February 15, 2017

US - Death knell for the Obamacare defense

Alternative strategies for reducing personal injury damages in the era of Trump

Until Congress began taking steps to dismantle the Affordable Care Act (“ACA”), the health care law enacted in 2010 potentially afforded defendants involved in lawsuits a novel way to reduce claims for future medical expenses. The “Obamacare defense,” in its simplest form, argued that judges and juries should not award plaintiffs large sums of money for future medical damages because Obamacare would help pay for a plaintiff’s future care. Because repealing and replacing Obamacare is a priority for the new Republican administration, however, defendants should now consider alternative strategies.

President Trump's vigorous opposition to Obamacare casts doubt on the continued viability of using it as a defense. While it remains uncertain which elements of the ACA -- if any -- will be preserved, the president has signed an executive order allowing federal agencies to unravel the ACA, and the new Republican-controlled Congress has already begun the legislative process of repealing parts of the law, using a complex process known as budget reconciliation. With repeal likely, the Obamacare defense has likely lost its appeal for juries considering the appropriate values of life care plans.

These developments do not mean that all hope is lost for defendants in search of new and creative strategies to reduce damage awards in personal injury lawsuits. As this article will discuss, creative options are still on the table, and it is even possible that some form of a modified Obamacare defense may survive.