S.B. 211 Tort Amendments: transcript

Okay. Very first, I have a substitute if I

Um, substan substantively, it's really not different. It just, uh, it just moved some language because there are some, some, uh, confusion about whether this pulled in Mel Med Mal and the intent was always not to pull in med mal. The problem in our code is collateral source is actually defined in, in some of the med mal sections. And so it was referring back to that, which made it kind of confusing. So we just pulled out all of that, put it all in a new section and just refer back to the, the definitions that are in men mal, without actually citing that, that part of the code.

I'll make the motion that we delete title and Body of Senate Bill two 11 and replace it with first substitute Senate Bill two 11.

Okay. Thank you, chair. So this, this bill addresses evidence and civil tort actions, specifically making certain evidence related to collateral sources inadmissible in court. So it, like, as I mentioned, it references defined terms of, of collateral, uh, source and prohibits the, and it would prohibit the introduction of evidence about insurance payments, discounts, write offs, or other collateral benefits in non med mal tort cases. So again, it exempts med mal cases. This bill is, um, let's see. So for years in Utah, the collateral source rule has been a cornerstone of tort law, ensuring that defendants or their insurance coverage cannot reduce their liability by pointing to benefits of plaintiffs receives from independent sources like health insurance. Traditionally, this has meant that in personal injury cases, juries would not hear about insurance discounts or payments damages were based on the full reasonable value of medical expenses incurred, uh, preventing wrongdoers from benefiting from a victim's foresight to actually having insurance. Um, in October 25, just a few months ago, the Utah Supreme Court issued a ruling in Gardner v Norman. The court in that ruling, uh, addressed collateral source, which has largely been a common law, uh, theory, and ruled that it does not actually exclude evidence of negotiated insurance rates or amounts actually paid for medical care. So as a result, defendants can now introduce, or insurance companies can now ask and introduce about evidence of discounted payments, which would then thereby limit plaintiff's recoverable damages to only the reduced amounts paid by insurance rather than the full bill charges. So this dec, this decision overturned longstanding practice and principle. Previously, plaintiffs have always been able to, to seek recovery of the full reasonable medical expenses. Uh, but Gardner, Gardner now undermines that and allows juries to consider only the lower negotiated amounts, effectively giving discounts to the defendants or the wrongdoers that they did not negotiate. So, for example, uh, if a hospital bill or, or bill is incurred due to a injury from a car accident, uh, or $10,000, but the provider accepts $6,000 from the insurance gardeners would let the defendants argue that the de the damages should be capped at 6,000, um, even though the plaintiff, uh, incurred the full liability initially. So critically, this shift is a significant boon to insurance companies, and it reduces the overall payouts in tort cases where, uh, the policy holders are defendants. So this leads, uh, already we're seeing in the, in the few months that this has been in place, leading to lower settlement offers, low lower settlements and potentially lower verdicts, uh, without any corresponding obligation to pass those savings on to the consumers. So respectfully, the Gardner decision represents judicial activism. At its core, the court didn't just interpret existing law or didn't just implement existing laws understood here, but fundamentally altered tort policy by redefining what constitutes actual loss under the collateral source rule for years, insurance companies, courts, practitioners, have understood the rule to exclude all evidence of collateral payments, preserving the policy balance that has been long understood and recognized. So by allowing evidence and negotiated rates and limiting damages, the court made a policy choice deciding that the, the difference here, uh, the difference between the paid and billed, um, should not be recoverable, uh, without legislative input. So I think it's notable that in the decision they did reference that, that this policy can be dictated by legislation and, and, and in fact, we did that last year with medow. So, uh, this decision encroaches on the legislature's role of policy, policy making and, uh, policy decisions about how to balance victim compensation, insurance incentives, defendant liability belonging here and the people's elected body or, or that should be defined in the people's elected body, not in the judiciary. So, um, the Gardner ruling handed insurance companies an unexpected windfall by capping recoverable damages at discounted rates, which lower obviously lowers their exposure and claims against the their insured defendants. But to date, there's no evidence or expectation that insurers will actually reduce premiums or rates for policy Utah holders as a result. So this policy shift disrupts, again, longstanding business practices and understandings in the insurance industry where RA rates and premiums have already been set, already been established based on the traditional collateral source rule. So, because we're proposing this, so shortly after the decision, the thought is we're we're not really creating a shift. The, the, the, the decision at the Supreme Court was the big shift. We're just trying to set the status quo back to how it was prior to this decision in October. So instead of benefiting everyday Utah, Utahns Guard Gardner changes the, uh, changes, primarily hurt tort victims by under compensating them for their injuries. While insurance companies will get the benefit and pocket the savings, uh, without an obligation to necessarily pass that on to policy holders or consumers. So again, we're just trying to go back a couple months, not trying to gain ground for, for trial attorneys. I'm open to discussion on this bill if, if anybody feels that it, that it does and, and trying to work through that. Um, additionally, so it, it further describes and allows how courts and and parties in these actions, um, should, should handle collateral source evidence. And, uh, in summary, this decision has fundamentally disrupted balance and time-tested system that we've had in this, in this state, uh, between insurance companies, tortfeasors, uh, victims and granting insurers a windfall the expected at the expense of victims without, without any assurance that that's gonna trickle down to Utah Utahns. This is simply just trying to put it back, um, and ensuring that Utah victims are made whole without defendants profiting from others' insurance. And that's my explanation. Alright,

Good afternoon, uh, members of the committee. My name is Russ Hyman and I'm the president of the Utah Association, uh, for justice, um, and speak in support of this bill. Um, because of the troubles that were created by the Gardner decision that this bill undoes, um, the Supreme Court ruling in Gardner created some problems in that. Number one, it, it actually, um, rewards a lack of personal responsibility. Now under Gardner, if there is an individual that failed to, to secure health insurance and that person has a $10,000 medical bill from the hospital from injuries in an accident, that person will be able to present the $10,000 bill. Someone who is, um, secures their, their health insurance pays premiums for that, and they get a negotiated amount for that. We'll only be able to present the negotiated amount, maybe $5,000, someone who's on Medicare, perhaps even less. And so it re it rewards the lack of personal responsibility and punishes those who have secured for their future through the payment of premiums. Um, it also gives an, an inexplicable windfall to insurance companies. As I mentioned, the reason that a negotiated rate, and, and Senator Comore addressed this in in his discussion, is there, because someone has taken the time to pay a premium amount, that premium amount is why a negotiated rate is possible. And so it's not fair to characterize as a windfall to a plaintiff, um, who paid years of health insurance premiums that, that they are now getting some benefit from that the windfall is actually going to an insurance company who paid no part in paying those premiums and now wants to have the benefit of a negotiated rate. Thank

My question is, you, you presented it as unequal, but so a person who didn't have insurance presents hi his bill and gets that bill paid in full, and a person who did have insurance presents his bill, but it's for a different amount, but it's also paid in full. How is the one her, I mean, if they were both compensated fully for the damages they incurred, then help me understand why that's bad. It seems to me like they both got a hundred percent of their damages back.

So the damages are a lot more than just what the medical expenses are. And part of the problem is is that the, the, so much of the damages beyond just the medical expenses are, are tied to, or tethered to what the medical expenses are. Things that go into other types of damages like non, uh, non-economic damages, pain and suffering and things like that. So insurance companies will actually build into some of their formulas, um, what is the total amount of medical expenses along with some of the damage, uh, the, um, diagnoses. And then they will build in non-economic damages on those bases. So that person is not only getting punished with having paid a premium and the insurance company only paying 5,000 instead of 10 for that, but also because their non-economic damages are also affected.

Is that in law anywhere that, that non-economic damages are based on economic damages?

It's not written in law. It's part of the formulations of how a lot of trial lawyers and defense attorneys will speak to, to the formulation of, of how non-economic damages are built up. And it's part of insurance companies formulas, um, in pre-settlement negotiations. And so that's one of the biggest concerns, Senator Fillmore, is that this is going to result in, uh, and it already has resulted in more stalemate in pre-litigation discussions with insurance companies that's going to push more cases into the courtroom for a battle of what is the appropriate amount of things like non-economic damages. Okay, thanks.

