the collateral source rule is mistaken for four reasons first off in arthur this court defined collateral sources as benefits which are wholly independent of and collateral to the tortfeasor medicare and medicaid are benefits which are wholly independent of and collateral to the tortfeasor second their palette court majority failed to notice that in this court arthur arthur relied on section nine twenty a comment b to the restatement of torts common these states that if benefits are provided by law the plaintiffs should not be deprived of the advantage of those benefits to perceive that the policy reasons discussed in arthur and the restatement are equally applicable to both private and public insurance benefits both arthur in the restatement noted that it is the position of the law that a benefit directed to the injured party should not be shifted to become a windfall for the tortfeasor arthur cited the miami the court said what is crucial is that the tortfeasor not become the real beneficiary of a stranger's expenditure on behalf of the injured party both of these policy initiatives are equally applicable to privately insured as well as publicly insured plaintiffs finally the appellate majority fail to perceive that the additional policy objective mentioned in arthur i e that the defendant shouldn't be entitled to take advantage of expenditures made by the plaintiff was not the only rationale that arthur offered for the collateral source rule certainly it is our preference that peterson be overruled however the fundamental distinction between peterson and this case is the issue of timing which this court announced in arthur in the arthur case this court decided that the issue of whether a plaintiff incurred a liability for a medical bill was made at the time of service not when the final bill was eventually issued arthur noted that the liability for medical bills was not somehow distinguished extinguished merely because the providers decided to submit their bills directly to the insurance company nora's the liability for last because the late insurers later discharge the bill for less precisely the same thing as apple cole in this case sheila wills became liable for the reasonable value of the medical services upon her receipt of those services that the medical providers later decided to submit their bills to medicaid did not extinguish her initial raw ability for those bills that she incurred by receiving the services sheila wills could not force her doctors to submit their bills to medicaid indeed just as with private insurance more and more medical providers are choosing not to submit their bills to medicaid or to medicare when they realize that there is the possibility of a lawsuit or third party drivability and the reason why they don't is because of those discounts if the hospitals and medical providers don't submit their bills to medicare or medicaid they can file a lean in the underlying raw suit and seek to get full recovery of their bills without any discounts so now when accident victims go to the hospital the first thing the at the hospitals ask is were you involved in an accident they want to find out if there is the possibility of third party insurance because they don't want to build medicare medicaid medicare medicaid is only the last resort now the appellate court's reliance on peterson background chevrolet is misplaced precisely because of this timing issue in peterson the plaintiff never heard of a liability for medical services hospital in peterson agreed to provide those medical services gratuitously even before the plaintiff entered its doors here however as was noted in the nick on case there is no evidence that the medical providers ever intended to provide their services gratuitously the medical providers did generate bills with regard to billing they had a choice they could either bill she wills  dr trudeau did or else they they could submit their bills to medicate the medical providers had no legal obligation to bill medicaid it's true that once the medical providers bill medicaid they couldn't bill the plaintiff for the balance but the same was true in arthur their once the medical providers bill the insurance company they could not come after the plaintiff for the balance so a private insured plaintiff in arthur and a publicly insured plaintiff in this case are in precisely the same situation let's there's no inconsistency between peterson in this case and peterson the plaintiff never heard the liability here sheila wills did encourage the liability upon her receipt of the service at that moment as an author the plaintiff became entitle to recover the reasonable value of her medical bills the lesson of arthur is that what happened later to discharge those bills does not change the analysis does it doesn't matter whether the plaintiff incurred as the defendants talk about it expense obligation or liability to discharge those bills because in sheila wills case the obligation to pay the liability was incurred at the time of service now it's not just but textual analysis of the arthur opinion that supports the inclusion of the poor and the elderly within its position within its position but it's also strong policy reasons as well first off permitting the plaintiff to recover medicaid discounts is not a windfall for the plaintiff let's look at the facts of this case the medical bills were eighty thousand dollars the plaintiff received a pain and suffering nonny economic damages of seventy five hundred dollars there is no way that that was a compensatory award or if plaintiff got the discount would it be a windfall now although it's true that this was a obviously a particularly parsimonious jury have but that is all too frequently the case down state no point of truly receives a compensatory award because