IN THE SUPREME COURT OF THE STATE OF DELAWARE

DIANE L. STAYTON, §

§ No. 601, 2014

Plaintiff Below- §

Appellant, §

§

v. § Court Below – Superior Court

§ of the State of Delaware, in and 

DELAWARE HEALTH CORPORATION, § for Kent County 

a Delaware Corporation; HARBOR §

HEALTHCARE CENTER COMPANY, § C.A. No.: K12C-04-026 RBY

L.L.C., a Limited Liability Company; §

MARY FRANCIS DRANDORFF, RN, §

Individually; RUTHANNE ROBERTS §

JACOBS, RN, Individually; and RENEE §

L. WOZNICKI EDGE, RN, Individually, §

§

Defendants Below- §

Appellees. §

Submitted: May 6, 2015 

Decided: June 12, 2015

Before STRINE, Chief Justice, HOLLAND, VALIHURA, VAUGHN and 

SEITZ, Justices; constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.

William D. Fletcher, Jr., Esquire, Schmittinger and Rodriguez, P.A., Dover, 

Delaware, for Appellant Diane L. Stayton.

Norman H. Brooks, Jr., Esquire, Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., 

Wilmington, Delaware, for Appellees.

SEITZ, Justice:
2

I. INTRODUCTION

The plaintiff, Diane Stayton, sustained serious burn injuries while a resident 

at Harbor Healthcare and Rehabilitation Center (“Harbor Healthcare”), a skilled 

nursing center in Lewes, Delaware. She brought a medical negligence suit against 

those responsible for her care at Harbor Healthcare. In addition to general 

damages, Stayton sought special damages for the cost of her medical care after she 

was burned. Absent Medicare coverage, the burn hospital and other providers who 

treated her for her injuries would have billed Stayton $3,683,797.11. Because 

Stayton qualifies for Medicare, the Centers for Medicare and Medicaid Services 

(“CMS”) paid Stayton’s healthcare providers $262,550.17 in full satisfaction of the 

expense of Stayton’s hospital stay and other care. Medicare regulations required 

the write-off of $3,421,246.94, and Stayton’s healthcare providers could not 

“balance bill” her for the amount written off. 

The defendants moved for judgment on the pleadings seeking judgment as a 

matter of law that Stayton’s medical expense damages were limited to the amount 

actually paid by CMS, rather than the amount Stayton might have been billed for 

her care. Stayton opposed the motion, relying on the collateral source rule. Stated 

generally, the collateral source rule provides that if an injured party is compensated 

for injuries from a source independent of the tortfeasor, the payment is not 

admissible to limit the damages paid by the tortfeasor. Application of the rule in 
3

this case to the amount Stayton’s healthcare providers wrote off would mean 

Stayton could introduce into evidence as potential special damages the amount her 

healthcare providers might have billed ($3,683,797.11), instead of the amount 

actually paid ($262,550.17). 

The Superior Court granted the defendants’ motion, and limited Stayton’s 

medical expense claim to the amount paid by CMS. The court decided that the 

collateral source rule did not apply to amounts required by federal law to be 

written off by healthcare providers. We accepted certification of an interlocutory 

appeal under Supreme Court Rule 42 from the Superior Court’s decision. 

On appeal, Stayton argues that the Superior Court should have applied the 

collateral source rule to the Medicare write-offs. We conclude that the collateral 

source rule does not apply to amounts required to be written off by Medicare. 

Where a healthcare provider has treated a plaintiff covered by Medicare, the 

amount paid for medical services is the amount recoverable by the plaintiff as 

medical expense damages.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

According to the allegations of the complaint, at the time of the accident, 

Stayton was a 76 year-old resident of the Harbor Healthcare and Rehabilitation 

Center. She was wheelchair bound, paralyzed in one of her arms and one of her 

legs, and had also suffered from a stroke. While unsupervised, she attempted to 
4

light a cigarette and caught her clothing on fire. Stayton was burned over twenty 

three percent of her body, requiring treatment by over thirty physicians and other 

healthcare providers during her nearly six month hospital stay at Crozer Burn 

Center in Chester, Pennsylvania.

Stayton alleges that defendants’ medical negligence caused her injuries. The 

hospital and her other healthcare providers billed a total of $3,683,797.11,

representing the amount that would be billed to Stayton absent Medicare

coverage.

1

 The same bill summary shows that Medicare through CMS paid the 

providers $262,550.17 in full satisfaction of all healthcare provider charges.

2

 

Medicare is a government-sponsored health insurance program for people 65 

years old or older who are eligible for Social Security retirement benefits.3 The 

program is largely funded through taxes paid by employers and employees under 

the Federal Insurance Contributions Act.

4 Beneficiary participation is involuntary.5

 

Many eligible beneficiaries receive benefits directly from the federal government, 

 

1 App. to Opening Br. at 43-54 (Complaint Exhibit A).

2

Id. at 54.

3

42 U.S.C. § 1395c. 

4

26 U.S.C. §§ 310(b), 3111(b). 

5

Participation on the part of health care providers is by agreement. See 42 U.S.C. § 1395cc(a)(1) 

(providing that “any provider of services . . . shall be qualified to participate [in Medicare] and 

shall be eligible for payments . . . if it files with the Secretary an agreement” and specifying the 

terms of the agreement).
5

but some elect to receive their benefits through private insurance companies that 

contract with the Government to provide “Medicare+Choice” plans.6

When a healthcare provider like Crozer Burn Center delivers medical 

services to a patient covered under Medicare, the provider must submit its bill to 

the Medicare agency for reimbursement.7The provider cannot seek reimbursement 

for its medical services from anyone other than Medicare.8 Medicare pays, on 

average, less than one-third of a patient’s medical expenses. 9 The healthcare 

provider is required to write off the remaining balance, and it cannot collect any 

further payments on that amount.10 Under the Medicare as Secondary Payer Act, 

the Medicare Trust Fund can place a lien on any tort recovery by the patient in the 

amount of the benefits actually paid, minus a portion of the litigation costs.11 

The defendants moved for judgment on the pleadings under Superior Court 

Civil Rule 12(c) to limit Stayton’s past medical expense damages to the 

 

6

42 U.S.C. § 1395w-21(a)(1). 

7

42 USC § 1395cc(a)(1)-(2). Providers may charge Medicare patients applicable deductibles 

and coinsurance.

8

Id. 

