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Filing # 168665465 E-Filed 03/14/2023 10:59:51 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
MILAGROS VIERA VERA,
Plaintiff, CASE NO.: 2021-CA-002570
v.
RACETRAC PETROLEUM, INC.,
Defendant.
_____________________________________/
DEFENDANT, RACETRAC PETROLUEM, INC.’S, MOTION IN LIMINE
REGARDING PLAINTIFF’S PAST MEDICAL EXPENSES AMOUNT
Defendant, RACETRAC PETROLUEM, INC., by and through the undersigned counsel
and pursuant to Florida Rule of Civil Procedure 1.510, respectfully moves in limine to preclude
the Plaintiff, who was at all times during and following the alleged incident, Medicare eligible,
from mentioning or introducing into evidence an amount of past medical expenses greater than the
amount she would have been responsible for had her bills been submitted to Medicare, and states
as follows:
INTRODUCTION & SUMMARY
1. Plaintiff seeks damages for past medical expenses allegedly arising from a trip and fall
accident that took place on June 26, 2020 in Osceola County, Florida.
2. Plaintiff is Medicare eligible, but her health care providers did not submit her bills to
Medicare as required by federal law and did not comply with the Federal Medicare
Program, 42 C.F.R. § 405. et seq., to opt out of such legal requirement.
3. Had her bills been submitted to Medicare, as required by law, the amount originally
charged would have been reduced to the prevailing Medicare reimbursement rate.
4. The Medicare reimbursement rate would be the highest amount Plaintiff could owe, and
by definition, recover, for her past medical expenses.
5. Based on noncompliance with federal law, Plaintiff should be prohibited from introducing
the full amount of medical bills from her providers, and instead, must only be allowed to
introduce medical bills at the operative Medicare reimbursement rate.
FACTUAL AND PROCEDURAL BACKGROUND
6. This is a personal injury action arising from an alleged trip and fall accident on June 26,
2020.
7. Plaintiff now seeks economic damages, including the following in past medical expenses
from treatment with her medical providers.
8. Upon information and belief, Plaintiff signed Letter of Protection/Assignment of Benefits
with the following providers: Advanced Diagnostic Group, Park Place Surgery Center,
Stand Up MRI, First Health Chiropractic, Cora Physical Therapy, Millenia Surgery Center.
9. Plaintiff is eligible for Medicare and is a Medicare recipient.
10. Plaintiff did not submit her medical bills to Medicare.
11. Defendant, therefore, moves in limine to preclude the Plaintiff from arguing or offering
into evidence any amount of her past medical expenses above the Medicare allowed
amounts.
MEMORANDUM OF LAW
I. EVIDENCE OF PAST MEDICAL EXPENSES IN EXCESS OF MEDICARE
REIMBURSEMEN RATES SHOULD BE EXCLUDED.
To prevail on a cause of action for negligence, a plaintiff must prove (1) a duty, (2) a breach,
(3) proximate causation, and (4) actual loss or damage. Clay Elec. Coop., Inc. v. Johnson, 873 So.
2d 1182, 1185 (Fla. 2003). As to the fourth element, a Plaintiff can recover compensatory or actual
damages for the loss (those designed to make the plaintiff whole) but cannot recover compensatory
damages in excess of the amount that represents that actual loss sustained. MCI WorldCom
Network Sen.'s., v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008). Damages for past medical
expenses are economic and compensatory in nature. Coop. Leasing. Inc. v. Johnson, 872 So. 2d
956, 957-58 (Fla. 2d DCA 2004); Garcia v. Arraga, 872 So. 2d 266, 272 (Fla. 4th DCA 2004).
It is the plaintiff's burden to present evidence proving a definite amount of economic damages,
including those for past medical treatment. The Fourth District has explained:
It has long been accepted in Florida that a party claiming economic losses must
produce evidence justifying a definite amount. Economic damages may not be
founded on jury speculation or guesswork and must rest on some reasonable factual
basis. Plaintiff has the burden of presenting evidence justifying a specific and
definite amount of economic damages. Where there is no evidence to justify any
amount on a claim for economic damages, Defendant is entitled to judgment on the
claim.
United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla. 4th DCA 2008) (internal citations
omitted). See also Fla. Ventilated Awning Co. v. Dickson, 67 So. 2d 215 (Fla. 1953) (insufficient
predicate on which a definite sum could be awarded); Rimmeir v. Dickson, 107 So. 2d 372, 374
(Fla. 1958) (same).
A. THE SUPREME COURT OF FLORIDA SPOKE ON APPROPRIATE
COMPENSATORY DAMAGES WITH REGARD TO PAST MEDICAL BILLS.