I, uh, here to speak against the bill and also to offer some insights. We've talked about Garner. Let's talk about another case. Rodriguez, we need to talk about both of them. The one thing that we'll not get to the jury is evidence of insurance. That's not going to happen. So what the jury needs to consider is what were the amounts that were actually paid, what are the exact amounts of the damages, and then also ought to consider and have the ability to have doctors who are there to appear to speak to bias or potential, uh, impeachment if they are involved. Let me speak first to the, uh, evidentiary issues. This essentially creates a lobotomy of the jury system. We're telling the jury people we trust and, and it's been noted here to decide, uh, who lives or dies in capital cases, that they're not smart enough to handle the math of a medical bill. We are mandating by statute that the jury be the most ignorant people in the room. I guess I want to ask why, because the truth might get in the way of the payout. It's a heist with a gavel. A chiropractor bill's $50,000, insurance pays three, the loss is $3,000. That's the reality. That's the check that cleared. But this bill says the jury has to look at the 50 and pretend the three doesn't exist. We're legislating phony damages. We are asking the courts to award money for costs that were never paid to a plaintiff who never owed them. So a lawyer can take 40% of a fiction. It's a transfer of wealth posing as tort reform. And the doctor, this is Rodriguez, the case that was not mentioned. The doctor testifies, he's the expert. He's independent except he's on a lien. He only gets his cut if the plaintiff wins in any other universe. That's called a conflict of interest in this bill. It's a protected secret. You can't ask him about it. You can't impeach him. You have to let him stand there and look the jury in the eye and pretend he doesn't have a stake in the verdict or making it illegal to tell the jury the witness is a partner. I speak against Senate Bill two 11.

I have a question. I'm I'm just, you know, if, if you're testifying that the jury should have all of the information, can I assume that you would agree that, that we should change the law to let the jury know that there's insurance coverage? No. What I'm saying, but, But you just said, Let me, let me clarify. You just said we shouldn't pre play pretend, and the juries were smart enough to figure stuff out. So why, why would we withhold that fact? Tell me how your testimony doesn't apply to that two. There

Are two different things. Uh, Senator, Why, why? Because The jury should be allowed to consider that if the doctor doesn't say all of this was related to the accident, he doesn't recover If there are liens, if he has a financial incentive in saying that, we say that all the time in trial. We can impeach for credibility to say that he has a financial stake in the outcome that doesn't have anything to do with insurance.

But you're okay making plain make believe when it comes to your client's insurance coverage. But everything else they should be told

Absolutely not. No. Okay. What we That's not what I heard though. What we wanna Do is control admissibility of evidence.

Yeah, thank you. And, and to Senator Weiler's point, chair Weiler, you end quote, you referred to the Juab jury as the ignorant people in the room. And what you just said is you want them to be ignorant. You don't want them to know the coverage. I I I'm frustrated by that testimony that that's your quote. That's what you said. You want, you wanna know about insurance and about payments when it benefits you, but when it doesn't benefit you, you're okay that the jury is quote the ignorant people in the room. That's what you said, right?

This bill, this bill would make them that Yes, Senator. Yes, because

We're, but that's what, but that's what you said. You want, you want them to be ignorant to the coverage.

Not at all. Not at all. No. Okay. We're not, we, this isn't limited to insurance. So this is any sort of arrangement. This is the flat amount of what did you pay for your medical services? This is not an insurance bill. This is an evidence bill about how much was paid and how much was resolved in the end. What was actually incurred? Not what was billed. It could come through insurance, it could come through a personal arrangement, it could come through a, a handshake deal. There's lots of ways to pay for medical services. It could come through liens that have nothing to do with insurance.

In, in a lot of the scenarios, if someone has insurance, they would likely end up having less medical bills as opposed to if it was a, a cash payout, right?

It depends. I I know it depends. Yeah. But generally, yes. Correct. Correct.

That's the classic lawyer answer. Uh, it it goes off rates. There's, there are many providers who accept charge Charge talking when you're about the evidentiary issue. Yes. The person who pay, who has insurance, the actual medical bill is probably less than the one who does it on a lien in most circumstances. Right.

I wouldn't accept that as true. Okay.

Well, I would, and let me, let me go further with this. If the person who, you know, part of this is generally they do pay a little bit less, there's bulk rates for insurers and the actual bill is typically less than for others, especially if they're on a lien because they're uninsured. But in order to pay less, they have to pay more over time through their policy premium. And so would you be opposed to including within the damages, the policy premiums for a period of time leading up to the accident so that they were able to pay less when they were damaged by that other person?

It'd be an interesting approach. Yeah. I think that there ought to be a discussion on that to, to

See, and that would necessarily say that they have insurance and let the jury know that insurance covered part of this, right?

Yeah. What, what I'm here and interested in speaking to specifically is not withholding that.

But you're also here because I have a question for you and I'm trying to get to the bottom of the policy issue. So, you know, I get that. The other issue that I have is if, if somebody is damaged and they receive a gift of care from their neighbor, let's say that they lose a tooth in an accident or something and their neighbor dentist fixes the tooth that would otherwise cost money. But they provided that as a gift. Now under the Gardner decision, typically that would come in as a zero damages amount for their medical costs related to that tooth. Right? Why should that benefit iner to the benefit of the insurer as opposed to inuring to the benefit of the victim?

Well, I I would dispute the preface of that, that whether or not that was a, that considered an incurred amount that was actually incurred or realizes a damage would be something that we'd have to talk about

Each case. I'm here to talk about it today and I have to make a decision today. I I

Am here to answer you, Senator.

So I mean you're saying everything, it depends, but, but what I'm trying to get at is in gifted medical services, why should the insurer benefit and not the person who was damaged?

Yeah. And that's not about shifting the benefit. It's about identifying how much it it was actually incurred and

Paid. Okay. So let's say that the tooth replacement cost was typically $750. Okay? So they didn't have to pay that $750, but they were given that as a gift from their friend because their friend felt bad. However, the person who caused the damage who was insured and the insurer, which strong and Han likely represents in the state of Utah, comes to them and they say you don't get anything because you didn't actually have to pay for that even though you suffered the damage and someone gave you the gift. We get the gift. Not you. Isn't that what Gardner does?

No, that's not what Gardner

Does. It sure seems like it. How does it not do that?

Gardner addresses rates that are actually accepted that the $500 would've never been paid, that it was $500, but they accept $50 instead. They were only ever going to accept $50. The only amount that was ever paid or incurred was $50. But yet the jury,

What about in the gift scenario?

Excuse Me, the gift scenario.

Somebody provides services for free to a victim Who, who gets the benefit? Does it come off the damages amount?

The the benefit would be to the plaintiff in being put back in the position they would've been had it not happened. And that's reflective of the amounts incurred and not amounts that would never happen.

And it's an unjust enrichment to put it in legal terms to the insurer who does not have to pay the damages and who receives the benefit of the gift that they otherwise would've had to pay for.

Well, I wouldn't accept that Senator. It's a, it's a person, it's a human being who purchased the auto insurance, who actually, uh, was involved in the accident. Uh, and, and is the person who is standing there to, to have to pay that, whether or not they have insurance, auto insurance doesn't come in in terms of, of ability to pay that, uh, they shouldn't have to be paying more than was actually sustained or incurred. You raise an interesting point on the zero payment gift. I think Rodriguez speaks more to collateral sources. Collateral sources.

Are you talking Rodriguez versus Kroger? 2018?

No, Rodriguez versus Didi, which is not addressed in, in the, in the preface here. I'm not saying that this isn't a complicated issue. In fact, we work with counsel every day in a very collaborative way. But what I am against is telling the jury that something is $50,000 when it was really $3,000.