9

Stephen L. Olson & Pat Wasson, Is the Collateral Source Rule Applicable to Medicare and 

Medicaid Write-Offs, 71 DEF. COUNS. J. 172, 172 (2004) (citing Confronting the New Health 

Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medical 

Liability System, U.S. Dep’t of Health and Human Services, July 24, 2002). 

10 42 U.S.C. § 1395cc(a)(1)-(2); 42 C.F.R. § 489.21(a). 

11 Id. at § 1395y(b)(2)(B)(iii); 42 C.F.R. § 411.37(c) (“If Medicare payments are less than the 

judgment or settlement amount, the recovery is computed as follows: (1) Determine the ratio of 

the procurement costs to the total judgment or settlement payment. (2) Apply the ratio to the 

Medicare payment. The product is the Medicare share of procurement costs. (3) Subtract the 

Medicare share of procurement costs from the Medicare payments. The remainder is the 

Medicare recovery amount.”). 
6

$262,550.17 paid to Stayton’s healthcare providers by CMS. They argued that the 

written-off portion of the claim was not recoverable because neither Medicare nor 

Stayton would be required to pay it and Crozer Burn Center and Stayton’s other 

providers would never collect it. In response, Stayton contended that she was 

entitled to the entire amount billed by Crozer Burn Center and her other providers, 

including the written-off portions of her bills, because under the collateral source 

rule, an injured party is permitted to recover the full reasonable cost of medical 

services from the tortfeasor, and a tortfeasor may not benefit from payments that 

the victim receives from third parties.

Although this Court recognized the collateral source rule as a “firmly 

embedded” principle of Delaware law in Mitchell v. Haldar,

12 the Superior Court 

distinguished benefits received as a consequence of a contract with a private

insurer from benefits received under operation of federal law. The Superior Court 

relied on our decision in State Farm Mutual Auto Insurance Company v. Nalbone, 

which held that the plaintiff was not allowed to seek a damage award that included 

compensation for lost wages when she was receiving reimbursement for those 

losses from her employer’s disability plan. 13 The Superior Court found that 

Nalbone qualified the collateral source rule by requiring the court to examine the 

 

12 Mitchell v. Halder, 883 A.2d 32, 37 (Del. 2006) (quoting Yarrington v. Thornburg, 205 A.2d 

1, 2 (Del. 1964)). 

13 State Farm Mut. Auto Ins. Co. v. Nalbone, 569 A.2d 71 (Del. 1989). 
7

consideration that had been paid by the plaintiff before awarding a double 

recovery. “[I]f a Plaintiff has paid consideration for recovery from a collateral 

source,” the Superior Court reasoned, “then the double recovery is permissible.”14 

But because Stayton “did not contract with her health provider to accept reduced 

payments from Medicare for her medical expenses,” the court found the collateral 

source rule did not apply.15

After examining several cases addressing the question of whether the full 

amount of medical expenses, including amounts paid for by collateral sources, 

could be recovered in a damages action, the Superior Court decided to follow a 

Superior Court case, Rice v. The Chimes, Inc.16 In Rice, the plaintiff sustained 

burn injuries that were also treated at Crozer. Crozer submitted charges of 

$883,000 to Medicare, and Medicare paid $59,000, requiring Crozer to write-off 

the remaining $824,000. In finding that the plaintiff could only recover $59,000, 

the amount paid by Medicare, the Superior Court reasoned that the collateral 

source rule did not apply to expenses that are never paid. It concluded that 

“healthcare debt is simply extinguished by operation of law when the healthcare 

provider elects to accept payment of assigned benefits directly from Medicare.”17

 

14 Stayton v. Delaware Health Corp., 2014 WL 4782997, at *2 (Del. Super. Sept. 24, 2014)

(internal quotations omitted). 

15 Id.. at *1.

16 Rice v. The Chimes, Inc., C.A. No. 01-03-260 CLS (Del. Super. Oct. 4, 2002). 

17 Id. at 4 (quoting Wildermuth v. Staton, 2002 WL 922137, at *5 (D. Kan. April 29, 2002)). 
8

The Superior Court concluded that Stayton could only recover $262,550.17 

as compensation for her medical expenses, the only amount that Crozer Burn 

Center and Stayton’s other providers would receive as payment, and the maximum 

amount that Medicare could recover from Stayton. It concluded that preventing 

the plaintiff from recovering “inflated and fictitious damages” reduced the 

possibility of overly-inflated special damage awards, which are often based on 

awards for actual damages, and ameliorated the increasing cost of liability 

insurance coverage for healthcare providers.18

III. ANALYSIS

Where an injured plaintiff seeks to recover for medical services, the plaintiff 

must prove two distinct issues – first that the value claimed for medical services is 

reasonable, and second that the need for medical services was proximately caused 

by the tortfeasor’s negligence.

19

 Here we focus on whether the amount claimed by 

Stayton—the full amount of her hospital bill—reasonably approximates the value 

of her medical services. 

On appeal, Stayton asks this Court to reverse the Superior Court’s judgment, 

arguing that it shifts the benefit of Medicare from the victim to the tortfeasor, 

contrary to the collateral source rule and the Restatement (Second) of Torts. 

Stayton also contends that a rule limiting her recovery to the amount of Medicare 

 

18 Stayton v. Delaware Health Corp., 2014 WL 4782997, at *2.

19 Mitchell, 883 A.2d at 37.
9

payments would differentiate between similarly situated personal injury claimants 

because victims covered by Medicare would receive less compensation in a tort 

suit than parties with private medical insurance coverage. 

The defendants contend in response that the Superior Court correctly found 

that the collateral source rule does not apply to the written-off portion of Stayton’s 

medical bills because Stayton did not contract with Crozer Burn Center or her 

other providers to accept a discount, nor did she contract for Medicare benefits. 

The defendants also argue that Medicare is different from other private collateral 

sources: specifically, Crozer Burn Center and Stayton’s other providers have a 

legal obligation to accept a lower payment, determined by Medicare, for its 

medical services, and Medicare has no right of subrogation for the written-off 

portion of Stayton’s medical bills. They also contend that the total charges 

submitted to Medicare were based on factors other than the reasonable value of the 

medical services provided, and as such, the collateral source rule cannot permit 

recovery of those inflated, illusory charges. Finally, the defendants argue that a 

contrary ruling conflicts with tort law principles, which attempt to put a victim as 

close as possible to the same position as the victim was in before the injury. 