Plaintiff, a Medicare beneficiary/recipient, is not entitled to put forth evidence of the gross
amount of charges from healthcare providers based upon the Court’s holding in Dial v. Calusa
Palms Master Ass’n, Inc., 337 So. 3d 1229 (Fla. 2022). The Dial case arose from a negligence
action following a trip and fall on the Defendant’s property. Id at 1230. “The Trial Court in the
matter granted a Motion in Limine that precluded Dial from introducing as evidence the gross
amount of her past medical expenses and limited her to introducing only the discounted amounts
paid by Medicare.” Id. The Second District affirmed the trial court’s ruling, as did the Supreme
Court by stating, “the appropriate measure of compensatory damages for past medical expenses
when a Plaintiff has received Medicare benefits does not include the difference between the
amount that the Medicare providers agree to accept and the total amount of the plaintiff’s medical
bills.” Id at 691. Additionally, the Court in Dial quoted Goble v. Frohman, 848 So. 2d 406, 410
(Fla. 2d DCA 2003) which held that “to allow for the recovery of this full amount, under the guise
of ‘compensatory damages,’ would allow for the recovery of ‘phantom damages.’” Id.
As such, Plaintiff should not be able to mention or introduce into evidence past medical
expenses over the amount she would be responsible for, had her medical providers submitted her
bills to Medicare as required by law, as allowing for inflated amounts would be permitting the
Plaintiff to recover “phantom damages.”
B. FEDERAL MEDICARE PROGRAM REOUIREMENTS.
Medicare was enacted as Title XVIII of the Social Security act and titled, "Health Insurance
for the Aged and Disabled." 42 U.S.C. § 1395, et seq. It is commonly known as the federal health
insurance program for people who are 65 or older. The Social Security Act and Section
1848(g)(4)(A) stated in pertinent part:
For services furnished on or after September 1, 1990, within 1 year after the date of providing
a service for which payment is made under this part on a reasonable charge or fee schedule basis,
a physician, supplier, or other person (or an employer or facility in the cases described in section
1842(b)(6)(A)
(i) SHALL complete and submit a claim for such service on a standard claim form
specified by the Secretary to the carrier on behalf of a beneficiary; and
(ii) May not impose any charge relating to completing and submitting such a form.
42 U.S.C. Section 1395w-4(g)(4)(A)(i-ii)(emphasis added).
Under the Act, a healthcare provider must submit the bill to Medicare within one year of
the service provided. “If the physician fails to submit a claim to the Medicare carrier on behalf of
the beneficiary when one is required to be submitted the Secretary may impose sanctions.” Stewart
v. Sullivan, 816 F. Supp. 281, 284 (D.N.J 1992). See 42 U.S.C. 1395w-4(g)(4)(B)(i-ii).
The Centers for Medicare & Medicaid Services (CMS) administers the Medicare Program.
With regard to medical charges to beneficiaries for services covered by Medicare, “If the provider
bills Medicare, the provider must accept the Medicare approved amount as payment in full and
may charge beneficiaries only deductibles and coinsurance.”
Nevertheless, 42 U.S.C. 1395a allows Medicare beneficiaries to enter into private contracts
with their health care providers under certain limited circumstances, which allows the healthcare
providers not to bill Medicare. See also 42 C.F.R. § 405.425. This is to ensure that beneficiaries
have the free choice of care. Specifically, Section 1395a(b)(1) states in pertinent part:
Subject to the provisions of this subsection, nothing in this title shall prohibit a physician or
practitioner from entering into a private contract with a Medicare beneficiary for any item or
service —
(A) For which no claim for payment is to be submitted under this title, and
(B) For which the physician or practitioner receives —
(i) No reimbursement under this title directly or on a capitated basis, and
(ii) Receives no amount for such item or service from an organization which receives
reimbursement for such item or service under this title directly or on a capitated basis.
42 U.S.C. §1395a(b).
Furthermore, private contracts are authorized only if the physician signs an affidavit which
states that he or she:
Will not submit any claim under this title for any item or service provided to any
Medicare beneficiary (and will not receive any [Medicare] reimbursement for any
such items of service) during the 2-year period beginning on the date the affidavit
is signed.
42 U.S.C. §1395a(b)(3)(B)(ii). This means that a doctor who enters into a private contract with a
single patient is barred from submitting a claim to Medicare on behalf of any patient for a two-
year period.
These private contracts are only permitted where:
(a) A physician or practitioner may enter into one or more private contracts with Medicare
beneficiaries for the purpose of furnishing items or services that would otherwise be
covered by Medicare, provided the conditions of this subpart are met.
(b) A physician or practitioner who enters into at least one private contract with a
Medicare beneficiary under the conditions of this subpart, and who submits one or more
affidavits in accordance with this subpart, opts out of Medicare for the opt-out period
described in § 405.400 unless the opt-out is terminated early according to § 405.445.
(c) Both the private contracts described in paragraph (a) of this section and the
physician's or practitioner's opt-out described in paragraph (b) of this section are null and
void if the physician or practitioner fails to properly opt-out in accordance with the
conditions of this subpart.
(d) Both the private contracts described in paragraph (a) of this section and the
physician's or practitioner's opt-out described in paragraph (b) of this section are null and
void for the remainder of the opt-out period if the physician or practitioner fails to remain
in compliance with the conditions of this subpart during the opt-out period.
(e) Services furnished under private contracts meeting the requirements of this subpart
are not covered services under Medicare, and no Medicare payment will be made for such
services either directly or indirectly, except as permitted in accordance with § 405.435(c).