Thank you Mr. Chair. A couple of statements that were made. So I'm very confused. You gave the example of the the doctor, which is a licensed provider, right? So we recognize this, our professionals that have to meet at standard for their license to be kept, and that because they are put in a position maybe to, in a court case, um, that they will not, um, be truthful because their funding or their payment of that care, it's attached to the case, right? And you said because if not, then no one pays them. So let me go through a scenario, which is a very common scenario in this case when someone doesn't have any coverage, and even if they're in their own, sometimes they do have some, um, medical coverage, if it's a, um, personal injury case, they are, the insurance starts like, nope. You have to first go and try to figure that out on your own. So the only way these people get care is through companies that have liens. Correct? They take the whole risk. Is that correct? Yeah. Okay. And they have to pay because they have a contractual agreement with those medical providers. So this idea that the doctor will not get paid because a settlement doesn't happen or based on the outcome of the case is a lie, like complete lie because they're actually getting paid usually within a 30 day window. So the cases, by the time it gets to court, it's already 18, 24 months from the case. So like I, it, I'm concerned about some of, there were a lot of statements made on your statement that were, that I will say three fourths of them were inaccurate. The one about the doctors and them having to lie, I mean they're licensed providers and that's a lot of their standards depend on that. And their license too. They get paid well with regardless of the case outcome. And they already got paid by the way, usually by the time it gets to a court case and they're testifying in court, they've been already paid for the medical care they provided. So what you're saying is anyone that's in that position of providing access to individuals that have no other way of getting care, they you should do it. How? Like where is, tell me. I mean the business structure of this, and then the last question is, you gave the example of the 3000 to the 50,000, the standard on this care because you actually have to provide billing codes, a whole medical record. You're, I mean, it has to be provided everything, everything. This is not like you just send a little letter that says, I charge $50,000 for this. That's not how it works. And you probably know this, it requires a lot of in detailed descriptions and a lot of healthcare providers and licensed people providing all that information. So how do you know the 50,000 to the 3000? I'm like, wow, I, is that an injection that's only a 50,000 and a surgery. There's no surgeries of 3000. So I'm trying to figure out that scenario where what you're saying is accurate because everything has to be through a billing code and it has to be, you can't do it Medicaid times 10. I mean, there's a framework of work in here and that's how it is done. So I i it is not like this arbitrary like, oh, I think I'm gonna charge $350,000 for a, for this elbow surgery, right? That is usually 75,000 and everywhere else. So I How do you respond to the fact that what you were describing was like super radical?

Yeah, in fact, it's not. And there will be many of my colleagues here to speak in opposition, the bill who can give you actual instances where the margins have been such, it's not, it's not the norm. I was using it to illustrate a point, but I have seen that very thing where the accepted amount is significantly less the 50 and three. So that would be a gardener issue where what happens to the margin if you pump up and, and that $47,000, uh, for sake of argument is never actually collected. Uh, and for the first time we are actually now able to see and have discourse with counsel over what was agreed, what was the, the rate down, what was reduced. Rodriguez versus Didi is the next case. If you look at that case, there's actually a selection. The Supreme Court included a deposition transcript of a doctor who in fact absolutely said that they work for a, uh, company that finances medical care and, and it's, it's uh, not to say anything negatively about those who receive the medical care through this because they can't receive it otherwise. But the doctor then says that, and it acknowledges that this funding company that's providing this absolutely has a financial stake in the outcome of the case. And that was a pivotal point in the Rodriguez versus Didi case. So I would say that that actually is accurate. It's supported. Uh, we have sworn testimony from doctors who say that. Now I've deposed many surgeons who have said, I don't get into payment of, of these amounts and I don't have anything to do with that. But they do acknowledge that they have, and I've asked doctors in, in trial, is it true that you stand to not gain anything if he doesn't, if the plaintiff does not recover? And their answer is they do not recover anything if there is not a verdict. Uh, and so we work through liens all the time and I'm happy to explain that and walk through that, uh, more.

I'm very familiar, sir. Thank you. Okay,

Yeah, thank you. So in your exaggerated illustration of the 50,000 to 3000, right? Um, pre, pre Gardner, was there any reason why you couldn't challenge the reasonableness of how much medical medical care was necessary?

It's a great question. It's actually a, a major part of the burden that the plaintiff must carry is that not only that it was incurred, but what was incurred was reasonable and necessary. And we interact with that all the time.

And, and you could always question and challenge that prior to Gardner, right?

The reasonable and necessity, yes. Only as to the bill amount, not the paid amount, the amount incurred. Right?

So that $50,000 charge, for example, you could have challenged the reasonableness of that.

And we do. Yeah.

Is there anything in this bill that would preclude your ability to challenge that?

No. No. However, what we want to be able to do is say, well, that's not actually what was paid. That is a fiction that's not real. That in many cases was never expected to be collected in the first place.

But to, but to the exaggerated example, nothing in this bill would preclude you from challenging that that $50,000 bill is unreasonable, that it was maybe too much treatment or that the treatment that was incurred was excessive per industry standards or anything like that. You can still challenge that

And, and we do all the time. Senator, the point is, is that that is not an accurate number of amounts incurred, nor is it the margin that would put the plaintiff back in the position.

They would've been, I I get the incurred amount. That's the whole point of this bill. Absolutely. But the build amount, nothing in here I'll highlight again, precludes your ability to challenge that the, the amount of medical coverage that was, that was incurred was necessary or that the amounts billed were, were proper per industry standards,

But we're skipping a step. Uh, and we're skipping a step because it has to come into evidence first as to what the medical expenses are and how those are marshaled and put forward. That's step one. Uh, also the doctor in, in testifying as to reasonable and and necessary, we are now through this bill told we cannot ask anything about do you stand to gain anything from the outcome of this verdict? Do you stand to collect something from this? Correct. And so it is a false, false, that's how the collateral source rule was always understood prior to this, although you so,

but you can still challenge, you can ask the doctor, was all of this necessary for the pain and suffering and the treatment and the damages that were incurred, are these amounts in line with other similar treatments throughout, throughout the community or the industry?

Yeah. And, and the collateral source rule is changed. The definition of collateral source rule goes from insurance to amounts that were agreed upon. Liens were not collateral sources. They don't come from someone else. It's intended to come from the defendant and the outcome of the verdict, that's not a collateral source. That's to say we'll get paid later and we promise to collect out of the verdict or nothing if we, if you don't collect, that's not a collateral source, but it's

A Third party transaction that your clients have no part to

Correct in, in terms of that. But again, that's not a payment or a benefit to see or received as a result of having insurance. So.

Chair of members of the committee. My name's Jake Lee. I serve as the legislative chair for the Utah Association for Justice. And I'm here on behalf of them and, uh, myself and injured Utahans and doctors who treat them. I'm glad that the Rodriguez VTE case came up. Uh, the decision allows defense counsel to portray for physicians who treat patients on a lien as untrustworthy and financially motivated simply because they agreed to wait to be paid. But I wanna make unequivocally clear that I have never seen a lien where the doctor didn't have to be paid regardless of what happened in the case. The

Practical, I I'll just say I haven't either. And usually the doctor's paid within a week or two.

The practical Of the, of the surgery is what I'm saying. The practical result is simple doctors are less willing to treat injured patients who can't pay upfront and that reduces access to care and punishes providers who step in when patients need the most. The second point I'd like to make is about Gardner v Norman. It injects real unpredictability into these claims and unpredictability means more litigation. Two people with the same injury can now have dramatically different case values based solely on what insurance they happen to have or whether they have any at all. When outcomes become arbitrary, cases don't settle, they get litigated. That's bad for patients, it's bad for doctors and it pushes more cases into litigation. Gardner doesn't eliminate a windfall, it shifts it from injured patients to the negligent party's insurance company. And so you have to ask yourself, do you want that money to stay in the hands of Utahans or do you want it to go to an insurance company whose profits I believe in 2024 were $178 billion. Third, this bill will not cause insurance premiums to go up. If anything, the opposite is true. Gardner and DIY push more cases into litigation, which increases defense costs for insurers. SB two 11 restores predictability, predictability drives settlement and settlements reduce litigation expenses. This was the status quo until October of last year. So we're not talking about increasing premiums, we're talking about keeping them where they were. I know many of the cities and municipalities are nervous that their risk pools are gonna go up. And the point I wanna make about that is that they still have government immunity. If risk pools and premiums were gonna go up, well, excuse me, if they were gonna go down following the Gardner case, they would've done it. And we haven't seen that. So that is a bogus point. So what SBE two 11 restores balance, it protects access to medical care, brings predictability back into the system and ensures that doctors and patients aren't collab collateral damage. For those reasons, I respectfully urge your support on this bill.

One, one quick question. Thank you for your testimony, uh, Mr. Lee. So, uh, in, in your opinion, does this bill just put us back to where we were in September of last year?

Yes. Does it make any additional changes? No.