The Chamber of Commerce of the United States filed an amicus curiae brief 

in support of defendants. It argues that we should affirm the Superior Court’s 

ruling because allowing Stayton to recover medical expenses that were never paid 
10

would merely generate windfalls for plaintiffs and their lawyers. Because the gap 

between the amount paid by Medicare and the actual medical bill is often quite 

large, requiring a damage payment for the full amount billed would lead to a 

substantial increase in insurance premiums, harming businesses and consumers.

We review the Superior Court’s legal determination de novo.

20

A. Delaware’s Collateral Source Rule

The collateral source rule is of common law origin21 and has deep roots in 

American jurisprudence and Delaware law. Its first application in the United 

States “was apparently more than one hundred fifty years ago in a case ultimately 

decided by the United States Supreme Court.”

22 More than a half century ago, this 

Court recognized the collateral source rule as “firmly embedded in our law.”

23

The collateral source rule is “designed to strike a balance between two 

competing principles of tort law: (1) a plaintiff is entitled to compensation 

sufficient to make him whole, but no more; and (2) a defendant is liable for all 

damages that proximately result from his wrong.”24 Where a plaintiff receives 

payments or compensation from a third party source, the plaintiff’s net loss will be

less than the full damages proximately caused by the tortfeasor’s wrongdoing.

 

20 General Motors Corp. v. New Castle County, 701 A.2d 819, 822 (Del. 1997).

21 Restatement (Second) of Torts § 920A, cmt. d.

22 Mitchell, 883 A.2d at 37 (discussing The Propeller Monticello v. Mollison, 58 U.S. 152

(1854)).

23 Yarrington v. Thornburg, 205 A.2d 1, 2 (Del. 1964). 

24 Mitchell, 883 A.2d at 38.
11

When such payments or compensation are provided by a source independent of the 

tortfeasor, the collateral source rule, “based on the quasi-punitive nature of tort law 

liability,”25 operates to allocate the resulting windfall to the plaintiff rather than the 

defendant. “A plaintiff who receives a double recovery for a single tort enjoys a 

windfall; a defendant who escapes, in whole or in part, liability for his wrong 

enjoys a windfall. Because the law must sanction one windfall and deny the other, 

it favors the victim of the wrong rather than the wrongdoer.”26

When the rule applies, a tortfeasor cannot reduce its damages because of 

payments or compensation received by the injured person from an independent 

source.

27 The rule is “predicated on the theory that a tortfeasor has no interest in, 

and therefore no right to benefit from, monies received by the injured person from 

sources unconnected with the defendant.”28

 

25 Id.

26 Id. Even though the right to recover the written off amount might be termed a windfall, the 

amount of the windfall is affected by subrogation rights. Most private insurance policies provide 

a subrogation right to the insurer covering its payments. Guillermo Gabriel Zorogastua, 

Improperly Divorced From Its Roots: The Rationales of the Collateral Source Rule and Their 

Implications for Medicare and Medicaid Write-Offs, 55 U. KAN. L. REV. 463, 470 n.56 (2007) 

(quoting Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 141.2(c)(2)). As noted 

earlier, Medicare and Medicaid beneficiaries are subject to a lien covering government payments 

on any personal injury recovery. 42 U.S.C. § 1395y(b)(2)(B)(iii); 42 C.F.R. § 411.37(c). 

27 Restatement (Second) of Torts § 920A.

28 Mitchell, 883 A.2d at 37-38
12

B. The Collateral Source Rule and Healthcare Provider Write-Offs

Even though the collateral source rule has been recognized by most states,

29

it has not been uniformly applied to healthcare provider write-offs. States have 

generally taken one of three approaches. Some states apply the rule to healthcare 

provider write-offs in the same manner as they apply it to third-party payments, 

such as payments by insurers. Other states apply the rule to provider write-offs, 

but only if the injured party can be said to have bargained for the write-off. A third 

group of states refuses to apply the rule to provider write-offs altogether. 

States that apply the collateral source rule to provider write-offs as they do 

to third party payments view provider write-offs as benefits conferred on plaintiffs

by providers, in the form of services gratuitously rendered at a price below the 

standard rate.

30

 These states emphasize the collateral source rule’s traditional 

purpose of ensuring that benefits conferred on injured parties by third parties do 

not end up going to the defendants who injured them, unless the defendants can 

 

29 Yarrington, 205 A.2d at 2.

30 See Bynum v. Magno, 101 P.3d 1149, 1156 (Haw. 2004) (“Because a plaintiff like Joseph is 

not required to pay the difference between the standard rate and the Medicare/Medicaid payment, 

that part of such medical services attributable to such difference could be viewed conceptually as 

gratuitous service to the plaintiff, so as to come within the collateral source rule.”); Wills v. 

Foster, 892 N.E.2d 1018, 1024 (Ill. 2008) (citing comment c(3) to the Restatement (Second) of 

Torts § 920A regarding gratuities, which states “the fact the doctor did not charge for his 

services . . . does not prevent [the plaintiff’s] recovery for the full value of the services”).
13

legitimately claim credit for the benefit.

31

 As expressed in comment b to the 

Restatement (Second) of Torts § 920A:

The injured party’s net loss may have been reduced [by a collateral 

source benefit], and to the extent that the defendant is required to pay 

the total amount there may be a double compensation for a part of the 

plaintiff's injury. But it is the position of the law that a benefit that is 

directed to the injured party should not be shifted so as to become a 

windfall for the tortfeasor. If the plaintiff was himself responsible for 

the benefit, as by maintaining his own insurance or by making 

advantageous employment arrangements, the law allows him to keep 

it for himself. If the benefit was a gift to the plaintiff from a third 

party or established for him by law, he should not be deprived of the 

advantage that it confers. The law does not differentiate between the 

nature of the benefits, so long as they did not come from the defendant 

or a person acting for him.32

States that apply the collateral source rule to write-offs “bargained for” by 

the injured party express concern about granting double recoveries to plaintiffs

given rising insurance costs, but on balance believe that applying the rule to 

bargained-for write-offs honors the insurance arrangement that the plaintiffs have 

paid consideration for, and encourages the purchase of insurance.33 Respecting 

 

31 See Bynum, 101 P.3d at 1154 (“Comment b to [Restatement (Second) of Torts] § 920A . . . 

explains that, although double compensation may result to the plaintiff, such a benefit should 

redound to the injured party rather than ‘become a windfall’ to the party causing the injury.”) 

