Senate Judiciary Committee

February 5, 2025

 

HB 1204: Limiting medical damages to amount actually paid (Passed)

Senator Alan Clark Let's get started or we're calling this meeting to order, whichever you prefer. First on the agenda is Senate Bill 5. Senator King here? I don't see Senator King. So Senate Bill 6 is also Senator King. House Bill 1071. Is Representative Richardson. Is that right? No one here to present House Bill 1071. Then we're going to dive right into the fun. House Bill 1204, Representative Eubanks, Senator Irvin, if you all would introduce yourselves.

 

Representative Jon Eubanks Representative Jon Eubanks, District 46.

 

Senator Missy Irvin Good morning, members of the committee. Senator Missy Irvin, District 24.

 

Senator Alan Clark Y'all are recognized to present your bill.

 

Senator Missy Irvin Thank you, Mr. Chair. Thank you, members of the committee. I would also bring Justin Allen to the table, if that's possible.

 

Senator Alan Clark Sure.

 

Senator Missy Irvin If you want to go ahead and state your name for the record.

 

Justin Allen Good morning, Mr. Chairman and Committee. My name is Justin Allen. I'm a partner with the law firm of Wright, Lindsey and Jennings.

 

Senator Alan Clark You may proceed.

 

Senator Missy Irvin Thank you, Mr. Chair, members of the committee. Perhaps the most ancient symbol associated with the law is also one of the most familiar. And those are the scales of justice. The scales of justice symbolize the impartial weighing of evidence and facts, and a legal case representing the idea that justice should be balanced and fair by considering both sides of a dispute equally. Essentially, it means that decisions should be made by carefully considering all the information without bias. 

Balance and fairness are the key components. The scales of justice represent the need to balance the evidence and arguments from both sides of a case to reach a just outcome. The language of this bill is simple and it's clear. It seeks to ensure that these scales are balanced based on facts, and the exchange of actual damages incurred and paid. Rates are negotiated. Contracts for those rates are signed. That's how medical billing claims payments from third party payers function. It is unreasonable, then, to ignore this reality of negotiated payments, legal contracts and actual receipts of bills paid with the ability to seek damages for a payment or claim that virtually never existed and doesn't exist. 

The scales of justice are not balanced, because there is nothing fair in seeking a monetary award that didn't truly exist and was never paid. For example, in Dale v White, the plaintiffs claimed $8,937.95 in medical expenses for an emergency room visit. But the statement from the hospital showed an amount owed of $0. The plaintiff didn't make any payments toward that amount and testified that he had no intention of paying it. The Arkansas Court of Appeals ruled that the plaintiff should recover the $8,937.95 because of the ruling in the previous case of Montgomery Ward v Anderson. So the actual loss to the hospital was $17,875.90 because they were never paid for the actual services rendered, and then had to pay the medical expense that appeared on paper because of this flawed ruling in 1998. How is that fair? 

Currently one side of the scales begins with added weight, when damages that were never paid are allowed to be considered for recovery. This bill simply rebalances these scales of justice to ensure fairness. The mathematical principle that equations must be equal is called the law of equality. It essentially states that both sides of an equation must always have the same value represented by the equal sign. It's a mathematical principle that we all accept that the equation on both sides of the formula must be equal. Five equals five, a equals a. That is the mathematical principle of equations. It's physically demonstrated by weights and scales. That's how we get the scales of justice. They're based and founded literally in a mathematical truth that we accept. 

And this is the exact principle that's represented in this bill. It is stating clearly that recovery of damages for past necessary medical care, past necessary medical treatment, or past necessary medical services received includes only those costs actually paid by or on behalf of the plaintiff, or that remain unpaid and for which the plaintiff or any third party is legally responsible. There are so many reasons why I support this policy change. I have seen firsthand the effects of having no guardrails in place and the effect it had on rural health care, limiting women's ability to deliver their babies close to their homes. It is a fact. I've seen it and I've lived it for the past 30 years. It also jeopardizes jobs, thousands of jobs when malpractice insurance companies pull out of the state of Arkansas, and that has happened before. I saw it. I witnessed it. 

My hospital was left without coverage and literally came within hours of having to ship their patients to other hospitals and close the doors to their E.R. and to their hospital. It is personal for me, but it should be personal for all of us. And all we are asking today is simply for you to vote to rebalance those scales of justice, to restore the proper administration of justice in these very specific cases. It's really that simple, and I'm happy to answer any questions.

 

Senator Alan Clark Questions from the committee. Senator Stubblefield.

 

Representative Gary Stubblefield Senator Irvin, you said you've seen many malpractice cases pull out of your hospital?

 

Senator Missy Irvin No insurance company. We had a malpractice insurance company that actually pulled out of the state of Arkansas that left our hospital without any coverage. And the deadline was at midnight, and they literally came within hours of having to shift their patients out and closing the doors to ER.

 

Representative Gary Stubblefield Based on malpractice cases?

 

Senator Missy Irvin It was their malpractice insurance carrier. And because of the nature of what was happening in the state of Arkansas, they pulled out of the state of Arkansas. They just weren't going to cover those anymore.

 

Representative Gary Stubblefield What was happening in the state of Arkansas?

 

Senator Missy Irvin We had a lot of cases that were a litigious nature of atmosphere. When you don't have policies and you don't have any guardrails in place like one we're asking for, then malpractice insurance companies think it's a liability to cover anybody in the state of Arkansas. And you're seeing the same thing happening right now with property and casualty insurance companies.

 

Representative Gary Stubblefield Are there large cases of doctors committing malpractice?

 

Senator Missy Irvin No, sir. Actually, no.

 

Representative Gary Stubblefield That doesn't have anything to do with it?

 

Senator Missy Irvin No, it happened to my own husband, who is a physician, and he never had a case against him. The company decided to pull out of the entire state of Arkansas. It didn't matter individually. It's just that the whole company decided they were not going to cover anybody in the state of Arkansas, and it happened. So it left us scrambling. It left the hospital scrambling. It left a lot of people scrambling. It happened. And so I think it's really, really critical that we have guardrails in place, policies in place that are reasonable, that are fair, and that speak to, like I said, a fairness and a balance of what is actually a damage that's actually paid and what can then be recovered.

 

Representative Gary Stubblefield And how many states have passed similar legislation?

 

Senator Missy Irvin Yes, sir. I do have that. We have many states that have passed legislation similar to this.  This bill that's before you is based on the Texas law. Montana in 2021, Florida in 2023, Iowa in 2020. Texas, which this is very based on the Texas law, enacted a statute indicating that recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. Oklahoma is another state that has followed suit, as well as Idaho, North Carolina, Louisiana, Michigan and Connecticut.

 

Representative Gary Stubblefield And have insurance premiums decreased in any of the states that have put this legislation into place?

 

Senator Missy Irvin I don't have that information specific to those states. I can tell you, as a rule of thumb, I don't think insurance premiums do arise.

 

Representative Gary Stubblefield Has the overall economy improved in any of these states because of passing this legislation?

 

Senator Missy Irvin For me, Senator Stubblefield, this legislation is about seeking fairness and balance. It is about seeking the understanding that when you pay for something that is actually the services rendered, and that's the amount that was paid. And so being able to seek that is proper, but being able to seek more than that is not proper when it comes to actual damages.

 

Representative Jon Eubanks Senator, if it's alright, I would like to chime in on that one. You know, one of the things that we look at when businesses decide to locate to a particular state is they look at the overall business climate and see how friendly it is to their operations, whether it's the rules and regs, tax policy, there's a whole host of reasons why businesses locate to a state. 

And I would contend that even though Arkansas has a fairly good business climate, we have states surrounding us that have enacted these types of laws, that it enhances their climate to the point that it could be a deciding factor whether a business or industry would locate in your state. So would the economy improve? Well, I would say that if you are attracting business to your state, then yes, your economy is improving. You have opportunities for your citizens for employment. You have increased tax revenue. 

Now, with regard to insurance premiums, that was brought up when we presented this in the House committee. We all know that there's a lot of factors that go into why insurance premiums go up. I would contend that by doing nothing, that that increase is going to be more than if we enact this legislation, and that I believe that we should try to do everything possible to try to limit the increase of insurance premiums or the burden on small business in our state. 

Is this going to be a cure all? Absolutely not. But I think just because we may not be able to measure exactly what that number is, I don't think that's a good enough reason not to do anything at all, especially when there's over half the states that have enacted similar legislation.

 

Representative Gary Stubblefield There's a lot of things that we cannot put down in numbers as far as are accurate. But also, I understand that most states, including our own, have a time honored principle to take care of the least of these. Those of the least of our citizens. The ones that need the help the most. And this bill seems to me, it appears, the perception of this bill seems like it goes against that time honored principle of taking care of the least. Just from the surface. The way the average individual in my community would look at it, if they read it, they would say, well, why am I having to pay an insurance company for the little insurance I've scraped up over the 40 years of my life? 