Thank you. I'm Richard Glauser, and I have been doing personal injury defense work for 41 plus years, which makes me older than dirt, but also experienced in this. And I've had cases with my many of you, so I know you. This, uh, this bill really is designed to allow plaintiff's attorneys and plaintiffs to collect the windfall. That's absolutely what it is. And you asked a great question, Senator Weiler, you said, does this do anything besides this boot bill do anything besides reverse guarder? Yeah, it does go read section four, which says this applies to settlements and every insurance company submits the bills. I mean, they have different companies they use. You've seen, you know what I'm talking about. I know what you're talking about. Yeah. And they come up with a reasonable value of the bills. They're now saying you can't reduce the bills even for settlements. And the cases that actually go to trial, as you know, are a teeny fraction of the cases that are out there. So will this increase premiums? Absolutely. And who, and, and those premiums are gonna be paid by your constituents just so that a windfall can be paid to plaintiffs and their, their clients and your plaintiff's attorneys and their clients. And that, that just plaino isn't fair.

Let me ask you and I, please, sorry to interrupt. Uh, if Gardner stays in place and this bill doesn't pass, do you expect insurance premiums to decrease in Utah?

Yes. Or At least they won't go up like they would.

That's a little different than decreasing. Well,

I would ex I would hope they decrease. They should. And in fact, as you know, insurance companies are probably the most regulated industry in the country, and they have to have certain reserves and certain everything based on the claims. They play out, pay out. And when you pay out more money, they raise their premiums. They're required to do that, uh, by regulation.

Uh, yeah, just a couple other things I brought with me. Some cases, uh, these are actual cases in my office right now. I got a call yesterday afternoon.

No. Well, I not, I won't give you any names. Okay. Okay. And I'll try to, uh, respect hipaa, but I pulled a few of the cases we have and, and these are just some of examples. This is a bill from Lakeview Hospital 200. They billed $214,844 and 96 cents. They accept it as payment in full $59,792 and 74 cents. That's a difference of $154,000. Now, if this case goes to trial and we're precluded from attacking the 214, where does that extra $154,000 go, goes into the pocket of the claimant and the claimant's attorney. Okay. This is another example. This is a case. This is from, uh, so,

So, so before you go on Yeah. In your Lakeview hospital, that's my district. So you, you're hitting me close to home. Um, what would preclude you from showing the difference?

This bill, this, if this bill passes, we can't get into what was paid. We can't present it. We can't argue it. I mean, they get the 200.

Is that because of the collateral source rule?

It's be, well, this bill says you can't introduce any evidence that it was reduced. Okay. Go on. Okay, Now I I'm gonna go back to something, uh, Senator Cullimore asked, he asked you, do you, you know, can't you contest these bills? And the answer is yes, you can. What it requires is an expert witness. And there are certain companies that do this. Like I said, I've been doing this for 42 years, years. I could name who they are and they charge you about 10 to $15,000 to read through the bills and come up with an amount that they think is reasonable. And in, in 42 years of practicing law, I can count on, I dunno off one hand, but certainly less than two hands, how many times I've hired those experts. They don't wanna spend that money. It's counterproductive. So if you have to spend that money to challenge these on every cases, the expenses still go up. It's no different than what it is now. Now let me talk, this is the next bill I have. This is from the Rawlings Company. They, they providers bill $19,609 61 cents. That was reduced to $1,265 and 88 cents. It was reduced by $18,400. Where does that money go? Goes to the plaintiff and the plaintiff's attorney,

I appreciate that one. This is the, this is one from Loma Lynndyl Lynndyl University, where they bill, um, well, I'm gonna skip that one. Uh, I mean, I could in the interest of time, this is one from a, a hospital bill of $98,414. This is a California Medi-Cal case, got reduced to $6,797. $92,000 swing. That would go to the plaintiff and the plaintiff's attorney. Thank

Thank you. Mr. Glauser. As you mentioned, you've been practicing for 41 years. Yes. Presumably most, well, most of those 41 years were prior to the Gardner decision. Correct. And you only needed those expert witnesses a handful of times in those 41 years. Up to that point.

I needed them in every case. We couldn't afford 'em. And, and there's a difference. The, you know what the cases I used them on when you had a case where I had a bill of a half million dollars to a million dollars, I could go to the insurance company and say, this is the kind of case we need to spend the 15 to 20 grand to get an expert on. And they'd say, okay. But the, the run of the mill auto accident cases, which we see every day, or the slip and fall cases, no one hires those because you can't spend 10 to $15,000 to save $5,000. 'cause the bills are inflated.

But, but those same calculations and assessments are being made by plaintiffs on those very same cases. Okay? We're gonna need experts to go in to testify about X, y, Z to prove our, to prove our case. I, I guess my point is, most of the, most of the time you don't need the expert witness. 'cause they don't, they don't go to trial. And what we're trying to do here is, is create the same path that's already been, that's always been present in Utah to afford the opportunities a reasonable way to, to settle the cases with, with the certainty of the, of the collateral source rules was previously understood.

You're you're absolutely right. But let me tell you what I tell my clients. I treat every case like it's going to trial. 'cause I don't know which one's gonna settle. And I'll tell you what, I've, I've gone to trial on cases where we've been a thousand dollars apart, which I think is insane. But I've also seen cases where we were a million dollars apart the day we actually gave opening statement and we settled. A case went out in the hall and settled it. So do I know which one's gonna settle? Absolutely not. So do you have to spend that money? And you raised another point. How do plaintiffs establish reasonableness in a trial? I've, I stopped counting years ago when I reached my hundredth jury trial. So I've, I've seen a lot of these. How do they do that? They put their doctor on the stand and they hand 'em a list of bills and say, do these look reasonable to you? And he goes, yeah, I think those are reasonable. That's how they do it. Okay. They, and they're not really an expert. And I've always asked a voir dire the witness. And most of the time the court tells me no. Sometimes they'll let me. But if, but if they don't, let me when I get up and actually go through the list, do you understand billings? Are you an expert on billings? They always say no. And then I move to strike and the court says, eh, it's already in. We'll just let the jury do what they want with it. That that's what happens over and over and over again in trials. So is this unfair to have a windfall? I mean, if, if, if, if you're, I, I want you to think about the elements of fraud. Right? A, a a, a misstatement of a fact. Right. With intent to induce somebody and they rely on it and act on it. Okay? When you get up and tell the jury, my client has 30,000 in medical bills, when you know darn well he's got 15,000 and you're saying that, so they will rely on it and pay you. That's what happens. And that's, it's, it's almost like a sanctioned fraud.

You. Well, no, it's just a point of order. I I you called it out. Senator Weiler, having Mr. Glosser defame and, and say things about trial attorneys in that way. I think he's offensive. I did a, I did a deposition with you as a new attorney. I had a client that was probably 60 years old, had a miscarriage when she was probably 18. And in that deposition you spent 40 minutes grilling her and for you to come here and talk about fraud and, and accuse good trial attorneys of that. I'm offended by that. I don't think that's cool. I don't think it's appropriate. And that's my point of order. Mr. Chair. Thank

Thank you. Thank you committee. Kurt London. I am a personal injury attorney coming from Utah Association for Justice. I'm from Saratoga Springs. I'm a little uniquely qualified to talk about this because I have a law partner who practices in California, this Gardner decision essentially adopted the California model. So we have cases within our firm that are California cases. And what this bill or this law that was enacted in October, essentially, uh, promotes is people not to use health insurance. So they go outside of the health insurance system to then use lien providers that normally are only accessible to people who don't have health insurance. So they get higher bills so they can present the higher bills to the actual judge and jury. It incentivizes people not to use the benefit of the health insurance that they've been paying for. Another thing, I've been in a motorcycle accident and I had a back surgery. I am paying $1,800 a month right now for my health insurance, myself and my family. So you can't call it a windfall when I'm paying every month for that premium and I get hit. What we're dealing with is we're dealing with a victim. Someone who gets hit by someone who's speeding makes an illegal left hand turn. So who should get the benefit of having health insurance? The victim or the person who perpetuates the crime and actually causes that injury. Large number of people too, don't have attorneys. They represent themselves. That's what I did for my back surgery. I walked away with a thousand dollars in my pocket. 'cause I didn't hire an attorney and in fact, I had to pay for my own back surgery. I thought it was a deal. So it's not a windfall for attorneys. We're talking about victims and a large part of those victims try to go up against the insurance industry against themselves. And that's essentially what's happening is that they are operating against themselves without an attorney and the windfall, it's not actually windfall. So if we had premiums that we could represent to the judge and jury showing for the last 10 years that I spent $24,000 a year for insurance, then we might have a discussion. But we don't do that. We just see that adjustment from that health insurance from that contract that I'm paying a part to be a part of. For that reason, I'm asking you to support this bill to get it passed.