of the fact that every plaintiff must have her attorney's fees so tracked it from her award so no plaintiff is truly  restored to the prior completion that she had before an accident this that argument was made in a long view that justice make mark cited in her dissenting opinion in arthur the st mary's law journal article made that argument also damages for elderly and poor persons are already limited by external factors obviously by definition their loss of earnings has less their damages for pain and suffering are less by their limited life expectancy and in addition to due to that this is the sister toots of being poor and elderly the poor in the elderly generally have a lesser ability to explain and convey their pain and suffering then do more affluent victims how often have we looked at a part a tort victim that may have poor teeth or something like that and we know that that victim is going to receive the ras in court then a more affluent victim simply due to inherent your prejudices now there's nothing that this court can do to resolve that in the contours of this case however what happened below is that the appellate court needlessly adding to both of those inherent prejudices by preannouncing one rule for the rich and a different rule for the poor and the elderly and his delicate anderson but said back in one thousand seventy governor governments were not made to make the rich richer and the poor poor even the legislature has acknowledged that there should be collateral sources should not be used to reduce an award by more than fifty percent and that statute that section twelve to dash twelve o five isn't specifically applicable to this case but again it is some indication that no collateral sources are part of a pla compensation even if there were a windfall to the plaintiff there's no reason in law equity or good conscience can be advanced why a wrongdoer should benefit from a collateral source of damages caused by his wrongful act another policy reason why why a distinction should not be made between privately insured  plaintiffs and publicly insured plaintiffs is that if this court adopts the rule that medicaid and medicare recipients are not entitled to procure this their discount it will encourage tortfeasor to delay settlements are under the medic medicare regulations medical providers have up to twenty seven months to make a decision about rather  not to submit their bills to medicare so during that entire twenty seven month period defense can hope that the that the medical providers will get tired of waiting for payment of their bills and rather than see the full payment in the other two winding lying rossi's they may want to submit their bills to medicare for a certain reimbursement as opposed to a later reimbursement of a later amount down the road this specific policy was noted in the industrials commission's opinion in alice persons top notch kernels and it said it was a worker's comp case but it said wait a minute we can't read that employers take advantage of medicare rates because of the fact that number one it will cause players to get away paying medical bills in the hopes that the doctors will later submit the bills to medicare instead and second be the injuries that are due to workers comp injuries or injuries that are due to accidents the financial burden of velo should be caused by the industry or the tor and not by the public purse and that really is the fourth policy reason the top fees or rather than the public generally should bear the costs of accidents that furthers  deterrent purpose of the law that this court noted and similar that person is lutheran general hospital the public at large should not be forced to bear the costs of wrongdoer negligence there is the policy of having a uniform rule of law a tort fees or should not have their damages vary by the mere four to me of whether or not the because when these same accident takes place and the same injuries the value of the decision should not carry by based on whether there's public or private insurance and so for those reasons as well as the fact what the appellate court did in this case it failed to notice that the one other policy reason that this arthur that they are a court indicated for well coming to its decision i e that not allowing defendants to take advantage the expenditures made by the plaintiff was only one of the policy reasons but arthur offered and as this court stated in rosewood care center versus caterpillar what the public court did it took general language from arthur the defendant should not be able to take expanded advantage of expenditures made by the plaintiff and concocted a far who rule then the factual circumstances of arthur required the expenditures post was about one reason for the collateral source it was not its entire reason debt thank you thank you  is a pain without cost obligation or expense on the part of the plaintiff historically illinois has recognized and stood in the minority of states in recognizing a gratuitous benefits exception or precursor source rule in doing the research i chased back to nineteen zero seven where we have jones and adams versus george in that case this court held the plaintiff may not recover gratuitously render nursing services in that case a young child was injured in an accident his mother stayed home and nursed him back to health during the course of the lawsuit the parties the plaintiff tried to recover what they deemed were reasonable expenses for mother's nursing services however because hospital at no charge for the plaintiff we now come up to two thousand and five and we get a little different question presented to the court in the arthur case the court was presented with and struggled with what do we really addressed and answered the question but we ended up