Why am I having to pay an insurance company that, when I'm barely getting by as it is? Because most people look at insurance companies as huge conglomerates, big money, big pharma. That's the way they're perceived. And a lot of people are going to perceive this bill in much the same manner.

 

Representative Jon Eubanks I think I would take exception to the implication that you're suggesting that maybe I'm not for the little guy because I don't have any interest in this on one side or the other, whether it's supporting the insurance industry. I'm not a big fan personally, but I think that what this bill does, it does affect the little guy. Because by the information supplied by the National Federation of Independent Businesses and the US Chamber of Commerce, that the burden on the average family in Arkansas because of this is about $3,000. It was $2,942,  I believe. And that varies across the state. But so that is a burden on individual families.

 Now when you talk about how this may affect the small person, I assume you're talking about somebody that is injured in a claim. All we're saying is that the medical side of the damages should be limited to what the actual payments were. That's it. The other damage is still stand. We're not saying that they should be denied what they deserve. We're just saying as far as calculating the medical side of it, the medical damages side of this suit, it should be limited to what was actually agreed upon as full and final payment. If they deserve additional pain and suffering or whatever, then by all means, I believe they should get that and it should be covered under those other damages.

 

Senator Alan Clark Other questions?

 

Representative Gary Stubblefield I'll have some other questions.

 

Senator Alan Clark Okay. All right. Senator Tucker.

 

Senator Clarke Tucker Thank you, Mr. Chair, before I say anything, I don't think this is necessary, but I'm just going to say, I'm a lawyer. I'm a lawyer. I have handled personal injury cases. Okay. I've handled personal injury cases. And frankly, I've defended more cases than I have prosecuted personal injury claims. So I've been on both sides of this. Really more in my career on the defense side. But just for full disclosure. So not everyone in the room is a lawyer. So I'd like to just start with the basics. And my first question is what is a tort? What is a tort?

 

Justin Allen If I may, Mr. Chair. I'm trying to think back to Professor McClure, Senator, from my first year of law school. It is a wrong that results in injury for which recovery can be had, something along those lines.

 

Senator Clarke Tucker Fair enough. In every tort case, not 90% or 95% or 99%, there's a wrong. That's the first word you used in your definition.

 

Justin Allen Well, that assumes liability, right? A plaintiff can make a lot of allegations that they were injured as a result of negligence that caused their injury. But of course, you got to clear that hurdle. And if you clear that hurdle and you've established, yes, there was a wrong, somebody else was at fault and it caused you damage, you're entitled to recover.

 

Senator Clarke Tucker If one person wasn't at fault, there would be no liability ultimately.

 

Justin Allen That's correct.

 

Senator Clarke Tucker So if there is liability, then the person who committed the tort, the wrongdoer, was at fault. Correct? In 100% of cases.

 

Justin Allen Yes. If we're assuming causation.

 

Senator Clarke Tucker Yeah. And in 100% of cases, there was an injury, right?

 

Justin Allen Presumably, yes. That's another thing you can fight and fuss about. Are they really injured?

 

Senator Clarke Tucker But again if there were no injury, there would be no liability. Okay. And that injury is the fault of another person.

 

Justin Allen It can be. Yes. Yeah.

 

Senator Clarke Tucker Well, if it weren't, then there would be no liability.

 

Justin Allen Then there would be no claim. But yes, if we're assuming negligence, causation and damage, yes, that person that was damaged is entitled to recover.

 

Senator Clarke Tucker  Let me ask, do you all have any particular types of tort claims in mind when you pass this bill, or just all tort claims?

 

Justin Allen No particular type.

 

Senator Clarke Tucker Because there are a variety of tort claims, correct?

 

Justin Allen Yeah. I mean, the main example that comes to mind is what we call simple negligence, a car wreck. And then you think about medical malpractice. We can talk about legal malpractice, dental malpractice, veterinarian malpractice. So some of those professional claims.

 

Senator Clarke Tucker Right. So I think what most people think of, especially non-lawyers, when they think of a claim, they think of a negligence claim and the most common example being a car wreck. There are also, there's a branch of tort liability that's strict liability claims. You mentioned some other professional liability claims. Those are also negligence claims. But there's also some strict liability claims for products liability, correct?

 

Justin Allen Yes.

 

Senator Clarke Tucker So you might have a car and you don't have a wreck with somebody, but because of a defect in your product, the car catches fire and your family burns alive. That can happen.

 

Justin Allen That can result in a claim for product liability. There is a defect or a defect in the design.

 

Senator Clarke Tucker That's a tort claim.

 

Justin Allen Yes.

 

Senator Clarke Tucker There are also intentional torts.

 

Justin Allen Yes.

 

Senator Clarke Tucker False imprisonment. An example of that might be kidnaping. Battery is an intentional tort. I could go into someone's house and beat him with a baseball bat. That's a tort claim. Now it's a crime, but there's also private civil tort liability for that.

 

Justin Allen Sure. And you better be ready to pay the punitive damage award, too.

 

Senator Clarke Tucker That's right. You shoot someone, that's a tort. Child sexual abuse. That's a tort. Human trafficking. That's a tour. And this bill affects all of those claims.

 

Justin Allen It does.

 

Senator Clarke Tucker And, you know, we'll talk about the why. But as far as what it does, it shifts the balance on tort claims in favor of the person who caused the injury and away from the person who was injured. That's what this bill does.

 

Justin Allen We respectfully disagree.

 

Senator Clarke Tucker Okay. How so?

 

Justin Allen Because this bill is limited to one silo of damages. And it says that silo of damages is what your past medical care and treatment is and what you should recover from that past medical care and treatment. And it simply says, we're going to measure that by what was paid and accepted.

 

Senator Clarke Tucker I  understand. So let me clarify. Within that silo, and I think we can talk about whether the language of the bill is clear as to other aspects of damages or not. But right now, let's just talk about past medical expenses. And within that silo, it shifts the balance, the scales, as Senator Irvin put it-- now, I understand your position that the scales are not in balance. Now I understand that. But what this bill does is it shifts those scales in favor of the person who caused the injury within that silo of past medical expenses in favor of the person who caused the injury and away from the person who suffered the injury.

 

Justin Allen I will agree with you that what this bill will do is likely result in the recovery of less money in terms of damages within that silo. But I would take issue with you that that is done unfairly. I would say this is being done fairly to properly reflect that silo of damages.

 

Senator Clarke Tucker Okay. And we'll talk about whether it's fair or unfair later. Right now I'm just talking about what it does, but it does shift that balance.

 

Senator Missy Irvin No, I disagree. It does not shift the balance. Right now it is unbalanced. When you are trying to claim a medical payment that you didn't ever receive, that's not balanced. And so we are trying to make sure that what is actually paid will then actually be recovered from medical damages. It's unfair to not accept the reality of rates that are negotiated, contracts that are signed. You're just ignoring that as part of the legal landscape that occurs in all health care settings. So that's why they are unbalanced. That's why additional weight has been added, because you're now to consider something that virtually never existed. When I go and buy something at a store that's on sale, I don't get to return it for the full value. I only get to return it for what I paid for it. That's the same thing that's happening here. I have a receipt. This is what I paid for it. It was on sale. 50% off. I only paid it 50% off. I didn't get to go to Dillard's or Target or Walmart and go, well, I'm sorry, you have to pay me full price. I don't get to do that. So it is unbalanced. And that's exactly what we're talking about here.

 

Senator Clarke Tucker Okay. I understand your position. And you believe it's imbalanced now.

 

Senator Missy Irvin I do.

 

Senator Clarke Tucker And this bill seeks to change the balance.

 

Senator Missy Irvin Seeks to make it fair.

 

Senator Clarke Tucker But it's changing it.

 

Senator Missy Irvin It seeks to make it fair. That's what the scales of justice are supposed to reflect.

 

Senator Clarke Tucker All right. I know this conversation came up in the House committee, but I want to talk about the notion of subrogation. I mean, Representative Hudson asked you, Mr. Allen, about subrogation. And your answer was-- well, let's just say what subrogation is. And this hypothetical that we're talking about where I'm injured. I've got $100,000 worth of medical expenses. I've got a max annual out of pocket deductible of $5,000. My insurance carrier can seek to recover some of the costs they paid for my health care from me or from the person who injured me.

 

Justin Allen That legal right exists.

 

Senator Clarke Tucker That legal right exists in Arkansas under the law today.

 

Justin Allen It does.

 

Senator Clarke Tucker And your answer to Representative Hudson is that rarely happens in practice because of the made whole doctrine.