Alright. I have a question for you. Based on your experience in California where this is their practice, if if someone doesn't use their insurance, they use a medical lien provider. I, I'm assuming that the defense insurance defense attorneys, then they're trying to conduct discovery on what the, the, the, the lien provider paid to the actual doctor and then they would want to use that evidence to show the lower account. Is it just the same problem without, without using insurance?

Yeah. And you also have providers who hold their own liens like hospitals, for instance. They hold liens. Yeah. Okay. So you have an ER bill that still needs to be paid.

Uh, hi. My name is Spencer Brown. I'm an attorney in Salt Lake. I represent both, uh, defendants and I also represent injured plaintiffs. Um, so I'm against this bill and I, uh, want to bring to your guys' attention a recent case that I had that I think might, um, help you guys understand the issue here. Uh, so I recently had a case a man was injured. Well, he claimed to be injured in a minor car accident. Um, he was advised by his attorney to go to a clinic that specializes in, uh, accident victims. Um, at the clinic, he was seen by a nurse practitioner who gave him a vitamin iv and that was the only treatment he received, and he was billed $13,000 for that. Um, so I personally get vitamin IVs. I usually pay about $150 for each one. So when I saw that he was being billed $13,000 for Vitamin iv, uh, that didn't seem right with me. I investigated the issue and it turns out he spent $0 out of pocket for this $13 or $13,000 bill. Um, and I also discovered that the, uh, the medical company was treating him on a lien where they had a financial interest in, um, that oh, come up the settlement. Uh, so, so as the law currently stands, I can go to the jury and I could say, um, look, this guy paid $0 out of pocket for this $13,000 bill. And I think that that's the way that it should be. Um, because, you know, that shows the actual finances at stake. Um, if this bill is passed, what it's going to allow is, uh, I'm not gonna be able to say that he paid $0 and they're gonna be able to go and say he had to pay $13,000, which is just untrue. Um, and I, I don't think that's right. I think it's ethically wrong. And, um, so I don't think this bill should be passed. I don't think that if this bill is passed, it's not gonna help any of my clients who have been injured. I'm still gonna be able to get them a good settlement because they have legitimate injuries. And I think that this bill is only gonna help people who, uh, are not legitimately injured and they are seeking this questionable treatment at inflated prices. And I just, I don't think it's right and I don't think it's gonna help my clients that are injured. So I respectfully ask that you, uh, don't put this bill forward.

Oh, you want me to proceed? Yes. I, I apologize. Thank You. My name is Joe McAllister. I work for a construction company called Hughes General Contractors and a sand and gravel mining company called Lakeview Rock Products. And, uh, I can tell you I never really anticipated myself getting in the middle of a fight between insurance companies and, uh, trial lawyers. Um, but here we are because I wanted to make one thing very, very clear. And that is that each of us as these large construction companies that you see as you drive up and down the, the valley, we are also small insurance companies that this is against us, the construction industry. We, we have commercial trucks out there on the road. The cost to insure those trucks in the last five years has gone up 162% for us. It's gone up more than that in the last 10 years. And this is just one way to help us control those costs because we insure the first losses, not our insurance companies. We also have self-funded health insurances. Like most large employers. We have over 400 employees. We have employees, their spouses, their dependents. We pay the first dollar, we pay the first $80,000. We, for every single one of those people. And these verdicts, and I will point out this verdict was, if I remember, $7,267 and 77 cents is what we're here over. But much bigger verdicts are the things that are just killing us to put our commercial trucks out on the road to haul materials, to, to build the schools, to build the state funded buildings, to build the, the, the highways. This is killing us. It's the, particularly the audio, the, the auto insurance. We bear every single one of those dollars dollars. I don't have any ill will to, to any trial attorney who goes out there and does the hard work to, to get their clients compensated. I'm not asking you to do anything about our liability. I think we should cover that. No questions asked. What I'm asking is that the Supreme Court saw fit to take an incremental step, not even a full step towards tort reform. And now I am in the position I never thought I would be in, which is coming up to the Utah legislature to fight against a bill that is anti tort reform. I I'm just asking that we leave this as it is. Let's give it a year. Let's see what happens. I understand the next time I trust an insurance company will be the first time. So I, I'm not expecting them to give us a 9% reduction in our insurance rates, but I know what will go down are loss reserves, and I know that will have a massive impact on our business. I know what will go down, which is when there's a $5 million nuclear verdict and I only have a million dollars worth of coverage, the other 4 million doesn't go away. It just puts our trucking company outta business. It's those nuclear verdicts that we're asking you to just leave this, be give it a year. And if we give it a year and it doesn't impact costs, we come back and I'll testify for a bill.

Yes, sir. Um, how much has your premium gone down since the gardener decision?

Uh, we haven't had a renewal since then. We work on an August, so they didn't through July.

So they took the benefit but didn't pass that benefit onto you.

My understanding is that they have told us that the reduction would be about 9%.

Who's they? The insurance company. Which insurance company That's classified. Okay. I don't think it is it, you're not a government entity, you're saying you, you don't want to tell me which insurance company. He doesn't have To tell you. No, I you don't have to, but it's not

Those, those were numbers that I, It's not classified. Those are numbers that were passed to me by, uh, insurance industry group. I, I don't, I haven't verified those at all. Okay, okay. Correct. Even if it was half of that, I, yeah, I still wouldn't. And they would just part of part, if they told me that they would cap it at a 9% increase, I'd take it.

And, and, and part of my problem with this is, look, I'm generally probably the most insurance friendly person up here. I've, I've represented insurance companies. I've done a lot of insurance defense. But part of the problem is something that you said is our Supreme Court moved towards tort reform. And that's the problem. That's not their job. That's the legislature's job that's called policymaking. That's not what Supreme Courts are supposed to do. So I want you to keep that in mind as you look at this. Like, you may love the policy, but it has to be done in the right body. And when a court takes the step to reform things, that's out of their lane. And so that's part of where this is coming from. So I, I just want you to understand that ref, that policy reform should never begin in the courts. It should always begin in the legislatures because we are the policy making body.

Um, I, alright, I I could just be, I'm just a dumb contractor, but No, You're good. But If I understand it correctly, I have read the,

Okay, thank you. Um, my name's Dr. Nate Millard. Sorry, I, go ahead. Yeah. Can you hear me? Yes. Yes. Dr. Nate Millard. Um, I reside in Cedar Hills, Utah County. We have, uh, clinics across the Wasatch Front in Utah, um, that service a lot of these patients, um, that are in motor vehicle accidents. I just wanted to speak to in behalf of, of medical liens and, and really feel like it's, it's not necessarily about inflating the care as much as it is as about access for patients. Um, you know, as we're seeing patients every day that come to our office, um, that may not have insurance, that may not have the money, um, that may have a insurance policy that has a massive deductible that they sign up for a lien so that they do have access to the care. And so, um, when, when, uh, if a lien would be restricted, um, patients don't magically get cheaper care, they would, they just wouldn't have access to care. So I think that's an important point that medical liens are, are big part of, uh, the ecosystem and really help, um, the patient get the care they need. And then in regards to the Gardner versus Norman, I believe, um, insurance companies don't provide the care. So it's, it's tough for me to think that they should be able to set the value. So those are my thoughts and my concerns and, and, um, are in support.

Thank you Dr. Millard. We have two questions. The first one's from me. Um, have you ever lied under oath on the stand in a trial to make sure you got paid?

No. That would, no. Would you do that? Would I, would I say that question again?

Would you lie under oath on the stand at a trial to make sure that your, your patient one so that you could get paid for your medical services? Oh,

I would never Lie. Do you

usually wait until after the trial to get paid or do you get paid uh, before the trial,

After You get, you get paid after. So you're carrying Yeah, I Mean, our clinics for the most part, 90% of it. You're doing your own liens? That's correct. Okay.