with a we got an excellent dissertation on the evidentiary and the substantive considerations and underpinnings of the collateral source rule so we have a gap here in arthur we have a plaintiff allowed to introduce the reasonable expense of those necessary medical services provided there was not a stipulation or say we did not contest the foundation for the medical bills this issue had been set up in pretrial motions in the case so we knew the court would go one way or another on it know there are contracts between you know the vendors and the insurers and we looked at that and earth or there is medicaid and medicare the the damages as they relate to any case and in this case i would pain and suffering if it was at seventy five hundred dollars per record i would think it's not going too far afield to say that in trials juries do look at the amount of medical bills and could look at the amount of reduced medical bills has some home impact you know in a word or isn't there prejudice in these cases where where in this case we have the elderly medicare medicaid we're in the earth or case this case ran around seventy thousand dollars and the numbers are in the briefs the pain and suffering award was seventy five hundred dollars the jury in this case was presented the full medical bills they were presented with a list based on the way you appeared it was the way you present to us having heard all of the medical testimony having heard from physicians about your surgery and what you wonder what we believe a reasonable value for your loss the normal life in your pain and suffering to seventy five hundred dollars so in fact that is not an end to the medical bills now there is a distinction between medicare and medicaid and private insurance and those bills we have a circumstance where courts have consistently held and repeatedly held the window the difference between what the physician shows on the bill and the amount of medicare medicaid pay is a gratuitous benefit to the plaintiff in looking at that you look at the statutes themselves and some of the courts that have analyzed those under the medicare statute and under the medicaid statute the patient is never ever responsible for the list price of the physician shills on the bill the patient is only responsible for in fact never sees that bill is only could draw from other circuits you nursed to where the medical bills may have been fifty dollars and the pain and suffering award was astronomical and you could you could still say that there wasn't any correlation but it's just her is i sit here to say that juries are not going to look at the amount of the medical bills and have that at least potentially influence their judgment as to what is adequate pain and suffering and i indeed those medical bills were astronomical because of all the treatment that played if we received is that fair that the jury doesn't know about the all the treatment that the well i think you hit on it in your question the jury hears more importantly than what the medical bill was here with the injury was and then here for example if a plaintiff is has a cervical strain and has six weeks of physical therapy following the accident and is going to go after that they hear from plaintiff is brain damage has a mild head injury in an accident and is hospitalized and then during the course of hospitalization throws a blood clot results in a stroke from that injury certainly there are injuries a deceased plaintive with which would be an actual example here a deceased plaintiff is going  so there you have somebody who has tremendous loss of a normal life damages no medical bills we leave this to the skill of the trial attorneys in presenting those cases  not for the difference there's another case whopper of leasing versus johnson that's the case from the second district in florida in two thousand and four that's a very important case here because that case relied on another florida case again here these were medicare levy and it is yes and i'm not referring to the amount that medicare medicaid actually paid for those bills certainly those are recoverable damages those cases recognize that window the difference between what the provider puts on the bills the list price and what medicaid or medicare pay or a gratuitous service to the pla happened it was i won't say how first as of this in hospital the plaintiff went to trial resented a large substantial medical bill to the jury the bill had been substantially reduced by medicare and medicaid novel not a nominal amount of the hospital said wait a minute we've accepted this nominal amount in satisfaction  services toward the plaintiff one in presented a very large amount they presented all of the bills they recovered the recover the bills they recovered several times over those bills for pain and suffering we should the hospital should be allowed to recover that difference should be allowed to recover what it has been paid and the court said no reports of hospital you cannot back out once you submit your charge to medicare medicaid you may not back out of that and recover that difference from the planet now hospitals as players council hospitals individuals have an option they don't have to submit  perspective some choose to do that some don't but the holding here that we're seeking is a much broader holding we're not seeking to say plaintive can only recover what medicaid is paid in only we're cover medicare is paid it's a broader holding its over two distinct rendered services and we're services are run around a partially gratuitous basis the plaintiff should not recover those partially due to his services that is consistent with illinois we having an equal protection issue here with regard to treating the sets of plaintiffs differently those who who have medicaid or who