 

Justin Allen For private insurance. That's true. And I will, to the benefit or credit of some of the subsequent testimony in the House Committee, I recognize government plans are different. And Tricare in particular, they're going to subrogate. Medicare, Medicaid, there's often but not always going to be subrogation. In the private insurance context, it is extremely difficult to subjugate, based on my experience and based on anecdotal conversations with practitioners that because of the made whole doctrine, it's very difficult to prove that the insured complaint of was made whole. Therefore, it is very rare that they are found made whole such that Blue Cross, let's pick on Blue cross, will be able to recover from the defendant what they paid in hospital bills. Does it happen? Yeah, I'm sure it does happen. But in my experience, most private insurers don't even try to do it anymore because they have to file a whole brand new lawsuit against the plaintiff and the insurance company. And I have to prove the insurer was made whole. And if they fail at that, then they have to pay attorney's fees on top of that. So not a whole lot of private insurance, based on the information I have, are seeking to subjugate.

 

Senator Clarke Tucker Let's separate those into two categories. So first of all, government paid Medicare Medicaid, there is subrogation in those cases.

 

Justin Allen It's, I would say, much more frequent and likely than it is for private insurance.

 

Senator Clarke Tucker So in those cases, if there is this imbalance, then that's at least an effort, maybe in some cases, partly in some cases entirely balance things back out.

 

Justin Allen I'm not sure I follow you, Senator. I'm sorry.

 

Senator Clarke Tucker Well, the point is there's a recovery. The argument is that there's a kind of a windfall.

 

Justin Allen Oh, certainly. If an injured plaintiff's medical bills are paid by his or her insurer, and then they recover that amount-- of course, we're arguing over what that amount should be-- but if they recover that amount from the defendant, if there's no subrogation, they had their medical bills paid, and then they get to put the amount they get from a defendant in their pocket.

 

Senator Clarke Tucker Right. But if there's subrogation, it balances that out.

 

Justin Allen Well, if there's subrogation, it results in the injured plaintiff having to give the amount for the medical bills to their insurance company. But the plaintiffs still never pay out of their own pocket for any of that medical care.

 

Senator Clarke Tucker Right. But they don't get the full recovery from the defendant from the person who injured them because they've got to repay their personal health insurance carrier is what you're saying.

 

Justin Allen If there's subrogation.

 

Senator Clarke Tucker That's correct. If there's subrogation. So there's a method that exists. Sometimes it's used, sometimes it's not. But there's a method that exists in the law to prevent the same harm that you claim is happening that you're seeking to prevent. There is a method right now to prevent that from happening with subrogation. That's a poorly worded--

 

Justin Allen I would disagree. I think I know where you're headed.

 

Senator Clarke Tucker Okay. Let's just move on from that. But so let's talk about the made whole doctrine for a second. What that means is, so I get injured, my health insurance carrier can only recover from me what I recover from the person who injured me if I am made whole. So and then if beyond under the law, and I understand people may not pursue these claims for whatever reason, but under the law, beyond when I'm made whole, then they can get back from me or from the person who injured me.

 

Justin Allen If that issue is teed up and a court determines the plaintiff, the injured party was made whole, then that plaintiff can be required to pay some of that money back to the private insurer. Yes.

 

Senator Clarke Tucker Okay. So again let's go to the same hypothetical. I'm injured, my health care provider, $100,000 in expenses. My out-of-pocket costs is 5,000. The reason why it'll take some work for me to get made whole, as an injured person through no fault of my own, is because there are other expenses that come along with litigation or being injured that I can't recover from the person who injured me.

 

Justin Allen Sure. And to be clear, we're not attacking the made whole doctrine here. This bill has nothing to do with the made whole doctrine. It will remain in place. That's a conversation for, I would say, another day.

 

Senator Clarke Tucker So let's say I hire a lawyer and I recover $100,000. And there's a contingency fee, which it's a third. Right. So I'm out $33,000 from the start. But there are other expenses that you can't recover for just from the the nature of life. I'll give you an example. I was hit last year. I was not injured. But there was damage to my car. My car was in the shop for 3 or 4 weeks. The law in Arkansas says the only car that I'm allowed to get that the wrongdoer's insurance will pay for is a small car which does it's not what I have or satisfies my needs. So I've got to pay the difference in that daily rate. Can't recover that from the person who hit me. Also, the cost of the daily insurance for my rental, that's not covered. So in a tiny case where there was no injury and there was minor damage to my vehicle, which was is in the shop for three weeks, I have like $2,000 in out-of-pocket costs, which I can't recover from the person who hit me. So my point is, there are other costs that go along with being injured, right?

 

Justin Allen There's all kinds of costs, of course.

 

Senator Clarke Tucker That I can't recover from the person who injured me.

 

Justin Allen If you can prove that they were negligent and it caused you damage, whether that's personal injury, lost wages, property damages, yes, you're entitled to recover that from the defendant.

 

Senator Clarke Tucker Okay. Well, I don't want to argue about the example, but you can't recover your attorney's fees in Arkansas.

 

Justin Allen No, not in a personal injury case.

 

Senator Alan Clark Senator Tucker, if I could interrupt for just a second. I know you've got points to make that take a while. Can you find a breaking point? I don't want to mess you up. But could you find a breaking point here in a little bit, so that we can go to others. I will be glad to come back to you.

 

Senator Clarke Tucker Yes, Mr. chair, and I appreciate the accommodation. I just want the members to make sure that under the law as it exists today-- can you acknowledge that there are other costs and fees that are not recoverable, other than attorney's fees in a lawsuit. There are just things that happen. If my car is totaled and I have to go buy another car, and maybe I have a better car, but I wasn't planning on spending $40,000 on a new car. There are just things that happen. And so when a court is looking-- so this bill looks at every case across the board and treats them all the same, right?

 

Justin Allen Yes.

 

Senator Clarke Tucker And when a court is looking at a case individually and it's looking at whether the injured person has actually been compensated fully for the harm that was done to them, once they've made that determination, then they can reimburse my health insurance carrier if I'm the injured person with anything that I recover above and beyond that, right?

 

Justin Allen I'm sorry, Senator, I'm not following the question.

 

Senator Clarke Tucker I'll move along.I'll yield the floor and come back and I'll try to phrase it more clearly.

 

Senator Alan Clark I'll be glad to come back to you, Senator Tucker.

 

Senator Tyler Dees Thank you, Mr. Chair. Well, that was a few lawyer classes for me there trying to follow both of y'all back and forth. And I need probably some more simple answers on my side. So when I look at the bill, and some of the questions I've been asked from constituents on this bill has been around the word damages. And so can I get some clarity? Because I think I've heard in the opening that this is only focused on medical damages. But I also have heard some of their conversation about workers comp and pain and suffering. And so maybe that's for the bill sponsor. Just for clarity, when we look back to the bill, can you help me talk about what's in scope here? I believe it's just medical damages, but can we confirm that?

 

Senator Missy Irvin Yes. Thank you for the question, Senator. Yes, we are only talking about the actual damages that were paid. That's what we're talking about. What this bill does not do, it does not impact any other category of damage, okay? It does nothing to impact a plaintiff's recovery of the following items: all future medical costs as established at trial, all lost wages past and future, all property damage, all non-economic damages, including past and future pain and suffering, Scars and disfigurement, a survivor's mental anguish, loss of life or punitive damages. So the bill only seeks the medical damages that were paid on behalf of the plaintiff and then recovered.

 

Senator Tyler Dees I appreciate the clarity. And maybe another follow up on that. Maybe said another way, whether this bill passes or fails, in a case with a plaintiff, there will be no changes to any of the pain and suffering, the non-medical bills, that side is not being touched whether this passes or fails? Is that agreed?

 

Senator Missy Irvin That's correct. And that's the right thing to do. In my opinion, I mean that's absolutely the right thing to do because every case is different.

 

Senator Tyler Dees And then so further, I got a note from a constituent concerned about if this bill passes, will this in any way or form encourage, signal, mandate any health care provider to change the way that they bill or encourage a different billing structure? I don't think it does, but I want to make sure that's clear.

 

Justin Allen No, not at all. And from what I have read, to the point earlier, about 25 states have adopted the same type of policy, very similar or the same, some of it legislatively, some other judicial. But it would seem that it's business as usual in terms of hospitals is who we're talking about, and that's mostly the case. But it could be any health care provider, of course. And insurance companies, whether it's Medicaid, Medicare, private insurance have continued to do business in largely the same way.

 

Senator Tyler Dees Okay. That's helpful to understand. And then my last question, Mr. Chair, is just when I went back to research, and I made need Mr. Allen from a legal perspective on this, when I look back at some of the communication around the Supreme Court ruling in Texas, because I think a similar law was passed there, help me understand the legal precedent. And what was the response from the Supreme Court there?

 

Justin Allen Sure. This bill is not word for word the same, but it is based largely on a Texas law from 2003, Texas law. And of course, it was challenged by a plaintiff in a personal injury case, made its way up to the Texas Supreme Court, and Texas Supreme Court upheld the law. And one point, I think it's important to point out, is in upholding the law, the court found that that law, which this was based on, did not abolish the traditional collateral source rule. The court said, of course, the collateral source rule continues to apply to such expenses. 