Wills, 892 N.E.2d at 1030 (“A benefit that is directed to the injured party should not be shifted so 

as to become a windfall for the tortfeasor.”) (internal quotation omitted).

32 Restatement of Torts § 920A, cmt. b.

33 See Bozeman v. State, 879 So.2d 692, 704 (La. 2004) (“The collateral source rule expresses a 

policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal 

injuries and other eventualities.”) (quoting Helfand v. California Rapid Transit District, 465 P.2d 

61, 66 (Cal. 1970)); Acuar v. Letourneau, 531 S.E.2d 316, 322 (Va. 2000) (“Those amounts 
14

insurance benefits that are bargained for stands in contrast to the traditional 

Restatement justification for the collateral source rule. Under the Restatement, the 

collateral source rule allocates any windfall to plaintiffs because tortfeasors do not

have a legitimate claim to such windfalls and, as between the two, plaintiff should 

get the windfall. Benefit-of-the-bargain states allocate bargained-for “windfalls” 

to plaintiffs on the theory that plaintiffs do have legitimate claims to them. If in 

bargaining for insurance, insureds bargain for healthcare provider write-offs, then 

allowing them to recover provider write-offs from defendants allows them to 

benefit from that bargain. This, in turn, makes purchasing insurance more 

attractive. 

The last group of states disagrees, as a threshold matter, that the collateral 

source rule, by its express terms, applies to provider write-offs. These states

reason that provider write-offs are not, in the words of the Restatement,

“[p]ayments made to or benefits conferred on the injured party . . . .”

34 The written 

 

written off are as much of a benefit for which [the plaintiff] paid consideration as are the actual 

cash payments made by his health insurance carrier to the health care providers.”).

34 Restatement (Second) of Torts § 920A(2). See Howell v. Hamilton Meat & Provisions, Inc., 

257 P.3d 1130, 1133 (Cal. 20011) (finding the collateral source rule inapplicable to provider 

write-offs because “[t]hey are neither paid to the providers on the plaintiff’s behalf nor paid to 

the plaintiff in indemnity of his or her expenses”); Stanley v. Walker, 906 N.E.2d 852, 857-58 

(Ind. 2009) (“[B]ecause no one pays the negotiated reduction, admitting evidence of [write-offs] 

does not violate the purpose behind the collateral-source rule. The tortfeasor does not obtain 

credit because of payments made by a third party on behalf of the plaintiff.”) (quoting Robinson 

v. Bates, 857 N.E.2d 1195, 1200 (2006)); Robinson 857 N.E.2d at 1200 (“The collateral source 

rule does not apply to write-offs of expenses that are never paid . . . . Because no one pays the 

write-off, it cannot possibly constitute any payment of a benefit from a collateral source.”) 

(emphasis in original); Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786, 791 (Pa. 2001) 
15

off portions of medical bills are paid by no one. Though the healthcare provider 

confers a benefit on the injured party by writing off a portion of its bill in the event 

the injured party is the payer, when the payer is Medicare, Medicaid, or private 

insurance, the benefit accrues to the taxpayers or the private insurer.

This Court has applied the collateral source rule to provider write-offs as it 

has to third party payments. In Onusko, a physical therapist voluntarily reduced 

the price of treatment sessions from $534 to $282 per visit for the uninsured 

plaintiff. This Court applied the collateral source rule to the amounts written off 

by the therapist and upheld the trial judge’s decision to allow the plaintiff to 

present the jury with the $534 the therapist normally charged as evidence of the 

reasonable value of the therapy sessions.35 The Court relied on the Restatement 

(Second) of Torts which explains: 

Payments made to or benefits conferred on the injured party from 

other sources are not credited against the tortfeasor’s liability, 

although they cover all or part of the harm for which the tortfeasor is 

liable. . . . This applies to cash gratuities and to the rendering of 

services. Thus the fact that the doctor did not charge for his services . 

. . does not prevent his recovery for the reasonable value of the 

services.36

 

(finding the collateral source rule inapplicable to the provider’s write-off, “since that amount was 

not paid by any collateral source”); Haygood v. De Escabedo, 356 S.W.3d 390, 395 (Tex. 2011) 

(“The benefit of insurance to the insured is the payment of charges to owed to the health care 

provider. An adjustment in the amount of those charges to arrive at the amount owed is a benefit 

to the insurer, one it obtains from the provider for itself, not for the insured.”).

35 Onusko, 880 A.2d at 1024-25.

36 Restatement (Second) of Torts § 920A(2); comment c.(3). 
16

In Mitchell, the defendant sought to limit the plaintiff’s recovery to the amount 

paid by his private health insurer, Blue Cross, arguing that the plaintiff could not 

recover the full amounts of his medical bills unless those amounts were actually 

paid by Blue Cross. We disagreed, observing, 

[W]e recently held in Onusko v. Kerr, the portions of medical 

expenses that health care providers write off constitute “compensation 

or indemnity received by a tort victim from a source collateral to the 

tortfeasor.” The result is the same whether the write-off is generated 

by a cash payment such as Kerr’s or, as in this case, because of a 

reduction attributable to a health insurance contract for which the 

tortfeasor paid no compensation.37

 

37 Mitchell, 883 A.2d at 40 (quoting Acuar, 531 S.E.2d at 320). We disagree with the Superior 

Court’s view that Delaware has adopted a benefit-of-the-bargain approach to the collateral 

source rule. The Superior Court relies on State Farm Mut. Auto Ins. Co. v. Nalbone, 569 A.2d 

71 (Del. 1989), and suggests that our later decision in Mitchell “followed a contract law inspired 

principle” from that case. Stayton, 2014 WL 4782997, at *2. In Nalbone the plaintiff sought to 

extend the tort law collateral source rule to contract cases under Delaware’s no-fault automobile 

insurance statute. This Court rejected that effort, and held that “the policy goals of no-fault 

insurance can best be served by application of principles of contract rather than tort law.” 

