The Phantom Damages bill has been called a bad bill by more than one senator and representative; however, Farm Bureau continues to push it through its puppets Kelsey and Tracy because it takes benefits away that you paid for and gives them to the wrongdoer that just drunkenly took your family out at a red light which in turn awards the insurance company that insures the wrongdoer.  In essence, big auto insurance wants to hide its existence from a jury (we should all know by now rarely is there an auto case being tried that auto insurance is not involved) while laying out on a table the benefits you paid for through your own health insurance and snatching them up for their wrongdoer.

This will hurt Tennessee victims.  Also, anyone that feels that this will not hurt Blue Cross Blue Shield is sadly mistaken because several claims for which Blue Cross Blue Shield would receive payment will not be pursued because of the value of the victim's claim. 

This will hurt hospitals as hospitals claim liens for full amounts due and the amount collectible will be dramatically reduced and not available to pay the hospital liens.

This crap should have been brushed off before it even reached print on a bill; however, the voters for this bill represent big auto insurance and not you. When the vote comes out, I will post it on my next commercial...with names. You'll see the ones that represent you and not big auto insurance. Just as bad all the bills to make judges stand election and non-attorneys  to be judges. Let's face it...the only reason that's being proposed is to make them beholden to campaign money and special-interests. 

I am very proud  and honored to put victims lives back together that have suffered from the actions of wrongdoers and detest any action by those who would benefit for their wrongdoers at the cost of victims.

Anyone wishing to discuss this issue face-to-face knows my address. 

Jay Kennamer
McMahan Law Firm 

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But most importantly, it will hurt the back pockets of trial lawyers, right Mr. Kennamer? Is that why you are so upset and drew a line in the sand in your last sentence for anyone that disagrees with you?

Mike Willingham 

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After reading the missive by one of the firms that seems like it used to be on the back of the phone book, I Googled the phrase “Phantom Damages bill” to try to figure out the virtues of what the poster was extolling. 

Based on what I read (and I’m not an attorney and I don’t play one on T.V.), I found a recent decision on the matter interesting. The concept of “phantom damages” were hashed over in Howell v. Hamilton Meats and found to be a steaming pile of refuse by the Supreme Court of California (08/18/2011). The court found (6 to 1) that “The judgment of the Court of Appeal is reversed.  The matter is remanded to that court for further proceedings consistent with our opinion.” 

The court said “When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person’s health insurer, an amount less than that stated in the provider’s bill.  In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider’s bill but never paid by or on behalf of the injured person?  We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.  (See Civ. Code, §§ 3281 [damages are awarded to compensate for detriment suffered], 3282 [detriment is a loss or harm to person or property].)” 

So, putting that in real world language (and I’m sure some brightsky is going to correct me), if the hospital billed you a million bucks for seven aspirin, but your insurance company and the hospital agreed upon a reduced rate of $1,000, then your damages were $1,000, not the rack rate of $1,000,000.  Again, I’ll stipulate that I’m dumb as a box of rocks but I think that plaintiff’s attorneys often base their fees on a contingency percentage basis vs. an hourly rate. My gut reaction on that rate is 1/3 of the award but when Googling for specific numbers, everything I saw said between 30 percent and 40 percent. Note I understand that number (and do not begrudge it) based on the reasonable likelihood that the attorney may spend thousands of hours (as well as money out of his own pocket) and come up with zero if they lose.  

Going back to my example, would one of the reasons the attorney might be pushing for this law to get canned be because of the following math?

1.  Fees for award of $1,000,000.00 based on 1/3 = $333,333.33 

2.  Fees for award of $1,000.00 based on 1/3 = $333.33 

Put another way, let’s say a friend says “Gee…you were so helpful for me in helping with getting my kids home from school, go have a night out on the town and give me the bill.” You then go to a nice restaurant, get a bill that says $497, realize that is not the correct bill and only pay $49.70. You then take the original bill for $497 and give it to your friend and ask him to pay you the $497 rather than the actual amount you had to pay. 

In the end, the question becomes, should the defendant benefit from these lower negotiated rates? Or should the court award of tort damages to an injured plaintiff for medical expense equal the medical provider’s standard or customary charge? The 6 to 1 decision of the California court seemed to say you should only have to pay what you had to spend….not the rate that you never actually paid. 

Arch Willingham
Chattanooga 

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Arch, 

Sarah carelessly sets a fire that burns down Anna’s just-built (at a cost of $50,000) barn. Leila and Elizabeth take pity on the dejected Anna, and organize a “barn bee,” erecting a structure similar in every way to the one destroyed by Sarah’s fire. Should Sarah be nonetheless liable to Anna in tort for $50,000? Why should Sarah, as the negligent party, enjoy the benefit of Leila and Elizabeth’s largess? 

Wilson von Kessler
Lookout Mountain, Ga.