And the jury should not be told that they will be covered in whole or in part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of insurance. So you didn't directly ask that. But I think that's an important part of the Texas Supreme Court's ruling is if this passes in Arkansas, the collateral source rule will continue to apply, meaning there will be no reduction in the plaintiff's recovery because it was paid by insurance or a rich uncle. And the jury will never know the existence of the insurance or the rich uncle. And the jury will not be told that the amount that was paid resulted from a negotiation.

 

Senator Tyler Dees Thank you. Thank you, Mr. Chair.

 

Senator Alan Clark Senator Rice.

 

Senator Terry Rice Thank you, Mr. Allen. Is what I just heard you say, the jury would not know the original amount?

 

Justin Allen That's a good point. The courts are going to decide. So as you read this bill, this bill, as is your prerogative, is to set the policy. And the policy that it would set here is that your recovery for past medical damages is what was paid and accepted. That's what we should cover. The courts in states that have adopted this have taken some varying approaches as how to handle the discovery of this evidence, the procedure, how to present it to the jury. 

Texas Supreme Court decided we're just going to let the jury know about what was actually paid, because that's what's relevant evidence. And so the court puts in place a procedure where they put in the bills that reflect what was paid and accepted. Other states, several of them, like Maryland, the court says, no, we're going to let the plaintiff put in all of the medical bills as originally listed.

 The jury will issue awards on interrogatories and say, for this silo, we're giving the plaintiff $100,000. If the bill was discounted and 50,000 was accepted, after the trial, the judge will reduce that from 100,000 to 50,000. So we will have to see how the court, starting with our circuit courts and then our court of appeals, and if this becomes law, we all know at some point several years from now, 3, 4 or 5, our Arkansas Supreme Court is going to look at this law, and they're going to decide ultimately how this is going to play out in trial. 

Now, another possibility is if this becomes law, the legal community could go to the Supreme Court and say, hey, you need to initiate some rulemaking on Act whatever of 2025. That could be a way on the front end that we all get clarity as how this is going to play out at trial. I hope that answers your question, senator.

 

Senator Terry Rice Well, let me give you a little more. I watched the hour and a half debate in the House and it was helpful. And I remember somebody, I think had said a couple of times, this can go either way. As a business owner, I preach liability to my employees all the time where we become a much more litigious society, and I have to be concerned with that. And yet the other side is I could be the one, or I could have a loved one that is facing that. And I am right now. So I get this bill Saturday. And it kind of rang true with some of the stuff I'm hearing.

 This is a bill for me for $22,812. The member discount is $16,680. The plan paid just over $6,000. And that's what we're talking about. What my concern is when I hear them talking about multipliers. Mine's not an injury case, okay. But when I hear them talking about multipliers in an injury case, if they're only able to see that discounted rate, and I think I heard in testimony that the normal multiplier is up to three, but normally around two and a half, you're totally changing the outcome.

 And I am sympathetic to this as this being medical only. What I can't be assured of is if those scales of justice, and I'm for equaling the scales of justice, if that judge sitting there is going to have all the information that they need on what amounts we're talking about. And let me give you another little bit of a case. I've got a grandson, no fault of his own, driving down a highway, four lane divided highway, accesses right out to the highway. It's not controlled. Somebody comes out from the side and hits him probably doing 60 miles an hour. Never touched his brakes at the stop sign. 

Just didn't see him, I guess. Rolled his truck. His head broke the side glass out, had a concussion, wasn't able to work for a while. Had the side effects of concussion. We're not a litigious family. Never sued anybody in our life. Hope we don't have to sue anybody. It's not a civil case, but it really brought this case home to me. The person that did it, the state police didn't even check him for drugs or alcohol. Let them go. 18 year old. Let them go with their parents to the hospital to get checked out. I don't know if my grandson's going to have long term stuff right now. Doesn't look like it, but this is some of those things. Even on the medical, once you sign medical release, it's done. The medical, the pain and suffering, the physical damages. You're saying those are all separated, correct?

 

Justin Allen Yes, sir.

 

Senator Terry Rice Okay. Is pain and suffering on these multipliers ever considered in that? Yeah, your medical is only $6,000. So is pain and suffering considered at a discount too?

 

Justin Allen So I would say no. I will acknowledge that it is common in the insurance and legal industry, especially early on in a case, whether it's a claim or it's a formal lawsuit, for the insurance company or the potential defendant to try and get a handle on what might this case be worth. Their businesses, they've got to set budgets. They've got to determine what could this cost me ultimately in the long run. 

So it has been done in those contexts to say, okay, the medical bills and the lost wages are X, let's say three times X to get us to the non-economic damage number. That gives us that number, whatever that is. That happens in insurance and that happens with litigation. That is not in rule. That is not in law. It's arbitrary. And what I would say, most importantly, is if you go to trial, a jury is never told that they are to figure out the non-economic damages based on what the economic damages are. The Arkansas Supreme Court-- where's the--

 

Senator Missy Irvin I have it. So the Supreme Court actually has held that pain and suffering may be inferred from the serious nature of the injury. That's Scott-Burr Stores Corp versus Foster in 1938. And there is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. That was the Hamby versus Haskins case in 1982. So a jury is never given a multiplier. They are never given that instruction whatsoever. And that has been upheld by the Supreme Court in both of those cases.

 

Justin Allen And if a plaintiff and his or her attorney feel like a multiplier is improperly being used in trying to settle a case, they say no and can go to trial, and they'll make their argument to the jury as to what all their damages should be.

 

Senator Terry Rice So regardless of what's considered an industry standard, that doesn't limit a jury or a judge?

 

Justin Allen Correct. No, sir.

 

Senator Terry Rice Okay. That is helpful. And I hate to bring up a case because it's not a case. But it brought a real thing to this bill.

 

Justin Allen And you and I discussed this, your grandson's injury and the head injury aspect of it. And what might that mean in the future? A good plaintiff's lawyer, with a head injury case, has three years to file their lawsuit. And after you file your lawsuit, that could take years, and you consult your neurologist, you consult your neurosurgeons about what might this mean. And they're going to use their best judgment. And if they are of the opinion that there could be some latent injury there, they can testify to that. You don't settle the case yet. 

You don't sign a release yet. You wait. Now, I think those are the outlier situations. Most cases, even with a head injury, the doctors are going to be able to tell you what's most likely going to happen. And therefore you can put on evidence of, I'm going to need surgery, I'm going to have deficits, I'm not going be able to earn as much. This touches none of those factors. You'll be able to calculate those as damages if that's the unfortunate situation you're in.

 

Senator Terry Rice And again I appreciate it. It's not about me, but it's about other cases that we hear of and trying to be fair. So thank you for the information.

 

Representative Jon Eubanks Senator Rice, I'd also, if you happened to watch the House committee, Representative Matthew Shepherd, who I think you would acknowledge is a very good attorney, brought up the fact that when the multiplier issue was raised, that he also stated that it's not in rule or statute anywhere that's required to be used to assess what the other damages should be.

 

Senator Alan Clark But if I may, it's not required to be used. But is it used?

 

Justin Allen Yes.

 

Senator Alan Clark So it would reduce in those cases.

 

Justin Allen Well, it's certainly likely to reduce the initial offer. The insurance company hears from the plaintiff or the plaintiffs lawyer, and they're like, well, we've always used three times. We're still using three times. So if the medical bill is less than what was on the list price, then yeah, that's the position they're apt to take. But the plaintiff doesn't have to accept that.

 

Senator Alan Clark Yeah. We'll get back to that. Senator Gilmore, you're recognized.

 

Senator Ben Gilmore Thank you, Mr. Chair. I think we've had some very healthy debate. And I just want to say to folks at the table, I've sat where you are and I've taken quite a few hours of questions from my good friend Senator Tucker, who is a very skilled attorney. So kudos to you all. So I sort of want to talk about the litigious environment in the state of Arkansas. Senator Irvin, I think you read through a list of all the enumerated damages that can be recovered. Would you mind reading that again?

 

Senator Missy Irvin Again, plaintiff's recovery. This bill does nothing to impact a plaintiff's recovery of the following items: all future medical costs as established at trial. All lost wages, past and future. All property damage. All non-economic damages, including past and future. Pain and suffering. Scars and disfigurement. A survivor's mental anguish. Loss of life. And punitive damages.

 

Senator Ben Gilmore Okay, so that's quite the list. And so let's talk about maybe some real world. Senator Irvin, you chair Public Health. And so you understand, I think more than probably most, the environment in health care with that. I think you understand the maternal health crisis.

 

Senator Missy Irvin I do.