Nalbone, 569 A.2d at 75. The Superior Court drew upon Nalbone’s holding that, “[i]f the 

collateral payments are received gratis, then their receipt should bar recovery under the no-fault 

policy.” See Stayton, 2014 WL 4782997, at *2 (“According to [Nalbone], if a plaintiff has paid 

consideration ‘for recovery from a collateral source’ than the double recovery is permissible. If, 

however, the collateral source payments are ‘received gratis’ then such double recovery should 

be barred.”) (quoting Nalbone, 569 A.2d at 75). Applied in the tort context, though, this holding 

is directly contrary to this Court’s decision sixteen years later in Onusko and the comment from 

the Restatement relied upon by us in that case. Onusko, 880 A.2d at 1024 (allowing the plaintiff 

to recover amounts written off by the plaintiff’s healthcare provider, citing comment c(3) to the 

Restatement (Second) of Torts § 920A, regarding gratuities). It is true that this Court discussed 

contracts in Mitchell, but the contracts reviewed in Mitchell were the contracts between the 

Mitchells’ health insurance carrier and the Mitchells’ health care providers. Those contracts 

were relied on to find that the tortfeasor had no claim to benefit from the amounts the Mitchells’ 

health care providers wrote off pursuant to those contracts. This Court observed, “[t]he vast 

majority of courts have held that the collateral source rule prohibits the tortfeasor from reaping 

the benefit of a health insurance contract for which the tortfeasor has paid no compensation.” 

Mitchell, 883 A.2d. at 38 (emphasis added). Our emphasis on denying the tortfeasor a windfall, 

even if it resulted in a double recovery to plaintiffs, was based not on the contractual 

expectations of the plaintiffs, but “on the quasi-punitive nature of tort law liability.” Id. Our
17

We held the plaintiff was entitled to present evidence of the full amount of 

his medical bills without any reduction for the amounts written off by his 

providers because of their contracts with Blue Cross. 

C. Medicare Write-offs

In Onusko and Mitchell, the written off portions of the plaintiffs’ medical 

bills were far more modest in relation to the amounts actually paid than in this 

case. The fact that the written off portion of Stayton’s medical bills is thirteen

times the amount paid gives us pause. It reflects the purchasing power of 

Medicare, given the size of its beneficiary population. It is also reflects the way in 

which the realities of today’s healthcare economy diverge from the traditional 

underpinnings of the collateral source rule. 

Discounting is the rule rather than the exception in healthcare today. 

“[O]nly a small fraction of persons receiving medical services actually pay original 

amounts billed for those services.” 38 The small share that do are typically 

uninsured and yet not without means, a population that is expected to decline as a 

result of the insurance mandate of the Patient Protection and Affordable Care

Act.

39

 

 

case law does not reflect a benefit-of-the-bargain approach and, for the reasons discussed in Part 

III.C infra, it is not an approach we are inclined to adopt. 

38 Thomas R. Ireland, The Concept of Reasonable Value in Recovery of Medical Expenses in 

Personal Injury Torts, 14 J. LEGAL ECON. 87, 88 (2008). 

39 Pub. L. No. 111-148, 124 Stat. 119 (2010). See Ann S. Levin, The Fate of the Collateral 

Source Rule After Healthcare Reform, 60 UCLA L. REV. 736, 742 (2013) (“Because of [the 
18

Whether to apply the collateral source rule to Medicare write-offs is a 

question of first impression for this Court. In our view, it is hard to characterize

the discounts that healthcare providers agree to with third party payers as benefits 

conferred by providers on injured parties. These are not gratuities. Before Stayton 

entered the hospital, the federal government had set Medicare’s reimbursement 

rates for the services she would receive and Crozer Burn Center had agreed to 

accept those rates for the treatment of Medicare patients. The federal government 

acted out of consideration for the taxpayers. Crozer Burn Center presumably acted 

with patient volume in mind. 

It is similarly hard to view these discounts as benefits bargained for by the 

patient. As stated in Haygood v. De Escabedo: 

The benefit of insurance to the insured is the payment of charges 

owed to the health care provider. An adjustment in the amount of 

those charges to arrive at the amount owed is a benefit to the insurer, 

one it obtains from the provider for itself, not for the insured.40

Treating provider write-offs as if they were benefits bargained for by 

insureds theoretically encourages individuals to purchase health insurance. In 

 

Patient Protection and Affordable Care Act’s] individual mandate requirement (effective January 

1, 2014), almost everyone will be insured. Thus defendants will rarely, if ever, encounter 

plaintiffs whose medical bills are paid in full at the billed rate rather than at the lower negotiated 

rate paid by insurance companies.”). 

40 Haygood, 356 S.W.3d at 395. See also Martinez v. Milburn Enterprises, Inc., 233 P.3d 205, 

232-33 (Kan. 2010) (Johnson, J., concurring) (explaining that the purchaser of health insurance 

bargains for, “the reimbursement or payment for needed medical services which might be 

required for any reason, including illnesses, as well as accidents,” and that, “an insured is 

unconcerned about how much it will cost the insurer to fulfill its policy obligation . . . .”). 
19

reality, though, we suspect few individuals decide to purchase health insurance

because they expect to be tort victims and want to assure themselves a double 

recovery. It is far more likely that decisions to purchase or not purchase insurance 

are motivated by consideration of the cost of the premiums and the health coverage 

to be gained in return for those premiums. Since the passage of the Patient Care 

and Affordable Care Act, the penalties to be incurred for failing to purchase 

insurance have undoubtedly played a role as well. 

Though we applied the collateral source rule to provider write-offs in 

Mitchell and Onusko, we decline today to extend that application to amounts that a 

healthcare provider is required to write off for Medicare patients. Instead we 

follow the view that provider write-offs are not payments made to or benefits 

conferred on the injured party. The $3,421,246.94 that Stayton’s healthcare 

providers wrote off was paid by no one. Any benefit that Stayton’s healthcare 

providers conferred in writing off over ninety percent of their collective charges 

was conferred on federal taxpayers, as a consequence of Medicare’s purchasing

power. Thus, the collateral source rule does not apply to the amounts written off 

by Stayton’s healthcare providers. 

D. Reasonable Value of Medical Services

Because we find that the collateral source rule does not apply to Medicare 

write-offs, the question becomes how to determine the reasonable value of medical 
20

services where there are Medicare write-offs. Like the application of the collateral 

source rule to write-offs, states diverge on how to measure reasonable value when 

the amount paid differs from the amount that might be billed for medical services. 

Among states that do not apply the collateral source rule to provider write-offs, 

some treat the determination of the reasonable value of medical services as a jury 

question, as is done where the collateral source rule applies. Other states that do 

not apply the collateral source rule to provider write-offs treat the amount paid as 

dispositive of the reasonable value of the services as a matter of law. 

