“Write-offs” Argument, 2000 to 2009

In the late 1990s, insurance defense attorneys came up with an argument which, if successful, would have reduced injured person’s medical bill recoveries by as much as one-third to one-half of the amount of the medical bills. 

At first, the defense argument enjoyed wide success in Virginia trial courts, and injured persons saw their recoveries reduced substantially as a result.  Roger T. Creager was in the vanguard of the statewide battle against this argument, which came to be known as the “incurred” or “write-offs” argument. 

The battle came to a head in the Virginia Supreme Court in the case of Acuar v. Letourneau.  Mr. Creager was a co-author of the brief filed in the case on behalf of the Virginia Trial Lawyers Association, the largest organization of Virginia trial attorneys representing injured persons in Virginia. 

The Virginia Supreme Court issued its decision on June 9, 2000.  The position and arguments advocated in the brief filed by Mr. Creager and his co-counsel on behalf of the Virginia Trial Lawyers Association prevailed in the Virginia Supreme Court’s decision which is reported at Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316 (2000).   

On June 30, 2009, the United States District Court for the Western District of Virginia held that Virginia’s Collateral Source Rule applies in the context of Medicaid and other government programs that allegedly have resulted in “write offs.”  Here is a great opinion out of the W.D. Va. Magistrate Judge Sargeant holds Virginia’s CSR applies to Medicaid Write Offs and write offs under other government programs.  The Magistrate Judge held:

“Based on the Virginia Supreme Court’s recent expansive view of the collateral source rule, I am of the opinion that, given the opportunity, the Virginia Supreme Court would hold that the collateral source rule would allow a personal injury plaintiff to seek damages for the full costs of medical treatment regardless of whether any amounts were written off under Medicaid or some other government-funded program.”

Wright v. Smith, 641 F. Supp. 2d 536, 542 (W.D. Va. 2009).

This is the opposite of the conclusion that W.D. Va. District Judge Glen Williams reached years ago in his McAmis opinion (1997). But Magistrate Judge Sargeant holds that the more recent Va. Sup. Ct. decisions (Acuar, Radvaney, Accordia, Bullard) support a different conclusion, i.e., the one she reached.  

This is an important decision and it was won by the fine work done by the following counsel for Plaintiff and their law firm:  S. D. Roberts Moore, Anthony M. Russell, Benjamin D. Byrd, GENTRY LOCKE RAKES & MOORE, LLP, 10 Franklin Road, S.E., Suite 800, P.O. Box 40013, Roanoke, Virginia 24022-0013, TEL: (540) 983-9300, FAX: (540) 983-9400, roberts_moore@gentrylocke.com, anthony_russell@gentrylocke.com, benjamin_byrd@gentrylocke.com , Counsel for Plaintiff Kandie R. WrightHere is the Brief filed by the foregoing counsel for Plaintiff.  Memorandum Supporting Application of Virginia Collateral Source Rule to Medicaid Context.