 

Senator Ben Gilmore And I think you understand that one of the most litigious sectors of health care is related to OBGYNs and the fact that there's a lot of complications that can arise with treating a mother and child. And we both represent very rural areas of the state where it's hard to get access to OBGYNs. So I think what people may not understand, and maybe you can speak to it, is the amount of liability coverage that is associated with a physician OB GYN and that coverage that follows them for years down the road and has an impact on trying to get people to go into that practice, trying to get people to treat patients. It's certainly troublesome. Is that not the case?

 

Senator Missy Irvin Yes. Thank you for the question. It absolutely is the case. And we are at a maternal health crisis in the state of Arkansas. There's no doubt there's a lot of factors that contribute to that. But hospitals are closing their labor and delivery units. Again, many factors play into this. And I believe that the governor and this legislature is going to address many of those, hopefully, to try to start to make a difference there. 

But one of the biggest issues is the fact that delivering doctors, doctors that are there to deliver your babies, are liable up until that child is 12 years of age and then two years beyond. And so one of the problems is that then they have to, because they have to pay for tail coverage to cover that extended liability statute of limitations, they stop delivering babies early in their careers, even though they're trained to be able to do it. And they can still deliver it, and they still may have a hospital nearby where they can deliver it, but they have to stop delivering those babies. And these are great people that you're just completely taking out of the workforce. And yes, women suffer because of that. 

We're down to only 35, I think, counties that offer labor and delivery in the state of Arkansas out of 75. That's just unbelievable and remarkable to me. And this is why I've been so passionate about this issue is because I am married to a man who's delivered over 500 babies, and he is a primary care doctor in Mountain View, Arkansas. And we cannot afford to deliver those babies. He's trained to do it. We're still paying for medical school debt. We're still paying for the training. He delivered all four of my babies, did a great job, but we can't afford the malpractice insurance. You have effectively taken my husband out of the workforce. 

You have removed his ability to actually practice medicine in the state of Arkansas. He can't deliver the babies of the patients that he has grown a relationship with and they trust him. In fact, he's had patients that have begged him, please, will you just please get privileges that this hospital in Newport, Arkansas, and then come with me and deliver my baby there. And he can do it on an emergency basis, but that's not appropriate. Not for these women that live in these very rural areas of the state of Arkansas. They need to have prenatal care. They need to have OBs near them. They need hospitals that can deliver babies. Hospitals won't deliver babies anymore because they cannot afford the malpractice insurance for delivering babies. That is the world we're living in. 

And so, yes, this bill directly addresses that problem and that crisis in the state of Arkansas. There's no doubt. And I've seen it firsthand. And it's wrong. Why does Arkansas have the highest infant mortality rate, one of the highest? In the nation, we're third highest in infant mortality rate. There's a problem here, folks. We're trying to fix it. This is a very, very small piece of it, but it's really, really, really critical and important. And I can go down all of the different statistics. And again, there's a lot of different factors. I don't want to pretend that this is the only factor that contributes to the maternal health crisis that we're facing in the state of Arkansas. It's just not.

 But I'm just telling you, I would love for my husband to be able to deliver babies. He's so good at it. He's amazing. And I got that standard of care. I want this person in Mountain View or Stone County or Searcy County to also have that same standard of care, but they can't. He can't afford the malpractice insurance. And it's because of our policies that we have.

 

Senator Ben Gilmore So thank you for that. I think you have a unique circumstance that you can point to to speak to that. So I think you're 100% right. There's multiple factors involved in that. And I want to be really clear because I know there's some that have said, this is a bill that only benefits the insurance companies. Well, look, I have my own issues with insurance companies, okay? Don't get me wrong. And I know that there's people in this room that represent insurance companies. 

And I've had conversations with them. All right. So let's just be really clear. I have my own issues in how they pay, how they reimburse, all those sorts of things. And I think that's a conversation that we need to have at some point. But I think the reality is, if you're allowing people to recover something that was not actually paid, that's a problem. If someone has a hospital bill that's $145, but the actual cost was $130, they shouldn't get to make a profit.

 

Senator Missy Irvin Absolutely. And all you have to do is actually what Senator Rice just went through, that exercise on your explanation of benefits. Look at your EOB. Look at your explanation of benefits. You can actually see what was actually paid to the hospital versus what was actually a claim. And it's based on contracts on rates that are negotiated. That is the world we live in.

 

Senator Ben Gilmore Well, I think if we're really concerned about addressing the cost of health care, this has to be a factor. Thank you.

 

Senator Missy Irvin Thank you.

 

Senator Alan Clark Okay. Y'all confused me. Of all the conversations I've had on this bill, and trust me, it's been a lot, none of them initiated by me, delivering babies was not part of the discussion at all. And I'm trying to figure out how this bill as written, the cost of medical is what I understand we're dealing with here, how this bill is going to change at all the malpractice for delivering babies.

 

Senator Missy Irvin If I may.

 

Senator Alan Clark Yes.

 

Senator Missy Irvin So it's part of the cost. So if a hospital is hit, like in the example that I gave, it's part of their whole economic situation. And so hospitals have to choose every day. And the fact of the matter is when you have a huge bill of trying to provide for malpractice insurance because you're delivering babies at the hospital and you can't afford it because you are now paying these damages that actually never were paid to you and you now have to pay them, that's part of the cost of doing business that's increased dramatically. 

And it also is part of, I'm not able to make as much money doing this. So, and that's one factor. The second factor, though, is trying to find doctors. People are not going into medical school anymore. There's a lot of factors for that. But one of the main reasons why people do not go into OB GYN as a profession anymore is because of the extreme cost of malpractice insurance and because of the tail coverage that they have to carry later on, after they are done delivering babies.

 

Justin Allen And if I might, senator, I'll drill down, maybe, and give you a factual example. Back in my previous life, as I call it, as a lawyer, I handled what we call labor and delivery cases, where at some point during labor and delivery, the child, the fetus suffered a hypoxic event, lost oxygen to his or her brain, resulted in a permanent brain injury, resulted in cerebral palsy. So that happens, sometimes at the fault of the physician, sometimes not. But that happens. And when it does, inevitably that physician is going to get sued. And those are high value cases because, unfortunately, that young child is going to need care for the rest of his or her life. 

But that young child will have spent some time, likely in the hospital and other settings, by the time you get to trial. And how this bill will impact that is, it will look at, okay, what was paid for those medical services. You recover what was paid and accepted. But it won't impact any of those other categories of damages for that child and for that family in the cost of taking care of that child for the remainder of life. But that's why malpractice insurance premiums are so high for obstetricians because of these high risk cases with labor and delivery.

 

Senator Alan Clark Okay, but we're not dealing with high risk cases of labor and delivery. We're dealing with the medical costs. And is that going to change it?

 

Justin Allen In that case, by the time you get to trial, you look at, okay, what were the past medicals for taking care of that child? This bill will set that as what was paid and accepted. Yes, sir. But it won't impact any of the other.

 

Senator Alan Clark Well, I'm still undecided on this issue. I hope to make a decision by the time we vote. Oh, but I will guarantee you that this will not make any impact on what we're dealing with with these doctors delivering babies and their malpractice insurance. And that's one of those things as far as me, I'm going to take it and put it over there, and I can't tell the rest of the jury to disregard it, but I don't really think that's part of the discussion. Senator Johnson.

 

Senator Brian Johnson I have to ask this question out of abundance of ignorance on my part. But what in the world is allowed now on these medical services, treatments and future medical? I mean, if I have a $10,000 bill and my insurance will pay 6,000 and I have to pay 4,000 out of pocket, the total cost to me is 10,000. So tell me what's allowed now and what this bill would cover.

 

Justin Allen So under current law, for past medical expenses, you're entitled as a plaintiff to recover from the defendant whatever was on the initial invoice. So even if you paid something less, you're entitled to recover the initial invoice.

 

Senator Brian Johnson So I mean, whether it be government paying it or insurance payment, the doctor is billing three times to recover what his need is in that procedure. So, right now the practice is to pay what he billed, not what he's needed?

 

Justin Allen Not what he accepted. That's correct. That's the current practice.

 

Senator Brian Johnson My father in law used to work in engineering. And that's what they call cost plus.

 

Justin Allen  Senator, one way I've looked at this, it came to me the other day, people go to the hospital all the time because they're sick or injured through no fault of another party. And the hospital gives a bill, their insurance pays for it, a lesser amount. We don't get to recover that difference between those two and put it in our pocket. So why are we doing that in this case? Yes, there's a third party who's at fault and causes the injury. Go pursue all those other categories of damages you're entitled to. But when it comes to backward looking at your medical bills, recover what was paid and accepted. Recover the real amount.

 

Senator Brian Johnson If it's alright, Mr. Chair, go back to the OBGYN situation, is there a time limit? You know, if there's a problem with a child, is there a time limit for bringing something?