are have had no money versus those who have private never had an obligation to pay that bill the plaintiff is not good to submit that into evidence here the plaintiff is getting to submit the portion of the bill that has been paid into evidence they will have that to present to the jury we balance then the plainest right to compensation right recovery with deterring the defendant now the question becomes well are we seeking to perhaps ensure for payment to medicare for payment can medicaid for pa hospital or it's more like it's yes and the distinction between private insurance and medicare medicaid is in private insurance the plaintiff has gone out they've negotiated with an insurance carrier for coverage they've decided i'd like to have this induct of all i'd like to have this coverage i'd like to have this access to physicians in the medicare medicaid said in the play if there's no such negotiation the plaintiff takes with the government has already  back and have whatever amount that they believe is reasonable for their services or they can say and hold out for the litigation and i don't say that from a tenacious sense of stalling on the part of the defense because the plaintiff as we know controls when that lawsuit is filed but the provider can say or i'd rather have the risk of my bill being found an unnecessary trial managed or even manage the risk of my services even found to be not at all necessary for this and that occurs in cases where medical bills are not awarded by the jury so the provider said i'd rather have a dollar today than two dollars at the end of this case with respect to justice garments question of what it's more like it was and it's somewhat of a fiction because i think you know john q public negotiate with the providers you're saying medicaid this is the way it is right for you have this big negotiation you know we don't have this big negotiation process that goes on you have an insurance carrier the it is what it is most of them are insured through their employment anyway right so you can ok you're with unit cure or you're with signature you're with they have a certain policy it's not like there's any big negotiation going in the real world between the the insured in the providers or the insurance carrier is the intermediary between the insured and the provider right and the insurer provides the it's a two way street insurer provides the provider with access to a pool of patients and the provider says in exchange for access to a broad pool of patients and guarantee pay will charge these rates for my services certainly but i and i understand that and i understand what the hospital doesn't have much to say with respect to medicare or medicaid here or the reimbursement rates here is what we're doing here is what we're provisions of contracts and reimburse whether it's private insurance or workers medicare  of services and the cure but is there much difference between that situation and the sixty five year old who chooses to use medicare in terms of each services received if that's your question there should not be any difference between  services received and they may have different access to providers for example an insurance may have a way to get a bit wiser ultimately should there be a difference in how the sixty five year old is true for financial reasons and otherwise has to go through medicare or medicaid or fifty five year old was under medicare that's the ultimate issue is or will remember the sixty five year old or the twenty two year old who's on medicaid the sixty five year old on medicare the twenty two year old on medicaid is the provider deciding to be paid and they can ask i'd like to have that bill not reimburse not submitted i'd like to have that bill as part of my lawsuit now what was we can't hear when somebody is injured when they want they want to be taking hero and they want to be treated partially gratuitous services she falls between a completely gratuitous service as in peterson and obtaining service is a discount through her own efforts and expenses as an arthur allowing the plaintiff to recover her paid medical expenses but which are rendered on a purely gratuitous basis at arthur which allows the plaintiff to recover those services which she had painted discount through her own efforts and expenditures and expenditures accordingly i would ask yes your honour's i think to jump around a little bit here and first answer some of the questions members of the court raised to my opponent first off i think justice thomas you raised excellent questions about the impact of having the full amount of the medical bills coming in front of the jury this case it the fact that there was only an award of pain and suffering of seventy five hundred dollars is an aberration normally certainly we as plaintiff's attorneys always argue to the jury that pain and suffering should be that the medical bills provide additional and disha of but pain and suffering obviously there's not a pun to one correspondence but the more the medical bills the easier it is that is one number to anger an argument about what the pain and the reasonable is but the jury did hear the full amount of the medical bills that's right and in fact there was a stipulation that there would be no argument made that the bills  not reasonable and so there was we were not obligated to furnish any testimony that the eighty thousand dollars of bills was reasonable and by the same token the defendants agree not to contest but reasonable ness of the bills the bills were submitted as eighty thousand dollars and then in a post trial motion a reduction was made based on the amount paid but there was never any but we did not have to undergo the proof of reasonableness because the defense agreed that the bills would come in and the legal issue of