22.21A Damages – Medicare & Medicaid Benefits

Medicare / Medicaid Benefits

You have heard testimony about medical compensation that has been paid to [plaintiff’s name].  Delaware law requires that you must consider such evidence in the determination of any damages that you may award.  Although [__some / all__] of the expenses that [he/she] claims in this lawsuit have been paid through [__Medicare / Medicaid / Social Security disability payments__], [plaintiff’s name] has a legal obligation to repay [__state the portion to be repaid__] of this compensation from any money that you might award in this case.  On the other hand, if [he/she] does not recover in this case, there is no obligation for [plaintiff’s name] to reimburse.

{Comment: Because an evidentiary foundation must first be established as to the extent of the Medicare/Medicaid payments actually made and for the portion of that amount that is statutorily subject to a lien, a motion in limine may be necessary to resolve whether use of this instruction is appropriate given the facts of the case.}


18 Del. C. ‘ 6862; 42 U.S.C. ‘ 1395y(b)(2); 42 C.F.R. ” 411.24(b)-(i), 411.25, 411.26 (1998); Nanticoke Mem. Hosp. v. Uhde, Del. Supr., 498 A.2d 1071 (1985)(purpose of ‘ 6862 is to prevent collection of a loss from a collateral public source and then a collection for the same loss from the party or hospital being sued); Myer v. Dyer, Del. Super., 643 A.2d 1382, 1388 (1994)(reviewing collateral source rule as applied to medical negligence claims).

Credit: Delaware Superior Court