 

Justin Allen Yeah, that's going to be a three year statute of limitations. And then of course, a case like that, once you file a lawsuit, it's years before it even goes to trial. But it will be the outlier case that within those three years, you may not know ultimately what it's going to cost. But those labor and delivery cases, those doctors, they're going to know what it's going to cost. They have life care plans they put into evidence backed up by medical testimony of this is the life expectancy of this child and these are all the things this child is going to need over his or her life and this is what it's going to cost. And all of that is recoverable and will still be recoverable under this. This won't touch any of those.

 

Senator Brian Johnson Every case of delivery, is there a presumption of liability? Is that why the cost of that insurance?

 

Justin Allen I wouldn't go so far as to say there's presumption, but it's clear that the child, at some point right before or usually during labor and delivery, suffered a hypoxic event. So that puts that OB GYN and the nursing staff kind of in a bad spot to start with. But the plaintiff still has the burden of proving the physician should have noticed the fetus was in distress and performed a C-section. And some of those cases succeed and some don't, but it is a hard issue for the physician to tackle. And of course, the damages in those cases are in the tens of millions of dollars potentially. And that's why the risk there is so much for those types of doctors.

 

Senator Brian Johnson So do you think this would help that medical liability insurance?

 

Justin Allen I think it makes common sense that it would help. But to the senator's point earlier, is it going to change it dramatically? No, probably not. It is part of the pie, though. And I think, again, it gets back to it's a matter of fairness. This is the right policy. Plaintiffs are supposed to be made whole. They're not supposed to be made more than whole unless there's a punitive damages issue on the table. If the defendant is subject to punitive damages, so be it. But they're to be made whole. And when we're looking at this silo of damages, what better way to make that plaintiff whole than to reimburse them for what was actually paid and accepted for past medical treatment.

 

Senator Brian Johnson Well, if I sell rice and it's below the Chicago board, I sure would like to to get what's on the Chicago board. But I don't think that ought to be the practice. Iit ought to be up to my decision and the actual cost. Thank you.

 

Senator Alan Clark Senator McKee

 

Senator Matt McKee Thank you, Mr. Chairman. In your experience, do the bills provided by the hospital bear any resemblance to the actual costs that they incurred, or are they a negotiating tool?

 

Justin Allen I'm going to read you some quotes from some legal and health care journals, as well as from the Texas Supreme Court case discussed earlier. This is from a University of Mississippi Law Journal article: "Listed rates for medical treatments are more a matter of internal billing practices unique to the health care system than a reflection of the reasonable value of medical services." And this is from the Haygood case, Texas. "A hospital's regular rates, full charges, or list prices are generally at least double and may be up to eight times what the hospital will accept as payment in full for the same services for Medicare, Medicaid, HMOs or private insurers. The labels for these charges regular, full or list are misleading because in fact, they are actually paid by less than 5% of the patients nationally." There's a lot of that out there.

 

Senator Matt McKee So they present these numbers knowing that in almost every case that's not the number they're going to be paid.

 

Justin Allen That's my understanding.

 

Senator Matt McKee They know that they're going to receive a discounted portion of that.

 

Senator Missy Irvin It's part of the contracts that you sign.

 

Senator Matt McKee So those numbers, they can pull them out of thin air. I mean they may have a process by which they determine it, but that number doesn't really mean anything.

 

Justin Allen Based on what I have read, I think that could be argued. Yes, sir.

 

Senator Matt McKee Okay, so if we're going to then base future damages on numbers that hospitals pick out of, I'm not going to say they pick them out of thin air, because I'm sure that they don't. But would you say that that would lead possibly to inflated prices across the board?

 

Senator Missy Irvin Yes.

 

Justin Allen Yes.

 

Senator Matt McKee Okay. Thank you.

 

Senator Alan Clark Senator Stubblefield.

 

Senator Gary Stubblefield Thank you, Mr. Chairman. Let's go back just briefly to the other states that passed these laws that are similar to this one. Are the states that passed laws like this law, are they exactly like this law? Because I've read, one of them certainly is more friendly to the one who was hurt, the client.

 

Justin Allen No, I wouldn't say that they're exactly.

 

Senator Gary Stubblefield They're not exactly.

 

Justin Allen No, they're not exactly the same. They address the same premise of the recovery should be limited to what was paid and accepted as full and final payment. I'd say the biggest variation around those is how that plays out at trial. And this bill doesn't speak to that. This hasn't come up yet. But I'll bring it up because there are limitations on what the General Assembly can do when it comes to matters of pleading, practice, procedure in evidence. So if this bill were to be loaded up with a lot of do's and don'ts for the court in how to play this out, we run into a potential constitutional issue. This just simply sets the policy, and the court will decide how that will come into evidence. And it was like I discussed earlier, the difference between how Texas does it and how Maryland does it. If I'm a plaintiff's lawyer and this bill becomes law, I'm going to prefer the Maryland way, because the full list amount is going to come into evidence, and the jury will get to see that, and that might result in an increased non-economic damage recovery. But the court under our Constitution is the one that needs to determine how, from an evidentiary and procedure standpoint, to implement this if y'all enact this law.

 

Senator Gary Stubblefield Okay, in this room today, we have doctors. We have hospitals represented here. Of all the people in this room today, who's this bill more important to, the hospitals, the doctors or the insurance companies?

 

Justin Allen I can't speak to that, Senator. I would say it's important across the board for business, industry and health care, including small businesses, which is why the NFIB fully supports this bill.

 

Senator Gary Stubblefield Does this bill in any way skirt the collateral source rule?

 

Justin Allen No, sir.

 

Senator Gary Stubblefield In no way?

 

Justin Allen No, sir. Let me give you a caveat. This bill is designed to address the Montgomery Ward case, a slip and fall where the hospital accepted half of the bill. This does not skirt the collateral source rule, which says you get no reduction in recovery because your insurance, your rich uncle paid it and the jury does not know that you had insurance or your rich uncle paid it. This does nothing to that, as the Texas Supreme Court ruled. And I quoted earlier.

 

Senator Gary Stubblefield Under this bill, the one at fault can argue that they don't have to pay because the injured, the person's own insurance, Medicaid, Medicare has already paid the bill or should pay the bill. Can you explain that?

 

Justin Allen Yes, sir, I think I can. I think I understand what you're asking. A person, if this becomes law, a person who gets injured can sue the third party that they believe is at fault in it. When it comes to past medical bills, they will be able to recover what was actually paid. And they will still be able to recover even though private insurance, or again, the rich uncle had already paid it. This will not change that. We're just saying your recovery for this category of damages is what was paid and accepted.

 

Senator Gary Stubblefield I noticed in one of the last reports of the Chamber of Commerce when they give their annual business climate report, it showed that Arkansas was strong, never mentioned one of these recommendations as a means to improve it. Why was that?

 

Justin Allen Which chamber was that?

 

Senator Gary Stubblefield Chamber of commerce.

 

Justin Allen Arkansas State Chamber? I don't know what you were reading, but I know the chamber puts out a lot of publications, and many of them are supportive of civil justice reform. And this would probably be the top priority. And just to elaborate a little bit, and Representative Eubanks mentioned this in House committee, and this is from the US chamber discussing the impact. It's got a study on all 50 states, tort liability on the state. And he mentioned this earlier, is around $3,000 per year per household in Arkansas. The total tort costs paid in Arkansas are over 3.5 billion. I don't know what time period. I'd have to find that out for you. 2.1% is the percentage of Arkansas GDP that went to tort costs, and the average growth rate of tort cost in Arkansas from 2016 to 2022 were 3.7%. So there's data out there to speak to that. But I can assure you that the Arkansas State Chamber of Commerce believes that this is an important issue.

 

Senator Gary Stubblefield Okay. So this bill will not decrease interest premiums to help the Arkansas economy?

 

Justin Allen It will not increase them?

 

Senator Gary Stubblefield Will not increase.

 

Justin Allen This bill certainly is not designed to result in insurance costs.

 

Senator Gary Stubblefield It will not decrease.

 

Justin Allen I can't guarantee that, Senator. Wouldn't even try. But again, I think it makes sense that it should at least mitigate the insurance costs. And it makes sense that this would be good policy. And there's other measures that I think should be considered to help with those types of costs. But this is just one of them.

 

Senator Gary Stubblefield I'll come back.

 

Senator Alan Clark Senator Tucker.

 

Senator Clarke Tucker Thank you, Mr. Chair, and thank you all for your patience. You've got a lot of questions. My friend, Senator Gilmore, I promised him when he ran the Protect Act last time that I would ask no more than one question per page of the bill. And I have broken that rule on this bill, I will admit. I want to start just by following up on a couple of things that my colleagues asked. There was a presumption in some of the questions that health care providers might inflate their bills or overbill a little bit. Senator Irvin may disagree with that. My point though, this bill--

 

Senator Missy Irvin I would just invite you to go and sit with hospital administration and negotiate a contract with Blue Cross Blue Shield or Centene or UnitedHealthCare.