42 C.F.R. § 405.405.
The following conditions must be met for a health care provider to properly opt-out of
Medicare:
a) Each private contract between a physician or a practitioner and a Medicare beneficiary that
is entered into prior to the submission of the affidavit described in paragraph (b) of this
section must meet the specifications of § 405.415.
b) The physician or practitioner must submit an affidavit that meets the specifications of §
405.420 to each Medicare Administrative Contractor with which he or she would file
claims absent the opt-out.
c) A nonparticipating physician or a practitioner may opt-out of Medicare at any time in
accordance with the following:
(1)(c)(1) The initial 2-year opt-out period begins the date the affidavit meeting the
requirements of § 405.420 is signed, provided the affidavit is filed within 10 days after he or
she signs his or her first private contract with a Medicare beneficiary.
(2)(c)(2) If the physician or practitioner does not timely file the opt-out affidavit(s) as
specified in the previous paragraph, the initial 2-year opt-out period begins when the last such
affidavit is filed. Any private contract entered into before the last required affidavit is filed
becomes effective upon the filing of the last required affidavit, and the furnishing of any items
or services to a Medicare beneficiary under such contract before the last required affidavit is
filed is subject to standard Medicare rules.
d) A participating physician may properly opt-out of Medicare at the beginning of any calendar
quarter, provided that the affidavit described in § 405.420 is submitted to the participating
physician's Medicare Administrative Contractors at least 30 days before the beginning of the
selected calendar quarter. A private contract entered into before the beginning of the selected
calendar quarter becomes effective at the beginning of the selected calendar quarter, and the
furnishing of any items or services to a Medicare beneficiary under such contract before the
beginning of the selected calendar quarter is subject to standard Medicare rules.
42 C.F.R. § 405.410.
The many requirements for the private contract and the opt-out Affidavit are specified in
§§ 405.415 and 405.420, respectively. 42 C.F.R. §§ 405.415, 405.420. Critically, private contracts
are null and void absent strict compliance with these numerous requirements. 42 C.F.R. §
405.405(c), (d); 42 C.F.R. § 405.430. In such circumstances, the health care provider has not
effectively opted-out of the Medicare program as it concerns a particular patient. Id.
The DC Circuit Court of Appeals held that this provision and the restriction it imposes on
doctors applies only to contracts made for services which Medicare would not pay. The Court also
notes that only 300 doctors nationwide have entered into these types of private contracts and thus
been subject to the two-year restriction. United Seniors Ass'n v. Shalala, 182 F.3d 965 (D.C. Cir.
1999). There is no evidence that any of Plaintiff s health care providers properly opted-out of their
requirement to submit Plaintiff's bills to Medicare.
C. PLAINTIFF'S HEALTH CARE PROVIDERS DID NOT SUBMIT PLAINTIFF'S
BILLS TO MEDICARE, DID NOT EFFECTIVELY OPT-OUT OF MEDICARE
AND ARE, THEREFORE, NOT ENTITLED TO COLLECT ANY AMOUNTS IN
MEDICAL EXPENSES OVER THE MEDICARE REIMBURSEMENT RATE.
Plaintiff was and is Medicare eligible and a Medicare beneficiary. No Medicare claims
were made on Plaintiff’s behalf. Plaintiff did enter into letters of protections and/or assignment of
benefits with the providers mentioned. These letters of protection/assignment of benefits seeks to
make the Plaintiff liable for charges in great excess over what Medicare would have reimbursed
for Plaintiff’s medical services had her bills been properly submitted to Medicare.
However, the letters of protection do not comply with the requirements for such private
contracts under 42 C.F.R. § 405.415. Indeed, none of the letters of protection, for example (a)
indicate whether the practitioner is excluded from Medicare; (b) state that the beneficiary
understands that Medicare limits do not apply; (c) state that the beneficiary agrees not to submit a
claim to Medicare; (d) state that the beneficiary understands that Medicare payments will not be
made for services provides; state that the beneficiary knowns that he had the right to obtain
Medicare-covered items; (e) mention an effective or excepted expiration date of the current 2-year
opt-out period; (f) mention Medigap plans; or (g) are even signed by the physician or practitioner.
42 C.F.R. 405.415(b), (d), (e), (f), (g), (h), (j), (m). Therefore, the letters of protection are null and
void. 42 C.F.R. § 405.430 (reflecting that private contracts between practitioners and the Medicare
beneficiary patient "are deemed null and void" if they fail to comply with the requirements under
§§ 405.415 and 405.420).
Furthermore, no opt-out Affidavits accompanied these Letters of Protection. Again, the
practitioner can only enter into a private contract with a Medicare eligible patient if the practitioner
properly opts-out of Medicare. 42 C.F.R. § 405.410. There are ten requirements for a proper opt-
out affidavit, the most obvious of which is that it be in writing and signed by the practitioner. 42
C.F.R. § 405.410.