States that continue to leave the reasonable value determination to the jury, 

despite finding the collateral source rule inapplicable to write-offs, believe that the

“realities of health care finance”

41 today defy categorical rules. Just as the amounts 

healthcare providers charge today are not, in any realistic sense, standard or going 

rates, neither are the amounts paid by particular payers. The rates paid depend on 

the patient volumes the payers can offer providers in exchange for discounts. 

Thus, courts in these states reason, neither the amount charged nor the amount paid

are dispositive of the reasonable value of the services provided.42 Furthermore, 

courts in these states worry that treating the amount paid as dispositive effectively 

creates different classes of plaintiffs based on the sources of their healthcare 

 

41 Stanley, 906 N.E.2d at 857.

42 See id. (“The complexities of health care pricing structures make it difficult to determine 

whether the amount paid, the amount billed, or an amount in between represents the reasonable 

value of medical services.”).
21

coverage.

43

 Given the particularly hard bargain that government drives with 

providers, poor and disabled persons covered by government programs will receive 

the lowest recovery in litigation. To address these concerns, courts in these states 

allow the jury to determine the reasonable value of medical services rendered to 

the plaintiff by considering expert testimony and all other relevant evidence, 

including the billed amount and the amount actually paid for the medical 

services.

44

States that find the amount paid dispositive of the reasonable value as a 

matter of law suggest that the collateral source rule is an exception to the general 

rule of damages. Where the rule does not apply, the determination of damages 

ought to proceed under the principle that a plaintiff is entitled to compensation 

sufficient to make her whole, but no more.45 It contravenes this principle to count 

 

43 See Robinson, 857 N.E.2d at 1200 (“To avoid the creation of separate categories of plaintiffs 

based on individual insurance coverage, we decline to adopt a categorical rule . . . . Due to the 

realities of today’s insurance and reimbursement system, in any given case, [the reasonable 

value] determination is not necessarily the amount of the original bill or the amount paid.”).

44 See Stanley, 906 N.E.2d at 858 (“Given the current state of the health care pricing system . . . 

the jury may well need the amount of the payments, amounts billed by medical service providers, 

and other relevant and admissible evidence to be able to determine the amount of reasonable 

medical expenses. To assist the jury in this regard, a defendant may cross-examine any witness 

called by the plaintiff to establish reasonableness. The defendant may also introduce its own 

witnesses to testify that the billed amounts do not represent the reasonable value of the services. 

Additionally, the defendant may introduce the discounted amounts into evidence to rebut the 

reasonableness of charges introduced by the plaintiff.”)

45 See Haygood, 356 S.W.3d at 394 (“As a general principle, compensatory damages, like 

medical expenses, are intended to make the plaintiff whole for any losses resulting from the 

defendant’s interference with the plaintiff’s rights. The collateral source rule is an exception.”) 

(internal citations omitted).
22

amounts for which no one made payments or incurred liability as damages. 46 

Comment h to the Restatement (Second) of Torts § 911, addressing the 

determination of value for the purposes of tort damages, supports the position that 

the amount paid is dispositive as a matter of law.

47

 

When the plaintiff seeks to recover for expenditures made or liability 

incurred to third parties for services rendered, normally the amount 

recovered is the reasonable value of the services rather than the 

amount paid or charged. If, however, the injured person paid less than 

the exchange rate, he can recover no more than the amount paid, 

except when the low rate was intended as a gift to him.48

The fact that Stayton’s healthcare providers collectively accepted less than a 

tenth of the amount they might have billed, and did so not as a gratuitous exception 

but as part of an agreement with a high-volume payer, makes it difficult to 

conclude that the billed amounts represent the reasonable value of the medical 

 

46 See Howell, 257 P.3d at 1138 (“To be recoverable as expenses, monies must generally have 

been expended, or at least incurred . . . .”) (internal quotation omitted); Moorhead, 765 A.2d at 

789 (“The expenses for which a plaintiff may recover must be such as have been actually paid, or 

such as, in the judgment of the jury, are reasonably necessary to be incurred.”) (internal 

quotation omitted). 

47 A number of courts have challenged the relevance to these cases of comment h to § 911 

because by its terms it applies “when the plaintiff seeks to recover for expenditures made or 

liability to third parties for services rendered” and plaintiffs seeking recovery for medical 

services damages are not seeking “to recover for expenditures made or liability to third parties 

for services rendered.” Bynum, 101 P.3d at 1159; Wills, 892 N.E.2d at 1027-28. To the extent 

plaintiffs seeking to recover medical services damages have not made expenditures or incurred 

liability to their medical services providers, it is only due to collateral source payments. Even 

courts that do not apply the collateral source rule to provider write-offs agree that a plaintiff is 

entitled to recover as if such collateral source payments had not been made, in which case the 

plaintiff would have incurred a liability to the providers. In any case, a collateral source payer 

often has a subrogation right, standing in the plaintiff’s shoes, to recover for the payments it 

made to the providers on the plaintiff’s behalf. In either case, recovery is had as if payments 

were made or a liability incurred. 

48 Restatement (Second) of Torts § 911, cmt. h.
23

services. On the other hand, the fact that Stayton’s providers agreed up front to 

provide their services to Medicare patients in exchange for the amount Medicare 

pays for those services suggests that the amount paid might be in the range of what 

should be considered reasonable.

There are several shortcomings to the jury approach. Evidence of the 

amount billed and the amount paid are both relevant to the question of the 

reasonable value of medical services. But introducing the amount paid into 

evidence informs jurors that the plaintiff’s medical expenses have been at least 

partially paid for by a collateral source. This creates a risk that jurors will absolve 

the defendant of liability for that amount paid by the collateral source. This 

reduction in the plaintiff’s recovery, for a payment from a third party payer, is 

disallowed by the collateral source rule, even if a reduction for a provider write-off 

is not. Indeed, preventing reduction in the plaintiff’s recovery for a collateral 

source payment is the prototypical application of the rule. Thus, in an effort to 

strike a balance in connection with write-offs to which the collateral source rule 

does not apply, the jury approach undercuts the rule in connection with third party 

payments to which the rule indisputably does apply. Finally there is the cost to the 

system of requiring multiple experts to testify about the reasonable value of the 

medical services.
24

On balance, we believe the better course is to treat the amount paid by 

Medicare as dispositive of the reasonable value of healthcare provider services. 