 

Senator Clarke Tucker  I think it's a debatable point whether they're overbilled or not, but regardless of whether they are, this bill does not address in any way how much a health care provider bills for the services they provide. Is that true?

 

Justin Allen True.

 

Senator Clarke Tucker Now to the point Senator Irvin just made. One reason why the health care provider accepts less payment than what is on the original invoice is because of a negotiated rate with an insurance company. Right?

 

Senator Missy Irvin Correct.

 

Senator Clarke Tucker The insurance company is funded by health insurance premiums paid by consumers. So that lowered rate that's actually paid is a direct result of the insurance premiums that consumers pay.

 

Justin Allen To the benefit of the insurance company, not the insured. Yes.

 

Senator Clarke Tucker Okay. Senator Johnson asked this. There is no presumption of liability. And that's why people have to hire lawyers. And in most of these cases, not all tort cases, but in a lot of tort cases, the fee arrangement between the law and the client is a contingency case. And not always, but in most cases, the reason for that is because the person who's hiring the lawyer doesn't have the money to be able to pay the lawyer out of pocket upfront.

 

Justin Allen That's the theory. Yes.

 

Senator Clarke Tucker Okay. I want to, with my apologies, I'm going to go back to where I left off. And Senator Johnson asked me to use some math. So I'm going to use some math, and I'm going to address this question that Senator Gilmore asked. And I think prophet is a good term. It's a clear term. Okay. So I'm going to go back to my example, but I'm going to use some real math and I'll direct these to Mr. Allen. Although of course, Senator, Representative, I would love to hear from y'all as well. But going back to my hypothetical example, my medical care costs, according to the provider are $100,000. My annual out-of-pocket max deductible is $5,000. My attorney's fees are $33,000 flat. Following me so far? So that's $38,000 that I paid to the health care provider and my lawyer. Now, if a court finds that I am then made whole by those amounts, then the remaining $62,000 will go back to my health insurance carrier, correct?

 

Justin Allen Yeah, but no court is going to find that you were made whole.

 

Senator Clarke Tucker Okay. That's my next question. That's my next question. And I want to talk about why. Okay. I want to talk about why. But under the law as it exists today, that $62,000, if it's found that I am made whole, would go back to my health insurance carrier.

 

Justin Allen Well, you say your medical bills were 100,000. What about your other damages?

 

Senator Clarke Tucker I'm trying to keep this as simple as possible, Mr. Allen.

 

Justin Allen It's not that simple, though. I mean, you have the opportunity to recover all these other categories of damages other than just that hospital bill. And that also goes into the calculation of whether you were made whole as well. All of it, including the fact that you have to kick 33% over to your attorney.

 

Senator Clarke Tucker Okay, but I want to make sure the members understand this, okay. The made whole doctrine stands for the proposition that once I am made whole, then I'm not entitled to anything beyond that. So I can't make a profit.

 

Justin Allen That's right.

 

Senator Clarke Tucker That's it. So under the law as it exists now, I can't make a profit. Once I am made whole, everything that I've collected from the person who injured me gets doled out to my health insurance carrier, the health care provider, whoever the case might be, if it's a medical lien  or whatever.

 

Justin Allen No, the basic tenet of personal injury policy is that we try to put the plaintiff back in his or her shoes as they existed before the accident, and not to enrich them with a windfall, which is the whole point of this bill, because we believe a windfall is occurring here.

 

Senator Clarke Tucker But the way the law is written now, once I'm made whole, then I'm not entitled with any more of the compensation of the recovery.

 

Justin Allen No, you've been put back into the position you were before.

 

Senator Clarke Tucker And so then to your next point, the reason why courts rarely find that plaintiffs have been made whole is because there are all these other expenses that exist, including attorney's fees, as a prime example, that I pay in the course of pursuing my recovery that make me less than whole. So the other money makes up for that.

 

Justin Allen That's just a bonus payment. And that's the problem with how it works right now.

 

Senator Alan Clark I can't hear you.

 

Justin Allen I'm sorry. What I'm saying is that is a pure windfall. If we're saying that the difference between what was accepted by the hospital and what it charged is making up for other damages, that's a windfall. IYour damages for your past medical care--.

 

Senator Clarke Tucker Not according to the judges who look at an individual case. Right. So again, that goes back to the point I was making earlier. Right now we're making policy for every case for all time moving forward.

 

Justin Allen Personal injury cases, yes.

 

Senator Clarke Tucker  But now these judges are looking at an individual case and determining whether a windfall has happened under the law as it exists now. And we're taking that power away from the judges to look at on a case by case basis. And we're making that decision for all cases for all time.

 

Justin Allen I disagree completely. What better way to look at your damages for your past medical bills than what was paid and accepted, period? That's all we're talking about. This doesn't touch subrogation. This doesn't touch the made whole doctrine. We're just saying, at the time of settlement, at the time of trial, how much should we pay Senator Tucker for his past medical bills? How about what the hospital was paid and accepted? That's what we're saying.

 

Senator Clarke Tucker Okay. All right. So I'm glad you raised subrogation. We'll go back to there, and then I'm going to move on. Let's go back to my example. $100,000 in medical costs, 5,000 out of pocket medical, 33,000 in attorney's fees. The law as it exists now, my health insurance carrier, if I am made whole, we'll get that $62,000 back.

 

Justin Allen Assuming that's what they were paid and that's what you were deemed made whole. But that totally disregards all the other--.

 

Senator Clarke Tucker I understand your point. I understand your point. If this bill passes, then my recovery is limited to $5,000 on past medical expenses.

 

Justin Allen If that was what was paid and accepted, yeah. The receipt of payment from the defendant for past medical bills is not to enrich the plaintiff. It's to help them pay for the past medical bills. It's not meant for them to put into their account and use as they see-- I don't mean that in a critical way. It's not meant to be part of what the plaintiff recovers for his or herself. It's meant to help cover what they paid for their health care service.

 

Senator Clarke Tucker All right. I'll move on. It's a dead horse at this point. The made whole doctrine allows it to go back under the law as it exists now. And I'll move on. And here's the good news. Senator Rice and Senator Clark already addressed a series of questions I had on the direct relationship between past medical costs and pain and suffering and other non-economic damages. So I'm going to skip those entirely. But if this law passes, and you're injured through no fault of your own, you can recover less if you have health insurance than if you don't have health insurance.

 

Justin Allen Well, that assumes that people without health insurance are paying the full amount or if anything. Here's another quote from a law article in South Carolina. I'm sorry. Where's my uninsured? While all uninsured patients are expected to pay the hospital's full charges, it appears that in fact, less than 5% actually pay the full charge. I've got a piece from the American Hospital Association from 2021, where the American Hospital Association says the uninsured don't pay anything on their bills the vast majority of the time. So that first assumes that the uninsured are having to pay the full amount of bill. I don't think that that's what happens. Secondly, what I would say is, hey, Mr. Uninsured, what did you pay? Nothing. Then you don't get anything for hospital bills because you didn't pay anything. I paid half of it. Well, then you get half of it because you paid half of it.

 

Senator Clarke Tucker All right. So let's follow up on that. So I've got that American Hospital Association report right in front of me here. And it says that in another section, patients ineligible for financial assistance and patients whose care is paid for by other types of insurance e.g. worker's comp, auto liability insurance, etc., are the only patients that may be billed fulled charges. So I just want to note that that report also says that. But to your other point, when you say uninsured folks pay 5% or less nationally, that's up to the health care provider in each instance.

 

Justin Allen That's right. That's correct.

 

Senator Clarke Tucker And so they might charge 5%. They might charge 50. We don't know. In each instance that's up to them. So a person who is uninsured certainly has the potential of paying more out of pocket than a person who is insured if this becomes a law.

 

Justin Allen I mean, if they're going to pay any hospital bills, it's going to be out of pocket. That's the case today. But they'll be entitled to recover whatever they pay from the defendant.

 

Senator Clarke Tucker They can recover more than someone who pays.

 

Senator Clarke Tucker They will recover what was paid.

 

Senator Clarke Tucker And it could be, if the hospital doesn't give a discount, it will be more.

 

Justin Allen Sure. Yeah. Let's base it in reality. And that will differ from case to case.

 

Senator Missy Irvin But if you're uninsured for various reasons, I mean, you're making an assumption that you're uninsured for, I'm not sure what reason. Sometimes that's a choice people make.

 

Senator Clarke Tucker I think if this bill passes, more people will make that choice because there's a disincentive.

 

Senator Missy Irvin I would disagree with you. No, I would completely disagree with you. But I mean, you're also discounting the fact that you have charitable hospitals because of what they do. They treat people. And you know that the federal laws do not allow a hospital to reject treatment of a patient. You know that. Whether they have insurance or not, they cannot turn somebody away from the emergency room. They have to treat them. So it's not whether they can pay or not. They have to provide care and treatment. That's the right thing to do. But we should acknowledge that. We should understand that. And that should be a calculation in any of these policies that we're presenting today. And I would argue it's a huge consideration.