Therefore, Plaintiff s health care providers (1) did not legally opt-out of Medicare, (2) were
required to submit Plaintiff's bills to Medicare as an eligible patient; and (3) were not entitled to
collect anything greater than the Medicare rates for the services provided to the Plaintiff in full
satisfaction of the original charges. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547,
549 (Fla. 4th DCA 2003) ("[P]ayment by Medicare requires the provider to whom payment is
made to accept such amount in full satisfaction of the total charge even though the amount charged
exceeds the amount paid by Medicare."). Neither the medical providers, nor Plaintiff and her
attorneys, should be permitted to benefit from circumventing the plain requirements of federal
statutory and regulatory law.
D. PLAINTIFF CAN ONLY PRESENT TO THE JURY THE AMOUNT THAT
MEDICARE WOULD HAVE CHARGED HAD HER BILLS BEEN SUBMITTED
TO MEDICARE AS REQUIRED BY LAW.
Original charges by health care providers are irrelevant and inadmissible when the provider
accepts payment from Medicare in full satisfaction of the charge. See Thyssenkrupp Elevator Corp.
v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003); Cooperative Leasing. Inc. v. Johnson, 872 So. 2d
956 (Fla. 2d DCA 2004) (holding it was error to allow plaintiff to admit into evidence bills for
medical expenses for which she never incurred liability and in allowing her to recover damages in
excess of payments made by Medicare); Miami-Dade Cty v. La ureiro, 894 So. 2d 268 (Fla. 3d
DCA 2005); Boyd v. National Mut. Fire Ins. Co., 890 So. 2d 1240 (Fla. 4th DCA 2005) (trial court
properly limited evidence regarding medical bills paid by Medicare to the amounts actually paid
to the medical providers pursuant to the Medicare fee schedule).
The undiscounted excess medical charges cannot be admitted in to evidence because it
would result in a windfall to the Plaintiff by permitting recovery for past medical expenses for
which he was never and will never be liable for. Thyssenkrupp, 868 So. 2d at 550 (charges in
excess of the amount discharged by Medicare is irrelevant and inadmissible on the issue of
damages suffered by a plaintiff because the plaintiff is never liable for the difference). As
Cooperative Leasing, Inc. succinctly stated:
The issue in this case is the appropriate measure of compensatory damages
for past medical expenses. "The objective of compensatory damages is to make the
injured party whole to the extent that it is possible to measure his injury in terms of
money." Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla. 1981).
"The primary basis for an award of damages is compensation." Fisher v. City of
Miami, 172 So. 2d 455, 457 (Fla. 1965). In this case, Johnson sought to collect the
"additional value of medical services reasonably made necessary" by the appellants.
We conclude, however, that Johnson was not entitled to recover for medical
expenses beyond those paid by Medicare because she never had any liability for
those expenses and would have been made whole by an award limited to the amount
that Medicare paid to her medical providers.
Coop. Leasing, Inc., 872 So. 2d at 957-58.
Accordingly, the maximum amount Plaintiff would ever be responsible for - if her medical
providers submitted the medical bills to Medicare as required by law, should have been the
Medicare limits. Any amounts provided for above the Medicare limits cannot legally constitute
past medical expenses of the Plaintiff, and she must not be allowed to mention or introduce
evidence as to those higher amounts.
D. PLAINTIFF HAD THE ABILITY TO SUBMIT HER MEDICAL EXPENSES TO
MEDICARE TO MITIGATE HER DAMAGES.
Failure to submit Plaintiffs medical expenses to Medicare does not fall solely on her
medical providers. Plaintiff knew she was Medicare eligible at the time she treated for the subject
accident, knew that her providers never asked for her Medicare card, and still chose not to submit
her bills to Medicare.
A Medicare beneficiary can submit his/her bills to Medicare if his/her physicians do not.
This represents a failure to mitigate damages as a matter of law - an affirmative defense raised by
Defendants.
[T]he term "mitigation of damages" has no single meaning and is used by
the courts to describe several different problems in the law of damages, the term as
used herein encompasses those facts which tend to show that the conceded or
assumed cause of action does not entitle the plaintiff to as large an amount of
damages as would otherwise be recoverable. Specifically, the type of problem
litigated herein involves the doctrine of avoidable consequences, or efforts to
minimize damages, where the plaintiff reasonably could have avoided a part or all
of the consequences of the defendant's wrongful act.
Parker v. Montgomery, 529 So. 2d 1145, 1147 (Fla. 1st DCA 1988). "Accordingly, if some of the
damages incurred could have reasonably been avoided by the plaintiff, [this] doctrine prevents
those damages from being added to the amount of damages recoverable." Id. See also Sys.
Components Corp v. Fla. DOT, 14 So. 3d 967, 982 (Fla. 2009).
WHEREFORE, Defendant, RACETRAC PETROLUEM, INC., respectfully requests this
Court enter partial summary judgment limiting any amount awarded for past medical expenses to
the Medicare allowable amounts.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of March, 2023, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system to all counsel of record on the
service list below.
HALL BOOTH SMITH, P.C.
Attorneys for Defendant
2701 North Rocky Point Dr., Suite 400
Tampa, Florida 33607
Tel: 813-329-3880
By: Zs/ Fiances G. Prockop, Esq.