Delaware has followed the Restatement (Second) of Torts in its application of the 

collateral source rule.49 The fact that treating the amount paid as dispositive is 

consistent with § 911 of the Restatement gives us confidence that the approach we 

adopt today is not only administrable but fully consistent with the common law tort 

principles underlying Delaware’s collateral source rule. 

The collateral source rule is an exception to the general principles governing 

compensatory damages. That exception does not apply here, so recovery, if it is 

had, should be had in accordance with the ordinarily damage principles. In 

Delaware “a plaintiff is entitled to compensation sufficient to make him whole, but 

no more.”50 In other words, the remedy for the tort should put the plaintiff as close 

as possible to the same position as she was in before the injury. Stayton’s claim 

for medical expenses is a claim for economic loss, which is defined as “a financial 

loss.”51 It is undisputed that Stayton will not be obligated to pay for medical 

expenses above the amount paid by Medicare, and thus, an award of $262,550.17 

would fully compensate her for any economic loss from her medical treatment. 

This Court has also held that a plaintiff cannot recover speculative or conjectural 

 

49 See Mitchell, 883 A.2d at 38-39 (citing the Restatement (Second) of Torts § 920A and § 920A, 

cmt. b); Onusko, 880 A.2d at 1024-25 (citing the Restatement (Second) of Torts § 920A and § 

920A, cmt. c(3)). 

50 Mitchell, 883 A.2d at 38 (internal quotations omitted). 

51 Restatement (Third) of Torts § 1 TD No. 1 (2012).
25

damages because the law “refuses to allow a plaintiff damages relating to the 

future consequences of a tortious injury unless the proofs establish with reasonable 

probability the nature and extent of those consequences.”52 Here, because Stayton 

has not paid and will not be required to pay medical expenses above the amount 

paid by Medicare, her claim for the written-off portion of her medical bill seeks 

compensation for harm that will never occur, which is even less substantial than 

speculative harm.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Superior Court that 

the collateral source rule does not apply to Medicare write-offs. Stayton’s 

heathcare provider expenses are limited to the amount paid by CMS for her 

medical care. 

 

52 Laskowski v. Wallis, 205 A.2d 825, 826 (Del. 1964). 
26

STRINE, Chief Justice, concurring:

I join the excellent opinion of the Court, and write separately only to note 

that this decision illustrates the wisdom of taking a Hippocratic approach to 

applying long-standing doctrines that have been extended beyond what was 

necessary to accomplish their original goal. In other words, by taking a “this far, 

no further” approach to the collateral source rule, the Court adheres to the 

principle, “first do no harm.”

The Court respects the reality that Harbor Healthcare has not asked us to 

narrow the reach of the collateral source rule, but only to refuse to extend it to this 

context. But the case before us calls into question the wisdom of applying the 

collateral source rule—itself an exception to the general rule of damages that a 

plaintiff is entitled to be made whole and nothing more53—in its current form, in an 

era where we are closer to achieving universal healthcare, and where rising 

healthcare costs are reducing access to care and harming our nation’s economic 

health. For these reasons, other courts have restricted and even eliminated the 

collateral source rule.54 In both a situation like the current case involving Medicare 

 

53 See 25 C.J.S. Damages § 189 (2015) (“The collateral-source rule is an exception to the 

general rule of damages preventing a double recovery by an injured party, or in other words, it is 

an exception to the general rule that in a tort action, the measure of damages is that that will 

compensate and make the plaintiff whole.”).

54 E.g., Bryce Benjet, A Review of State Law Modifying the Collateral Source Rule: Seeking 

Greater Fairness in Economic Damages Awards, 76 DEF. COUNS. J. 210 (2009) (noting that 

“although the [collateral source] rule is entrenched in the common law, there is a growing trend 

to restrict, if not abolish, the rule,” and citing cases); Gary T. Schwartz, A National Health Care 
27

write-offs, and also a related situation where a hospital or other provider

voluntarily gives free or discounted medical care, any recovery from the tortfeasor 

on the theory that the provider accepted less than the reasonable value of the 

plaintiff’s medical services should go to that provider, and not to the plaintiff who 

did not pay any out-of-pocket costs, and only if the provider itself desires to 

recover the supposed shortfall. 

As the Court notes, the collateral source rule emerged to “balance between 

two competing principles of tort law: (1) a plaintiff is entitled to compensation 

sufficient to make him whole, but no more; and (2) a defendant is liable for all 

damages that proximately result from his wrong.”55 Thus, when properly applied, 

the rule ensures that the party whose negligence caused the injury bears all of the 

resulting costs, which provides a useful financial incentive for the exercise of due 

 

Program: What Its Effect Would Be on American Tort Law and Malpractice Law, 79 CORNELL 

L. REV. 1339, 1341 (1994) (“[T]he collateral source rule has by now been abolished in several 

states.”); Michael K. Beard, The Impact of Changes in Health Care Provider Reimbursement 

Systems on the Recovery of Damages for Medical Expenses in Personal Injury Suits, 21 AM. J.

TRIAL ADVOC. 453, 476-77 (1998) (“The collateral source rule and its policy justifications were 

widely accepted before health insurance became prevalent. Therefore, it was foreordained that 

the rule would be applied to all forms of health insurance. . . . Only with the tort reform 

legislation of the last twenty years has there been any substantial modifications to the rule . . . ”); 

3 Litigating Tort Cases § 30:5 (“Several states have abolished or modified the collateral source 

rule in medical malpractice cases.”); cf. John G. Fleming, The Collateral Source Rule and Loss 

Allocation in Tort Law, 54 CALIF. L. REV. 1478, 1478-82 (1966) (noting that the rationale for the 

collateral source rule when adopted—shifting losses to more affluent parties—has become less 

compelling in a society that prioritizes social programs over tort recovery as a mechanism for 

loss shifting); Rebecca Levenson, Comment, Allocating the Costs of Harm to Where They Are 

Due: Modifying the Collateral Source Rule After Healthcare Reform, 160 U. PA. L. REV. 921 

(2012) (arguing that the collateral source rule should be limited in the wake of the individual 

mandate under the Affordable Care Act).

55 Mitchell v. Halder, 883 A.2d 32, 38 (Del. 2006).
28

care by defendants like Harbor Healthcare.56 It is especially important to put the 

cost of care for preventable medical injuries on the tortfeasor, not because of a 

desire to be generous to health insurers, even governmental ones. The reason is 

that when health insurers bear excess costs because they must pay the costs of care 

resulting from preventable injuries, they will charge higher rates, increasing 

societal healthcare costs, and potentially inhibiting the receipt of necessary care by 

the economically vulnerable.