Thank you Mr. Chair. And, and Dr. Millard. Um, Senator Mikel here. I'm just curious if you can address some of the risks you take. You, you do, sometimes you do set a, set a price on a, on a lien, but talk about the kind of risk you take when you provide that care and you do that with a lien.

Yeah, I mean, we, we take the risk all the time because we wanna support the patient and get the care they need. And so we supply the providers. Um, again, we don't know at the time, um, if it'll settle or not, but we do take the risk of, of whatever treatment that is, whether it's a surgery, injections, we pay those costs. Um, and so there's a huge risk in, um, on each case.

I have one more question. Do you inflate the cost if it's on a lien or do you have kind of charge the same cost, uh, charge, same price for surgery, regardless.

We have one fee schedule. Um, we do have outside, um, uh, people that look at our fee schedule, but we do take into consideration of, of a lot of things, the risks, the reductions and, um, the time of pay.

So since you're working on some liens, you have the risk that they lose that trial, right? Correct. But you also have the risk that the settlement or the verdict comes in low. Um, have you had to take less than what you charged because the settlement or the verdict came in lower than expected?

Yes, sir. Okay. Thank you.

Brian Stoddard, I'm a defense lawyer. I've been a defense lawyer for about 12 years. The Rodriguez versus DD case was actually mine that I tried to a jury and, um, I'm, and for Senator Escamilla, I am not opposed to people getting lien care and I think they sh they should be, have access to it. The, the issue in that case was whether the jury should be allowed to hear that there's a risk of a financial bias on the part of a surgeon. And in that case, the surgeon was paid by a third party litigation financing company and he admitted that they'd sent him cases before he's operated on 'em. He's provided favorable causation opinions that help the person recover. And that after this he, you know, him providing, um, causation opinions in his records that the surgery was related to an accident, they would continue to send him more. In other cases, we've had surgeons testify that when there's a third party lien holder involved, they get paid more than their normal surgical fee. And they like it because they can get paid a little bit more and they get paid faster and there's less red tape. I've had them admit that to me under oath. So there is an advantage for a surgeon that wants a little bit of extra money or maybe doesn't have a full workload. I had another surgeon tell me he started doing the lie holder work because he was light on work. And so they can do it all day long. But I think the jury should be able to understand that there is a, a risk of a financial bias on the part of the surgeon who, who thinks, okay, they are getting paid upfront for the surgery. They do, but there's an understanding and assumption that they have to provide in exchange a favorable causation opinion that helps the person win or settle their case. So if the jury can't hear who's paid them and why they're there, um, it's not a fair picture. And so like when we hire an expert to evaluate and take a second look at everything the, um, the other side gets to cross-examine them on who's paid them and how many times they've been hired by defendants. And so, um, does

This bill prevent you from asking an expert how many times they've been hired by plaintiffs?

No, but it would prevent me from trying to impeach them on the fact that they gotten paid by a litigation financing company that has the stake in the outcome of litigation. This does go beyond the Gardner. It, it doesn't just redirect from Gardner, it goes beyond that. That's why I have a problem with it, because I need to be able to impeach a doctor and, and tell the jury this doctor has done so many surgeries with this same funding company and has earned tens of thousands of dollars. The one surgeon involved in that case, um, is widely known by the defense bar as somebody who will operate on almost anyone. And, and he has made so much money on it. And so I think the jury should at least know.

I'm not saying everyone is. No, I'm saying there, I I think you all are intelligent enough people to know that there are doctors out there who are unethical. Are

Sure. Or is it just the doctors? Absolutely. Everyone in every field. If, if I, if anything has taught me, if I've learned something as a lawyer, I've known that experts in every field can theoretically be unethical, even legislatures and lawyers. So the, I don't think a jury should be insulated from, from the idea that, wow, this doctor might actually have a financial stake in this.

So I've got two questions. Well, we've got two questions for you real quick. So first of all, I, I've, I've handled condemnation, real estate condemnation cases, um, and I've been, I've had expert witnesses who are appraisers who've done two or three or 400 appraisals for udot in condemnation cases. And I would argue that they know if they come back too high, UDOT will stop using them as an appraiser. How is that any different than what you're describing? Isn't that the nature of expert witnesses? They're hired guns and they're always subject to those arguments through cross-examination?

Well, they're, they should, that's the point. They should be subject to cross-examination. Well, but

Witness well you just said you could ask them how many times they're hired by plaintiff's attorneys. Oh yeah,

Yeah. This doesn't address that. I'm not

Saying, and then you can argue to the jury, this is this, this is a plaintiff's expert. You shouldn't, you shouldn't take their opinion. Why can't you make that argument if this bill passes?

I can, I'm not saying that. I'm saying what this bill does is it stops me from saying, doctor, you were paid to do the surgery by Intermountain Surgical, right? Yes. And they've sent you cases before where people were getting surgery on a lien. Yes. And they sent you cases after this. Yes. And you provided a favorable causation opinion.

And and likewise, the plaintiff's attorney can't ask, your bill was paid by, uh, your insurance company. Right. So that, that, that goes both, that door swings both ways.

I'm not sure I'd catch your point there.

The p can the plaintiff's attorney ask the dri the defendant if they have insurance and if the insurance paid or would provide coverage for any of the bills?

I think you're getting to a philosophical, I'm not thing that this I'm not, doesn't address.

I'm not You're saying it's unfair that you might be able to not ask a question when it's already the fact that the plaintiff's attorney can't ask questions as well regarding payment. I'm talking

About the bill saying you can't, I know what you're talking about. Teach them On their credibility.

You are saying something that's related to

Collateral source. There's A Juab jury instruction that says if you've heard anything about insurance,

You're not, I'm just saying both sides have questions. They're not allowed to ask if this bill passes.

But when a jury's insulated from the idea of a liability insurance

Yeah, I I understand that's the part you don't like.

I'm, I'm fine with the jury instruction that says you're not to consider if this verdict will be paid by insurance because then the jury thinks,

But it's more than that. You can't, I mean, I've had so many judges strike questions I couldn't even ask a question because it could lead three questions later to insurance. But I'm gonna go to Senator Escamilla.

Thank you Mr. Chair. I just wanna maybe go back to the, because I, we are getting very legally, which is great, but what about access to people, you know, access to, to care? Because what we're missing here is nobody seems to care about access on individuals that just had a traumatic experience in their life. So let me ask you the question. 'cause right now, if someone is completely uninsured, right, what's the access process? So you're, you know, we're claiming this physicians, which are again, are licensed by double like the bar license you guys as attorneys, there's a threshold that you expect of people. So you could always file a complaint if you feel they are, you know, outside of their scope of practice and doing something unethical. We have that mechanism in our state. And it, I do take offense because I do spend a lot of time with great physicians and providers that they are okay. Risking their entire license on unethical work. Now to your point, there're always gonna be bad apples in the whole mix. Okay? But I'm trying to now navigate this process. So if someone is completely uninsured and whether they get an, uh, an attorney or not, they may not hire an attorney. They're on their own navigating this because at fall had I know a cap of 30,000, you know, limit of 30,000 and or hires an attorney. Like, where do I go and get care? I'm, I'm hurting right now. What do I do?

Yeah, this doesn't address that.

So you're saying it doesn't, that the current, the with the garden situation, it doesn't send a chilling effect on how, who's gonna take the who, who pays for that? If you are uninsured, who pays for your care when you have an accident while you're waiting for settlement?

They can still get that and people can still have liens. It's the same process. They can still do the

Lien. Okay. And you're telling me that a lien company, after you wanna do this with a Gardner case, they want to take what, how is this are for-profit companies? So what, how are you not cutting them from being part of the solution?

All I want to do is have the jury get the picture of some doctors and some providers that are in the business to make money off of liens. Meaning they, their, their business model depends on them collecting more, um, in certain cases. And then if they lose some, then they take a hit, they can, these people can still go get the care where The, They can still get the lien. I'm just saying. So the liens should be this bill and Gardner doesn't affect them from doing that. I if the, if they want to, if the plaintiff attorney wants to build up the credibility of that provider and say, you're providing this on a lien. Yes. And then they get to say, well, why would you do that? Well, they wouldn't have access to care otherwise. Great. And I could say, well, you have an incentive in the outcome of the case. The jury can weigh their credibility. The jury can decide this is a good doctor, or this is a doctor that's out just to make money at every,

Every turn. And you're saying the bill will preclude that from having

Yes, the bill precludes me from using a lien, the existence of a lien to impeach the credibility of a doctor.