R. Ryan Rivas, Esq.
FBN: 96700
RRivas@hallboothsmith.com
Frances G. Prockop, Esq.
FBN: 727296
FProckop@hallboothsmith.com
SERVICE LIST
RUBENSTEIN LAW, P.A.
Jessica Gonzalez-Monge, Esquire
200 S. Orange Avenue
Suite 2000
Orlando, FL 32801
Tel: (407) 269-8560
Fax:(407)392-0396
jessica@rubensteinlaw.com
mdavila@rubensteinlaw.com
brgarcia@rubensteinlaw.com
Attorneys for Plaintiff
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Filing # 168665465 E-Filed 03/14/2023 10:59:51 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION MILAGROS VIERA VERA, Plaintiff, CASE NO.: 2021-CA-002570 v. RACETRAC PETROLEUM, INC., Defendant. _____________________________________/ DEFENDANT, RACETRAC PETROLUEM, INC.’S, MOTION IN LIMINE REGARDING PLAINTIFF’S PAST MEDICAL EXPENSES AMOUNT Defendant, RACETRAC PETROLUEM, INC., by and through the undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.510, respectfully moves in limine to preclude the Plaintiff, who was at all times during and following the alleged incident, Medicare eligible, from mentioning or introducing into evidence an amount of past medical expenses greater than the amount she would have been responsible for had her bills been submitted to Medicare, and states as follows: INTRODUCTION & SUMMARY 1. Plaintiff seeks damages for past medical expenses allegedly arising from a trip and fall accident that took place on June 26, 2020 in Osceola County, Florida. 2. Plaintiff is Medicare eligible, but her health care providers did not submit her bills to Medicare as required by federal law and did not comply with the Federal Medicare Program, 42 C.F.R. § 405. et seq., to opt out of such legal requirement. 3. Had her bills been submitted to Medicare, as required by law, the amount originally charged would have been reduced to the prevailing Medicare reimbursement rate. 4. The Medicare reimbursement rate would be the highest amount Plaintiff could owe, and by definition, recover, for her past medical expenses. 5. Based on noncompliance with federal law, Plaintiff should be prohibited from introducing the full amount of medical bills from her providers, and instead, must only be allowed to introduce medical bills at the operative Medicare reimbursement rate. FACTUAL AND PROCEDURAL BACKGROUND 6. This is a personal injury action arising from an alleged trip and fall accident on June 26, 2020. 7. Plaintiff now seeks economic damages, including the following in past medical expenses from treatment with her medical providers. 8. Upon information and belief, Plaintiff signed Letter of Protection/Assignment of Benefits with the following providers: Advanced Diagnostic Group, Park Place Surgery Center, Stand Up MRI, First Health Chiropractic, Cora Physical Therapy, Millenia Surgery Center. 9. Plaintiff is eligible for Medicare and is a Medicare recipient. 10. Plaintiff did not submit her medical bills to Medicare. 11. Defendant, therefore, moves in limine to preclude the Plaintiff from arguing or offering into evidence any amount of her past medical expenses above the Medicare allowed amounts. MEMORANDUM OF LAW I. EVIDENCE OF PAST MEDICAL EXPENSES IN EXCESS OF MEDICARE REIMBURSEMEN RATES SHOULD BE EXCLUDED. To prevail on a cause of action for negligence, a plaintiff must prove (1) a duty, (2) a breach, (3) proximate causation, and (4) actual loss or damage. Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). As to the fourth element, a Plaintiff can recover compensatory or actual damages for the loss (those designed to make the plaintiff whole) but cannot recover compensatory damages in excess of the amount that represents that actual loss sustained. MCI WorldCom Network Sen.'s., v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008). Damages for past medical expenses are economic and compensatory in nature. Coop. Leasing. Inc. v. Johnson, 872 So. 2d 956, 957-58 (Fla. 2d DCA 2004); Garcia v. Arraga, 872 So. 2d 266, 272 (Fla. 4th DCA 2004). It is the plaintiff's burden to present evidence proving a definite amount of economic damages, including those for past medical treatment. The Fourth District has explained: It has long been accepted in Florida that a party claiming economic losses must produce evidence justifying a definite amount. Economic damages may not be founded on jury speculation or guesswork and must rest on some reasonable factual basis. Plaintiff has the burden of presenting evidence justifying a specific and definite amount of economic damages. Where there is no evidence to justify any amount on a claim for economic damages, Defendant is entitled to judgment on the claim. United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla. 4th DCA 2008) (internal citations omitted). See also Fla. Ventilated Awning Co. v. Dickson, 67 So. 2d 215 (Fla. 1953) (insufficient predicate on which a definite sum could be awarded); Rimmeir v. Dickson, 107 So. 2d 372, 374 (Fla. 1958) (same). A. THE SUPREME COURT OF FLORIDA SPOKE ON APPROPRIATE COMPENSATORY DAMAGES WITH REGARD TO PAST MEDICAL BILLS. Plaintiff, a Medicare beneficiary/recipient, is not entitled to put forth evidence of the gross amount of charges from healthcare providers based upon the Court’s holding in Dial v. Calusa Palms Master Ass’n, Inc., 337 So. 3d 1229 (Fla. 2022). The Dial case arose from a negligence action following a trip and fall on the Defendant’s property. Id at 1230. “The Trial Court in the matter granted a Motion in Limine that precluded Dial from introducing as evidence the gross amount of her past medical expenses and limited her to introducing only the discounted amounts paid by Medicare.” Id. The Second