Historically, courts have applied the collateral source rule to allow a plaintiff 

to recover the full cost of her medical bill from the tortfeasor even when her 

insurance company paid for all or a portion of it.57 In such cases, subrogation 

rights have often operated to eliminate any “double recovery” for the plaintiff, and 

thus avoided the problem of short-changing the insurer.

In this case, by contrast, if we were to apply the collateral source rule to 

allow Stayton to recover the full amount of her medical bill, it would not help the 

real party that Stayton contends was short-changed: Crozer Burn Center. Stayton’s 

lawyer is not acting as the champion of a hospital that he alleges did not receive 

fair reimbursement for providing critical care to his client, but is instead seeking to 

have his client pocket compensation for hospital charges that she was never 

 

56 See 25 C.J.S. Damages § 189 (2015) (“The collateral-source rule, like other tort principles, 

also aims at deterring a tortfeasor’s negligent conduct, and accordingly, it makes the tortfeasor 

fully responsible for damages caused as a result of tortious conduct.”). 

57 See, e.g., Mitchell, 883 A.2d at 38.
29

obligated to pay, charges that are thirteen times greater than the amount that 

Medicare actually paid on his client’s behalf. Likewise, if the collateral source rule 

was employed to allow a plaintiff such as Stayton to recover the full cost of 

medical treatment she received for free, rather than requiring her recovery to go to 

the hospital, the rule would perversely provide a windfall for the plaintiff, rather 

than fairly allocate an award of expenses to the party that actually incurred them.

It makes sense not only as a matter of good incentives, but of fundamental 

fairness, to ensure that a provider that gives charitable or discounted care to help a 

tort victim who cannot pay for the care is able to be topped up to market when the 

tortfeasor is held accountable for the tort. But why the plaintiff should get to 

pocket the difference for herself as part of her recovery, leaving the provider who 

did the good deed with a shortfall, measured precisely by the extent of the 

plaintiff’s own windfall, is harder to understand.

58

 That seems a poor repayment to 

the provider for its charity.

 

58 In Onusko v. Kerr, for example, a physical therapist lowered his rates for an uninsured patient 

who was injured in a motorcycle crash. The patient was then allowed to recover the full market 

rate from the tortfeasor under the collateral source rule, with no apparent obligation to make the 

physical therapist whole for the amount that he should have received. See Onusko v. Kerr, 880 

A.2d 1022, 1024-25 (Del. 2005) (quoting the Restatement (Second) of Torts § 920A(2) and 

comment c.(3) for the proposition that “[p]ayments made to or benefits conferred on the injured 

party from other sources are not credited against the tortfeasor’s liability, although they cover all 

or part of the harm for which the tortfeasor is liable. . . . This applies to cash gratuities and to the 

rendering of services. Thus the fact that the doctor did not charge for his services . . . does not 

prevent [the plaintiff’s] recovery for the reasonable value of the services.”). 
30

Of course, the common law might determine that a plaintiff who acts as an 

enforcement agent for herself and her healthcare provider should receive an award 

of attorneys’ fees and costs to ensure that the net recovery of her healthcare costs is 

not reduced by any enforcement costs. Even under that approach, windfalls should 

be avoided, and there should be no double recovery of enforcement costs or any 

incentives created to run them up.59 In considering issues like this, it must be 

remembered that plaintiffs like Stayton may also bring claims for non-economic 

damages, such as damages for pain and suffering, and for economic damages 

unrelated to healthcare costs, such as lost income.

60

 But permitting a plaintiff to 

recover more than her financial loss as damages for theoretical expenses that she or 

her insurer will never be obligated to pay serves no useful purpose, and instead 

creates rents for lawyers, raises costs for employers in the form of higher liability 

insurance premiums, and bestows windfalls on certain plaintiffs, not for rational 

reasons, but for happenstance. 

 

59 The rare case where a double recovery should be permitted is where an insured person has 

contracted for it specifically. In that case, the plaintiff does not really receive a double recovery 

because the insured party has contracted and paid for the right to recover. Those of us who went 

to school some decades ago might recall that students were often offered the chance to buy 

policies that provided for certain payments if a body part suffered specified damage for any 

reason (for example, $10,000 in the event of a loss of a pinkie). If a parent bought two separate 

policies of that kind for their child-student, and the student lost a pinkie, both policies would 

have to pay. That would not involve a double recovery; it would be the exact recovery that the 

insured party had paid for. See, e.g., Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61, 66 (Cal. 

1970) (noting that applying the collateral source rule ensures “that a person who has invested 

years of insurance premiums to assure his medical care . . . receives the benefits of his thrift”).

60 See 3 Stein on Personal Injury Damages Treatise § 22:7 (3d ed.). 
31

Allowing a plaintiff like Stayton to recover the full value of the hospital 

services Crozer provided at a supposed discount would also do nothing to reduce

the corresponding harm to social welfare that results from Crozer’s increased costs, 

incurred because of Harbor Health’s alleged negligence. When a hospital has to 

treat additional patients because a tortfeasor failed to exercise due care, its capacity 

to treat other patients becomes more limited. If the hospital also generously

discounts the cost of the services it provides because, for example, the patient was 

uninsured and unable to pay the full cost of treatment, it will incur even greater 

costs. Ensuring that any tort recovery for the reasonable cost of treatment goes to 

the hospital that provided the medical care at a lower-than-market rate ameliorates 

the overall loss to social welfare due to the tortfeasor’s negligence. Moreover, 

requiring the tortfeasor to bear the full cost of the harm imposed on the victim, the 

victim’s insurer, and the victim’s healthcare providers, and no more, sets the right 

incentive for deterrence.61 

Because the Court’s well-reasoned opinion is directionally sensitive to these 

concerns, I gladly join it in full.

 

61 See, e.g., A. Mitchell Polinsky, Steven Shavell, Punitive Damages: An Economic Analysis, 

111 HARV. L. REV. 869 (1998) (“The central point that we want to explain here is that, if a 

defendant will definitely be found liable for the harm for which he is responsible, the proper 

magnitude of damages is equal to the harm the defendant has caused. If damages are either 

lower or higher than the harm, various socially undesirable consequences will result . . . .”).