whether or not our a reward was related to the amount paid was agreed to be resolved as a legal issue and not as a factual issue on what was  reasonableness of amount of bills so there was a stipulation there are second we do indeed have an equal protection argument here because this court decided in arthur that privately insured plaintiffs are entitled to recover the reasonable value of their medical bills even though their insurers result that bill and paid bill for last and even though once they are insurers paid the bill but the privately insured bill plaintiffs had no liability no longer had a liability for the full amount here the sac same situation exists once sheila wills incurred those medical services as arthur notes she became ryan bill for the full amount of the bills and the fact that regular the medical providers decided to bill medicaid not extinguish the fact that she had a liability for that entire amount of the bill and that's why policy on behalf of shriners to issue free services that's not the situation here here these doctors in this hospital wanted to be paid for their services and they had a choice of that they wanted to do they could either submit it to medicaid or they could submit their bill in the underlying lawsuit but and the fact that they decided later to submit it to medicaid does not resolve the fact that there was indeed an absolutely that that is true indeed because it would indeed handicap plaintiffs from showing the full amount of their damages not just the the financial loss but also their pain and suffering for the reasons you mention  but i mean i try to be conservative i don't ask the court to take any steps further than is necessary so let peterson does not have to be overruled even though obviously it would be my preference that it would be but as a matter jurisprudence it does not need to be overruled in order to reverse the appellate court in this case in this case though wasn't well i wasn't the pla and as i pointed out in some of the cases you look at some of the decided cases actually private insurance companies are getting almost the same discounts or even greater discounts than that or care medicaid and so  you know the discounts that the insurance companies are getting is tremendous and that doesn't differ whether it's medicare or medicaid there as just some of  the evidence of this decided cases i cited in my brief the private insurance companies are getting eighty percent discounts just like medicare and so they're probably not the time to bring this up since we haven't discussed it your yellow light is on but i mean in cases that don't have this issue in the practice is still to negotiate liens of carriers at the right and to the extent that a plaintiff can negotiate a lien that isn't really considered a windfall no one companies in terms of their right of reimbursements you know they are saying bank that dollar one so even if say for example the plaintiffs contributory negligence and their own reward is reduced by sixty percent they health insurers are saying hey we're still entitle to hundred percent on the dollar we don't know the plaintiff is only getting sixty percent of that on the dollar because of the contributory negligence and they're doing that as a matter of contract between  employer and the insurance company so i'm talking more the reversal of that on the windfall argument there are cases that don't deal with the exactly sure obviously we have here were after a verdict comes back the negotiate down there lean and may have been awarded x amount of dollars for medical services and then not had to pay you know initially going it would have had to pay them because the provider had a lien but the provider negotiates the lean down and i have never heard the argument made that that is now a windfall for play to for the plaintiff is to give the money back right and well and usually the negotiation occurs before just before the jury verdict because obviously once the jury verdict is awarded then the plaintiff has leverage to negotiate is out the window oh but certainly beforehand absolutely there is a negotiation where the pla may ask the medical provider to reduce their bills so that the plaintiff will have some more incentive to settle the case i'd like to ask a follow up question to justice garments question i think it was something to the effect  side argued so what would be the point of your argument that plaintiff asked to get all of this evidence in in order to be able to prevail on the pain and suffering element you've got all of it well because well two reasons because of the fact is that in the typical case we are getting the full amount of the medical bills in makes it easier for the plaintiff to argue that their pain and suffering is greater and you got the idea in this case that happened course the crucial thing that happened in this case was after the verdict the court reduce the verdict so that the plaintiff was limited to to or then your argument on equal protection does exist the plaintiffs would be treated differently absolutely absolutely because of the fact that the privately insured plaintiff they have to agree to become employed to seek employment they have if they're able they have to agree to reimburse the state for all the benefits paid to play very if they if they  get a recovery even in the situation where the medicaid recipient dives in certain instances their spouse can be liable for all of the bills that medica paid so there are a lot of obligations that the plaintiff has to the medicaid recipient has to agree they have to apply to become eligible for medicaid and then in order to do that they have to promise they'll seek employment and then and we hear me play the state and there are a lot of other obligations which i set forth in the brief