District affirmed the trial court’s ruling, as did the Supreme Court by stating, “the appropriate measure of compensatory damages for past medical expenses when a Plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agree to accept and the total amount of the plaintiff’s medical bills.” Id at 691. Additionally, the Court in Dial quoted Goble v. Frohman, 848 So. 2d 406, 410 (Fla. 2d DCA 2003) which held that “to allow for the recovery of this full amount, under the guise of ‘compensatory damages,’ would allow for the recovery of ‘phantom damages.’” Id. As such, Plaintiff should not be able to mention or introduce into evidence past medical expenses over the amount she would be responsible for, had her medical providers submitted her bills to Medicare as required by law, as allowing for inflated amounts would be permitting the Plaintiff to recover “phantom damages.” B. FEDERAL MEDICARE PROGRAM REOUIREMENTS. Medicare was enacted as Title XVIII of the Social Security act and titled, "Health Insurance for the Aged and Disabled." 42 U.S.C. § 1395, et seq. It is commonly known as the federal health insurance program for people who are 65 or older. The Social Security Act and Section 1848(g)(4)(A) stated in pertinent part: For services furnished on or after September 1, 1990, within 1 year after the date of providing a service for which payment is made under this part on a reasonable charge or fee schedule basis, a physician, supplier, or other person (or an employer or facility in the cases described in section 1842(b)(6)(A) (i) SHALL complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary; and (ii) May not impose any charge relating to completing and submitting such a form. 42 U.S.C. Section 1395w-4(g)(4)(A)(i-ii)(emphasis added). Under the Act, a healthcare provider must submit the bill to Medicare within one year of the service provided. “If the physician fails to submit a claim to the Medicare carrier on behalf of the beneficiary when one is required to be submitted the Secretary may impose sanctions.” Stewart v. Sullivan, 816 F. Supp. 281, 284 (D.N.J 1992). See 42 U.S.C. 1395w-4(g)(4)(B)(i-ii). The Centers for Medicare & Medicaid Services (CMS) administers the Medicare Program. With regard to medical charges to beneficiaries for services covered by Medicare, “If the provider bills Medicare, the provider must accept the Medicare approved amount as payment in full and may charge beneficiaries only deductibles and coinsurance.” Nevertheless, 42 U.S.C. 1395a allows Medicare beneficiaries to enter into private contracts with their health care providers under certain limited circumstances, which allows the healthcare providers not to bill Medicare. See also 42 C.F.R. § 405.425. This is to ensure that beneficiaries have the free choice of care. Specifically, Section 1395a(b)(1) states in pertinent part: Subject to the provisions of this subsection, nothing in this title shall prohibit a physician or practitioner from entering into a private contract with a Medicare beneficiary for any item or service — (A) For which no claim for payment is to be submitted under this title, and (B) For which the physician or practitioner receives — (i) No reimbursement under this title directly or on a capitated basis, and (ii) Receives no amount for such item or service from an organization which receives reimbursement for such item or service under this title directly or on a capitated basis. 42 U.S.C. §1395a(b). Furthermore, private contracts are authorized only if the physician signs an affidavit which states that he or she: Will not submit any claim under this title for any item or service provided to any Medicare beneficiary (and will not receive any [Medicare] reimbursement for any such items of service) during the 2-year period beginning on the date the affidavit is signed. 42 U.S.C. §1395a(b)(3)(B)(ii). This means that a doctor who enters into a private contract with a single patient is barred from submitting a claim to Medicare on behalf of any patient for a two- year period. These private contracts are only permitted where: (a) A physician or practitioner may enter into one or more private contracts with Medicare beneficiaries for the purpose of furnishing items or services that would otherwise be covered by Medicare, provided the conditions of this subpart are met. (b) A physician or practitioner who enters into at least one private contract with a Medicare beneficiary under the conditions of this subpart, and who submits one or more affidavits in accordance with this subpart, opts out of Medicare for the opt-out period described in § 405.400 unless the opt-out is terminated early according to § 405.445. (c) Both the private contracts described in paragraph (a) of this section and the physician's or practitioner's opt-out described in paragraph (b) of this section are null and void if the physician or practitioner fails to properly opt-out in accordance with the conditions of this subpart. (d) Both the private contracts described in paragraph (a) of this section and the physician's or practitioner's opt-out described in paragraph (b) of this section are null and void for the remainder of the opt-out period if the physician or practitioner fails to remain in compliance with the conditions of this subpart during the opt-out period. (e) Services furnished under private contracts meeting the requirements of this subpart are not covered services under Medicare, and no Medicare payment will be made for such services either directly or indirectly, except as permitted in accordance with § 405.435(c). 