But you can still ask the questions through your process if you go to court. Okay. Because what is so beautiful about this whole process is that you're talking about probably what is the percentage of cases that go to court?

Oh, that go to a jury trial? Yeah. Oh, probably less than a 1%.

Okay. And what about the rest of the cases when now you have an insurance company quoting that decision of Garner as people are trying to navigate this process and saying, no, we don't have to deal, you are lying on your numbers because there's potentially a lien involved. Those are what is coming out of insurance company. So tell me, how do I, how do we deal and help the 99% of the cases that are not gonna be in trial? 'cause you just gave me a thank you for answering that. Yeah. How, how is this like, gimme bigger picture because as legislators, we're generalists Sure. And, and very ignorant for what it seems to be perceived in some of these comments. How do, how do we help the people that 99% of those cases that are, and then not all of them are uninsured. So a big portion of them may be uninsured and we're gonna have more now with a big, beautiful bill.

Okay. I need to clarify. The Gardner decision doesn't affect people who want to go get care on a lien. The Gardner decision doesn't talk about that at all. The Rodriguez versus DEI decision only gave an attorney like me the ability to impeach the credibility of a surgeon. The jury can think I'm up in the night if they want, if I try to argue he is biased and they can decide that he's not.

But, so, but the decision is sending a chilling effect. So as a legislator, I want you to understand my position 'cause you're speaking as an attorney that practice this type of law and that's great. Thank you for your service. My job is to make sure my constituents are protected. Yeah. And get access to care. And what we're seeing now since this decision happened is people are now hesitant, less people wanna provide care because it's like, what is this? It's like a witch hunt. And I'm trying to find that, that to your point, like, hey, we're not trying to make it more difficult for people to get transparency, but in the system that you are so familiar and everyone that's in this room is they need, we all know how the system, how this process works. And it has been working like this for the last how many years. And now suddenly, because you know, now it's like, nope, it was horrible before I, you guys had very successful firms and practices. So I, I'm just trying to figure out what the problem is with a bill that's trying to define, which is our role. The Supreme Court decision, I think went above and beyond what we had as an intent in statute. We now, our job is to fix that. That is my responsibility as a state senator. And, and we're trying to find that. And I think this gets there, but I'm trying to hear your concerns and you're saying, look, I'm not, you're not allowing me to do my job. And I'm telling you, well, right now what we have is not working and people are being impacted. Regular humans that got in a crash coming out of work and now they don't and they're uninsured. They can't access care because people are like, man, that new decision is making it really hard. 'cause liens don't wanna be playing in this game of your, no one is gonna wanna take the respon the risk. It's a risk. This is a, a risk. 'cause nobody knows what the settlement's gonna be. The insurance can say, I'm just gonna pay $5,000 and that's it and move them from there. Right. And that's where you come in with your skills as an attorney if you're representing them. But the people that don't have anyone representing them, and now they got someone was holding their lien, right? And now they're like, no, no, um, no, you're lying about how much you say this is what we're, what people are getting in letters. Have you seen those letters?

I don't know what you're talking about

From insurance companies to people about No, because of the Gardner decision in Utah, I really do not believe that that's the appropriate amount of care that you are telling us had just happened. So

Respectfully, I think you're talking about two different things. So Gardner's address whether a person who has health insurance, who got discounts on their hospital bills, should be able to recover the full sticker price or what their health insurance helped negotiate them. You're talking about people who are uninsured who need to go get care on a lien. I think that's a separate thing. If they want to go get care from a person, from a doctor that's providing care at a reasonable price and is, and is providing reputable causation opinions for them, great. If I try to impeach that doctor at trial and it falls flat and they recover, that's a good result. And you're saying that this will not allow you to do that. This bill does not allow me to even impeach somebody for their financial bias. It's just like any lobbyist in, in this room or in an election. You know, when you're, when politicians running and they're, and they're, the accusation is that, you know, this industry has contributed a bunch to their campaign. There's a risk for financial bias. The public should know that when they vote for people, juries are the voters. They're, they need to know if they're gonna vote for that surgeon who's in who, uh, who paid them. That's my point. I need to be able to do that. If the jury thinks I'm in, that's a bad point. They can dismiss me. I just, I don't think I should be limited in my impeachment efforts of a surgeon who, when my expert takes a look at what they'd done, they would say, gosh, this guy might lose his board certification if this case came before the

We, we need to More, I'm thinking, yeah. Sorry Mr. Chair and I usually don't do that, but I'll, I'll just end by saying I think your, your answer to what your, in, within your framework of, of work, of that 1% cases that you're talking about, you're still dismissing the reality of everybody else because this has created a chilling effect. I'm not aware of that. And we're, see, but I'll, I'll share more than happy to chat with you outside. Thank you Mr. Chair for that.

Um, I, I think a lot of what you address, you could, you could, you could cover in a motion in limine and or an independent medical examination with your own expert. But we want, Senator Mikel had a question for you.

Yeah. And, and Brian, you, you've always been fair to me. You're, you're a good attorney. This is just a straight up question. Um, Senator Cullimore is trying to thread the needle to, to make sure nobody's taking ground from Gardner. Not the insurance guys. Not, not you a j um, that, that's my commitment as well. One thing you said as this goes beyond Gardner and the bill, I, I want you to be specific, but if it goes beyond Gardner, I know Senator Cullimore has committed to keep it, to keep it at Gardner and, and to go back. So I, I just, and and maybe that's something you need to, to shoot us in an email, but I'm, I'm happy to see that because that, that's the idea of this bill is to keep it, keep it back to Gardner back before the Supreme Court set this new policy. Yeah.

So in section subsection three A of 6 21, this is saying evidence is inadmissible for any purpose, including the impeachment or credibility. And then on that list, it's talking about whether provider has a lien on and vi sub subpar vi I'm just saying, just let me, let me impeach the doctor if, if they have a lien or whoever it is, a physical therapist or something, or a chiropractor. I mean chiropractors do it on a lien all the time. I get it.

What what I'll do is I'll, I'll go back and look at that. 'cause I, I wanna, I wanna be clear where I'm at, uh, what, what I like this bill to be different. Yes, for sure. But the commitment that Senator Comore started with is, is we're gonna take this back, um, prior, prior to the Supreme Court setting the policy. So that, that's what, that's what I care about. And, and I'm happy if, if you wanna send me something to look at where you think that the language goes beyond, uh, goes beyond pre Gardner. That, that, that's what I'm asking for. So that, that's my question. And the

Problem is I'm interested in that too. The, I'll just say it's overturning the Rodriguez versus Didi decision and I don't think that's what ca Senator Co mo Saidi wanted to do, but it would Okay. Help. Yeah, we'll look at it.

Yes, my name's Kara North and I live in Utah County. Can you hear Me? Yes. Great. Please proceed. Um, thank you. I appreciate the, uh, the chair and the committee giving me the opportunity to speak and I intend to be brief. I have represented, um, injur individuals in the state of Utah for over 15 years as a personal injury attorney. With regard to the prior testimony from the gentleman who was a contractor. I thought it was interesting that if you listen to the heart of what he said, he stated that even when he, as a business owner wants to resolve a claim and accept liability, hands down, insurers are often overriding the wishes of their, in their insureds and forcing cases to trial. Sometimes, as Mr. Glazer pointed out, over the difference of a thousand dollars demonstrating that insurers are often continuing to put their own financial interests over those of their insured. I also must respond to Mr. Glaser's comments that being injured is not a windfall period. In my experience, no client has ever felt fully compensated by their settlement or grateful for their injury. Every injured person I have represented would gladly forego any settlement to return to their pre-injury life. Finally, in addition to being an attorney, I am a Utah taxpayer, more than 325,000 Utahans rely on Medicaid and 474,000 rely on Medicare for those individuals, recoveries would be limited to what those programs have paid for their care post Gardner. This would create a two-tier system for compensation that undervalues the injuries of our already vulnerable residents. Reduced settlements would make it more difficult for those programs, tax, fa, taxpayer funded programs to be reimbursed and would further shift the cost of the wrong doors onto the public. For these reasons, I'm requesting that on behalf of injured utahns and taxpayers that this committee respectfully support SB two 11.

Thank you Jeff Rogers speaking on behalf of Workers' Compensation Insurance. Um, first I wanted to express, uh, our appreciation. We've had many discussions with, uh, Senator Colmore. I'll be, I'll be quick. Um, we all know how much you loves Senator Colmore. Thank you. Uh, WCF just wanted to clarify, uh, our interest in this WCF no longer offers simply workers' compensation insurance. This year, 19% of our premium that WCF writes for Utah businesses will be in other commercial lines of insurance. And we anticipate that percentage to grow in the coming years. Um, we, we do have concerns with the current draft of the bill, however, and in the four seat that's my problem. My apologies. I was texting, I, I I made, I I made it really clear, but go ahead. Okay. We do have concerns. However, we are, uh, having those conversations ongoing with Senator Colmore and we would hope to, to continue those.

Yes. Um, my name is Adam Anderson. I'm in Utah County. Um, and I'm a currently practicing chiropractic physician. So I'm kind of here to explain how this would affect some of us doctors that are treating people on liens and, and working with those who are injured in accidents. So, first Rodriguez kind of changes how doctors are treated in the courtroom, and in my opinion, not a good way. So many injured patients can't pay for their care upfront after an accident. Many are unable to even work for a period of time and just trying to keep their families fed. So, like many providers, sometimes I agree to treat those patients on a lien, meaning I wait till after the case is settled to be paid. So after Rodriguez, that decision can now be used to suggest that I am biased and that I'm financially motivated simply because I agree to help the patient. So that's, uh, frustrating and unfair in my opinion. And I still provide the same care. I'm still required to be paid for my work and my clinical decisions don't change. But the risk of having my I integrity and expertise question makes me and other doctors sometimes think twice about treating those patients at all. Um, second, Gardner allows health insurance companies, not doctors to decide what medical care is worth. Uh, as a provider, I can tell you what an insurance company pays, has nothing to do with the quality of care that we provide, um, or our medical judgment. So two people injured in the same accident will have very different injuries. A number set by insurance companies who have not physically seen or examined the patient are set by contracts and in many cases, bargaining power, but not by what it actually takes to diagnose, treat, and help those patients recover. Um, I don't want insurance companies redefining the value of my work and the others in our field, um, especially in cases where someone else caused the injury. So, you know, if this stands, it's kind of clear to us that, uh, insurance companies will decide what we're worth or what we did and, and the value of the treatment that we've provided, and possibly tell us that we're biased and, and that, uh, to say it bluntly that the few are ruining it for the many that are trying just to take care of patients. So it, for those reasons, I hope that you guys will support, uh, SB two 11.

Thank you, Senator. Mr. Chair. Um, I'm Rick Clasby. I'm the Executive Director of the Utah Trucking Association. We're here to oppose this bill. Our primary concern is that actual evidence cannot be presented in, in determining damages. Um, in, in our situation, practical situation. Much like the, uh, the contractor who spoke before me, our, our members range from traditional insurance coverage to captive type insurance coverage where they, they front, uh, these damages and then self-insured. Uh, so our concern, of course is with the cost of premiums, the cost of damages, uh, the, the, just the fact that it's going to cost more if we're not able to look at actual costs as it applies to damage. So we're, we're opposed to the bill for that reason and, and would encourage you to, uh, vote against it.

Yeah. So, so the intent when I opened this bill file was to just

I didn't, I didn't quite get it out

Okay. Uh, The intent was just to restore the policy back to where it was pre Gardner and to the extent that this bill goes beyond that, I am, I'm certainly open to discussions, uh, the, the three A suggestion. I'm, I'm happy to work on that subsection four. I've heard some concerns about that. Happy to work on that as well. I, I probably need to better understand the concerns in subsection four. I'm reading it to where it could pre, I certainly don't want to make settlements more difficult. And to the extent that that precludes settlement options, then, then I, let's, let's fix that.

Alright. Thank you. Um, yeah, I am getting texts from state risk management from the cities and towns from my cities saying that this does go beyond. So, um, I take you at, um, word value, but I would like to see if this passes outta committee today. Some, some, um, some work on some amendments on the floor. So, 'cause I'm, I'm all, I, I'm all on board to kind of reinstate the status quo. Uh, but if it goes beyond that, that's gonna make me rethink that, my support.

Yeah, I'll, I'll make the motion that we favorably recommend SB first substitute SB two 11. Alright,

Okay. Motion to adjourn. All right.

the side of expanding tort recoveries. Uh, I I like to think of my legislative career working on behalf of business certainty, liability reform, and responsible limits on litigation. But I do believe in predictability. I believe in reasonable guardrails, and I believe in illegal climate that allows u Utah businesses to thrive. But I also believe in something even more fundamental. I believe that public policy in the state of Utah should be set by the legislature and not writ rewritten by judicial activism. And that is why two 11 is necessitated today. A few months ago, the Utah Supreme Court issued its decision and Gardner b Norman. In that case, the court fundamentally altered upended the way damages are calculated in personal injury cases involving insured plaintiffs for decades and probably even longer. Utah has operated under a well understood application of the collateral source rule. The pri this principle is simple. A wrongdoer does not get the benefit of payments or discounts secured by the injured person. If someone is hurt through somebody else's negligence, the focus is on. The harm caused not on whether the victim has insurance to cover it. That was the settled understanding. Businesses understood it. Insurers understood it. Plaintiffs underst plaintiff's attorneys understood it and defense counsel understood it. It was part of the legal landscape of this state. And then the court changed that, and the consequences have been immediate. In practical terms, it allows insurance companies to reduce what they pay in injury cases based on private negotiated discounts between insurers and medical providers. It shifts the benefit of those negotiated reductions away from the injured Utahans and towards insurance carriers. So this is big money. Obviously. This, this decision does not represent a minor procedural tweak. It's sign it was a significant windfall for insurance companies operating in Utah. And this is why they've lobbied hard against this bill. This is why they've spent big money on campaigns. This is why we're hearing phrases like this will increase your grocery bills, this will increase taxes, this will hurt families. But these are slogans. This bill does not create a new cause of action. Is does not ex expand damages beyond what Utah has always recognized up until, uh, this court decision. It does obviously does not impose a new tax. It does not rewrite decades of tort law. It simply restores the legal climate to where it was before judicial intervention. So we've, we've never really been the most plaintiff friendly state. We're not the most insurance friendly state. We've Utah has occupied a reasonable middle ground. We believe in accountability. We believe in fairness, and we believe in stability. The Supreme Court tipped that balance on its own volition in favor of insurance companies and to the detriment of Utah families and Utah healthcare providers. So we're not really here to debate the decision, but when a court announces a rule that fundamentally alters longstanding policy, it's our role, it's our responsibility as a legislature to respond. Uh, so two 11 is that response. Um, I've heard opponents point to so-called egree egregious examples or extreme hypotheticals about inflated medical bills or unreasonable charges. But let's be, let's be clear, those arguments could have been made before the Supreme Court decision and they can still be made after this Bill passes. Courts retain their de their role in determining whether damages are reasonable and nothing, uh, reasonable and necessary. And jurors do as well. Nothing in this bill strips that authority. What this bill does though is it prevents defendants from introducing evidence of negotiated insurance discounts, write-offs, liens, or collateral sources to drive down recovery. So again, it simply restores the rule as it has existed for decades in Utah. Um, so I just want to encourage that this bill is not radical. It's simply restorative. It returns Utah to the place it stood just months ago. It returns stability to a legal doctrine that is operated here for decades. It reasserts the legislature's role in setting public policy and it rebalances the scales between insurers and insured Utahans. Um, and with that, I respectfully ask for your vote and open any questions. Thank You. It's there. Discussion to the bill.

I'll move that. We read first substitute Senate Bill two 11 for a third time, And the question is, shall first substitute Senate Bill two 11?

Senator Wilson. Thank you Mr. President Pro tempt, uh, motion to encircle, uh, Senate bill 1 57. First substitute. The motion is to encircle first substitute Senate bill, which number?

Thank you Mr. President Prote. Now I need to, uh, motion that we delete embody and title. Title first substitute Senate bill 1 57. Replace it with second substitute Senate bill 1 57. And that motion is in order.