42 C.F.R. § 405.405. The following conditions must be met for a health care provider to properly opt-out of Medicare: a) Each private contract between a physician or a practitioner and a Medicare beneficiary that is entered into prior to the submission of the affidavit described in paragraph (b) of this section must meet the specifications of § 405.415. b) The physician or practitioner must submit an affidavit that meets the specifications of § 405.420 to each Medicare Administrative Contractor with which he or she would file claims absent the opt-out. c) A nonparticipating physician or a practitioner may opt-out of Medicare at any time in accordance with the following: (1)(c)(1) The initial 2-year opt-out period begins the date the affidavit meeting the requirements of § 405.420 is signed, provided the affidavit is filed within 10 days after he or she signs his or her first private contract with a Medicare beneficiary. (2)(c)(2) If the physician or practitioner does not timely file the opt-out affidavit(s) as specified in the previous paragraph, the initial 2-year opt-out period begins when the last such affidavit is filed. Any private contract entered into before the last required affidavit is filed becomes effective upon the filing of the last required affidavit, and the furnishing of any items or services to a Medicare beneficiary under such contract before the last required affidavit is filed is subject to standard Medicare rules. d) A participating physician may properly opt-out of Medicare at the beginning of any calendar quarter, provided that the affidavit described in § 405.420 is submitted to the participating physician's Medicare Administrative Contractors at least 30 days before the beginning of the selected calendar quarter. A private contract entered into before the beginning of the selected calendar quarter becomes effective at the beginning of the selected calendar quarter, and the furnishing of any items or services to a Medicare beneficiary under such contract before the beginning of the selected calendar quarter is subject to standard Medicare rules. 42 C.F.R. § 405.410. The many requirements for the private contract and the opt-out Affidavit are specified in §§ 405.415 and 405.420, respectively. 42 C.F.R. §§ 405.415, 405.420. Critically, private contracts are null and void absent strict compliance with these numerous requirements. 42 C.F.R. § 405.405(c), (d); 42 C.F.R. § 405.430. In such circumstances, the health care provider has not effectively opted-out of the Medicare program as it concerns a particular patient. Id. The DC Circuit Court of Appeals held that this provision and the restriction it imposes on doctors applies only to contracts made for services which Medicare would not pay. The Court also notes that only 300 doctors nationwide have entered into these types of private contracts and thus been subject to the two-year restriction. United Seniors Ass'n v. Shalala, 182 F.3d 965 (D.C. Cir. 1999). There is no evidence that any of Plaintiff s health care providers properly opted-out of their requirement to submit Plaintiff's bills to Medicare. C. PLAINTIFF'S HEALTH CARE PROVIDERS DID NOT SUBMIT PLAINTIFF'S BILLS TO MEDICARE, DID NOT EFFECTIVELY OPT-OUT OF MEDICARE AND ARE, THEREFORE, NOT ENTITLED TO COLLECT ANY AMOUNTS IN MEDICAL EXPENSES OVER THE MEDICARE REIMBURSEMENT RATE. Plaintiff was and is Medicare eligible and a Medicare beneficiary. No Medicare claims were made on Plaintiff’s behalf. Plaintiff did enter into letters of protections and/or assignment of benefits with the providers mentioned. These letters of protection/assignment of benefits seeks to make the Plaintiff liable for charges in great excess over what Medicare would have reimbursed for Plaintiff’s medical services had her bills been properly submitted to Medicare. However, the letters of protection do not comply with the requirements for such private contracts under 42 C.F.R. § 405.415. Indeed, none of the letters of protection, for example (a) indicate whether the practitioner is excluded from Medicare; (b) state that the beneficiary understands that Medicare limits do not apply; (c) state that the beneficiary agrees not to submit a claim to Medicare; (d) state that the beneficiary understands that Medicare payments will not be made for services provides; state that the beneficiary knowns that he had the right to obtain Medicare-covered items; (e) mention an effective or excepted expiration date of the current 2-year opt-out period; (f) mention Medigap plans; or (g) are even signed by the physician or practitioner. 42 C.F.R. 405.415(b), (d), (e), (f), (g), (h), (j), (m). Therefore, the letters of protection are null and void. 42 C.F.R. § 405.430 (reflecting that private contracts between practitioners and the Medicare beneficiary patient "are deemed null and void" if they fail to comply with the requirements under §§ 405.415 and 405.420). Furthermore, no opt-out Affidavits accompanied these Letters of Protection. Again, the practitioner can only enter into a private contract with a Medicare eligible patient if the practitioner properly opts-out of Medicare. 42 C.F.R. § 405.410. There are ten requirements for a proper opt- out affidavit, the most obvious of which is that it be in writing and signed by the practitioner. 42 C.F.R. § 405.410. Therefore, Plaintiff s health care providers (1) did not legally opt-out of Medicare, (2) were required to submit Plaintiff's bills to Medicare as an eligible patient; and (3) were not entitled to collect anything greater than the Medicare rates for the services provided to the Plaintiff in full satisfaction of the original charges. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 549 (Fla. 4th DCA 2003) ("[P]ayment by Medicare requires the provider to whom payment is made to accept such amount in full satisfaction of the total charge even though the amount charged exceeds the amount paid by Medicare."). Neither the medical providers, nor Plaintiff and her attorneys, should be permitted to benefit from circumventing the plain requirements of federal statutory and regulatory law. D. PLAINTIFF CAN ONLY PRESENT TO THE JURY THE AMOUNT THAT MEDICARE WOULD HAVE CHARGED HAD HER BILLS BEEN SUBMITTED TO MEDICARE AS REQUIRED BY LAW. Original charges by health care providers are irrelevant and inadmissible when the provider accepts payment from Medicare in full satisfaction of the charge. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003); Cooperative Leasing. Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004) (holding it was error to allow plaintiff to admit into evidence bills for medical expenses for which she never incurred liability and in allowing her to recover damages in excess of payments made by Medicare); Miami-Dade Cty v. La ureiro, 894 So. 2d 268 (Fla. 3d DCA 2005); Boyd v. National Mut. Fire Ins. Co., 890 So. 2d 1240 (Fla. 4th DCA 2005) (trial court properly limited evidence regarding medical bills paid by Medicare to the amounts actually paid to the medical providers pursuant to the Medicare fee schedule). The undiscounted excess medical charges cannot be admitted in to evidence because it would result in a windfall to the Plaintiff by permitting recovery for past medical expenses for which he was never and will never be liable for. Thyssenkrupp, 868 So. 2d at 550 (charges in excess of the amount discharged by Medicare is irrelevant and inadmissible on the issue of damages suffered by a plaintiff because the plaintiff is never liable for the difference). As Cooperative Leasing, Inc. succinctly stated: The issue in this case is the appropriate measure of compensatory damages for past medical expenses. "The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money." Mercury Motors Express, Inc., v. Smith, 393 So. 2d 545, 547 (Fla. 1981). "The primary basis for an award of damages is compensation." Fisher v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965). In this case, Johnson sought to collect the "additional value of medical services reasonably made necessary" by the appellants. We conclude, however, that Johnson was not entitled to recover for medical expenses beyond those paid by Medicare because she never had any liability for those expenses and would have been made whole by an award limited to the amount that Medicare paid to her medical providers. Coop. Leasing, Inc., 872 So. 2d at 957-58. Accordingly, the maximum amount Plaintiff would ever be responsible for - if her medical providers submitted the medical bills to Medicare as required by law, should have been the Medicare limits. Any amounts provided for above the Medicare limits cannot legally constitute past medical expenses of the Plaintiff, and she must not be allowed to mention or introduce evidence as to those higher amounts. D. PLAINTIFF HAD THE ABILITY TO SUBMIT HER MEDICAL EXPENSES TO MEDICARE TO MITIGATE HER DAMAGES. Failure to submit Plaintiffs medical expenses to Medicare does not fall solely on her medical providers. Plaintiff knew she was Medicare eligible at the time she treated for the subject accident, knew that her providers never asked for her Medicare card, and still chose not to submit her bills to Medicare. A Medicare beneficiary can submit his/her bills to Medicare if his/her physicians do not. This represents a failure to mitigate damages as a matter of law - an affirmative defense raised by Defendants. [T]he term "mitigation of damages" has no single meaning and is used by the courts to describe several different problems in the law of damages, the term as used herein encompasses those facts which tend to show that the conceded or assumed cause of action does not entitle the plaintiff to as large an amount of damages as would otherwise be recoverable. Specifically, the type of problem litigated herein involves the doctrine of avoidable consequences, or efforts to minimize damages, where the plaintiff reasonably could have avoided a part or all of the consequences of the defendant's wrongful act. Parker v. Montgomery, 529 So. 2d 1145, 1147 (Fla. 1st DCA 1988). "Accordingly, if some of the damages incurred could have reasonably been avoided by the plaintiff, [this] doctrine prevents those damages from being added to the amount of damages recoverable." Id. See also Sys. Components Corp v. Fla. DOT, 14 So. 3d 967, 982 (Fla. 2009). WHEREFORE, Defendant, RACETRAC PETROLUEM, INC., respectfully requests this Court enter partial summary judgment limiting any amount awarded for past medical expenses to the Medicare allowable amounts. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 14th day of March, 2023, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system to all counsel of record on the service list below. HALL BOOTH SMITH, P.C. Attorneys for Defendant 2701 North Rocky Point Dr., Suite 400 Tampa, Florida 33607 Tel: 813-329-3880 By: Zs/ Fiances G. Prockop, Esq. R. Ryan Rivas, Esq. FBN: 96700 RRivas@hallboothsmith.com Frances G. Prockop, Esq. FBN: 727296 FProckop@hallboothsmith.com SERVICE LIST RUBENSTEIN LAW, P.A. Jessica Gonzalez-Monge, Esquire 200 S. Orange Avenue Suite 2000 Orlando, FL 32801 Tel: (407) 269-8560 Fax:(407)392-0396 jessica@rubensteinlaw.com mdavila@rubensteinlaw.com brgarcia@rubensteinlaw.com Attorneys for Plaintiff