 

Senator Clarke Tucker The amount you can recover if this bill passes will vary depending on whether you have insurance or the type of insurance.

 

Justin Allen Sure, and I don't know why we want to take two different plaintiffs who paid two different amounts for their past medical bills and have them recover the same. That's the whole point of this bill.

 

Senator Clarke Tucker Is an insurance premium an out-of-pocket expense?

 

Justin Allen Sure.

 

Senator Clarke Tucker In real life, it is.

 

Justin Allen Yeah, but it's not as a result of a tort that you're paying it. You're paying it because you need to and it's the responsible thing to do if you can afford it.

 

Senator Clarke Tucker But it does reduce the tortfeasor's liability.

 

Justin Allen No, I disagree with that. This bill sets things in reality when it comes to that silo of damages we've been discussing. Let's use what's real, not some inflated number that's not paid.

 

Senator Clarke Tucker Your health insurance premium is not an inflated number that's not paid.

 

Justin Allen I'm sorry?

 

Senator Clarke Tucker The health insurance premium is not an inflated number. That's a real number that you pay out.

 

Justin Allen But the tortfeasor did not cause you to have to buy insurance and pay the premiums.

 

Senator Clarke Tucker  But it does affect their liability.

 

Justin Allen Whose liability?

 

Senator Clarke Tucker The tortfeasor.

 

Justin Allen The fact that the plaintiff has insurance?

 

Senator Clarke Tucker Yes.

 

Justin Allen It very well may impact what they recover for past medicals.

 

Senator Clarke Tucker  We talked more about really health care coverage today than I anticipated. And I'm just curious if you considered limiting this bill to that area.

 

Justin Allen To which area?

 

Senator Clarke Tucker Medical malpractice cases.

 

Justin Allen No. Why would we treat it differently than any other case? Why should plaintiffs in a medical malpractice practice case recover something different than somebody in another negligence case? Again, what was paid and what was accepted, we think that's fair.

 

Senator Clarke Tucker Okay. I just want to mention for my colleagues here that 9% of all lawsuits in Arkansas are tort cases. 5% of the 9% are medical malpractice cases. So it's a very small percentage of cases. Less than 5% of cases go to court, and the average jury award in Arkansas is under $5,000. You have any reason to dispute any of that?

 

Justin Allen I have no idea the source of that.

 

Senator Clarke Tucker Okay. I wish that I had--

 

Senator Alan Clark Can you cite those numbers again, Senator Tucker?

 

Senator Alan Clark Yes, sir. 9% of lawsuits in Arkansas tort cases. 5% of tort cases are medical malpractice cases. So 5% of 9%. Also less than 5% of cases go to trial. So again, that's less than 5% of the 9%. And the average jury award in Arkansas is less than $5,000.

 

Senator Missy Irvin I would just like to know the statistics of those that settle out of court, and what the cost of that is. And that's a dramatic cost. I can tell you. I know of individuals who have been sued because the doctor wouldn't prescribe opioids to the patient. So guess what? If the insurance company had to pay for the attorney to come and spend all day long to represent that physician who did exactly what they were supposed to have done, still incurred a huge amount that was never recovered. The lost wages of that physician was never awarded damages for being away from their practice all day long, and patients that they didn't see, had to cancel. There are so many instances where there's all these tertiary expenses.

 

Senator Clarke Tucker I agree.

 

Senator Missy Irvin But it's for everybody. It's for everyone. And so again this goes back to what a receipt shows of what was actually paid. And it's really that simple.

 

Senator Clarke Tucker You just made me think of another example. Have we ever heard of a case in American history where a health insurance carrier denies coverage for a service? Does that happen? And so sometimes an insured has to sue their first party insurance carrier to get coverage for an expense, correct? And if they have to pay a lawyer to do that, then they won't be able to recover the attorney's fees on that side either.

 

Justin Allen For suing the insurance company?

 

Senator Clarke Tucker Right.

 

Justin Allen I think they may have some penalties and maybe a fee if it's a bad faith case.

 

Senator Clarke Tucker Yeah, but only in a bad faith case. Okay, so I pulled the insurance numbers for Arkansas for private passenger auto and commercial auto for the last five years. So this is what we're talking about in terms of insurance companies in Arkansas. This is from the Arkansas Insurance Department. So in private passenger auto, I got five years here, bear with me on the numbers. 2019, premiums were 2.1 billion, direct losses paid 1.278 billion, for a profit of 63.89%. 2020, premiums collected 2.135 billion, claims paid 1.202 billion, profit 77%. 2021, premiums collected 2.2 billion, claims paid 1.439 billion, profit 53%. 2022, premiums collected 2.3 billion, claims paid 1.9 billion, profit 20%. 2023, 2.5 billion collected in premiums, 1.977 billion paid, profit 29%. Any reason to dispute any of those numbers?

 

Senator Missy Irvin Senator Tucker, if you want to sit with me and file a bill about insurance companies and premiums and profits, I will happily co-sponsor a bill with you.

 

Justin Allen You do a lot of those, don't you.

 

Senator Missy Irvin I do a lot of that. In fact, they're not my biggest fans, obviously. I have repeatedly. I think that speaks to why I'm here sitting here with this bill. I have tread that ground. I understand that landscape. I have worked tirelessly for 14 years to attack prior authorization policy. I know this, and I understand this. That is a completely separate argument. And I appreciate your conflating the issue because you're good at that and you have a degree from Harvard. 

My degree is from Stone County, Arkansas. I'm just a rural girl from Arkansas. That's who I am. I know math and I know what's equal, and I know what's fair, and I know what's balanced. And so I'm here to advocate for that principle, because that's the principle of the people that I represent, understand and acknowledge. And that's what we're trying to do with the bill. But I will sit with you and I will co-sponsor a bill all day long to try to get under control that whole entire landscape. It is absolutely impacting health care in all these different ways. But that's not what we're here today to discuss. We're discussing this bill that's very succinct, very balanced, very reasoned, very intentional and very needed.

 

Senator Clarke Tucker At the end of the day, like Representative Eubanks, when you talk about the cost to the average Arkansas household, unless you're involved in a lawsuit, we're talking about indirect costs, not direct costs. And those indirect costs are really insurance premiums, are they not? And so the point of this is it's the hope that this bill will have impact on insurance premiums in Arkansas.

 

Justin Allen And I don't think there's anything wrong with that.

 

Senator Clarke Tucker But that's the point.

 

Justin Allen This body passes laws all the time with intent to it, but with hope to it that it will have the desired impact. And sometimes it does and sometimes it doesn't. But to Senator Irvin's point, this is also most basically a fundamental fairness issue. And plaintiffs in Arkansas have been and are recovering amounts for past medical damages that don't exist.

 

Senator Clarke Tucker But we have no evidence that, in spite of all of the states that this has been passed in, that costs are lower. No evidence.

 

Justin Allen Any direct evidence. I don't have any.

 

Senator Clarke Tucker Do we have any commitment from insurance carriers that if this bill passes, they're going to lower rates?

 

Justin Allen They're certainly not going to lower rates if the current law stays in place, that's for sure.

 

Senator Clarke Tucker Yeah. And so but that doesn't make the inverse true. Do we have a commitment from them that--.

 

Justin Allen Of course not.

 

Senator Clarke Tucker Okay. Senator Irvin mentioned property and casualty. In 2023, according to the National Association of Insurance Commissioners, the profit was a record $88 billion. I just think that needs to be part of the conversation. That's why the governor, Republican governor of Louisiana, vetoed this bill in Louisiana. Okay, couple more questions, and I'm wrapping Mr. Chair.

 

Senator Alan Clark Let me remind you, we've got others behind you. The chair still hasn't asked any questions yet. And we're an hour and 40 minutes in. And we have five witnesses, including Mr. Allen.

 

Justin Allen This will be the extent of my testimony.

 

Senator Alan Clark Okay. And again, I want how long it takes. I want to get this thoroughly vetted.

 

Senator Clarke Tucker Thank you, Mr. Chair. Senator Irvin listed all the categories of damage. Did you consider, and this is only one, did you consider putting language in the bill to say this does not affect all the other categories of damage? Do you think that would be helpful, a helpful clarification?

 

Justin Allen No. I mean, it is clear. Although I will point out that the same bill was filed two years ago and at the request of Representatives Dalby and Shepherd, change was made to put in the word 'past' necessary medical care, past necessary medical treatment, or past necessary medical services. It's all clearly limited to past medical care.

 

Senator Clarke Tucker Okay. Last question. Will you agree with me that the best way to avoid paying someone else's health care costs is to not injure them?

 

Justin Allen Absolutely, 100%.

 

Senator Clarke Tucker Thank you.

 

Justin Allen Senator Stubblefield. Did you have any more questions?

 

Senator Gary Stubblefield I was looking at Texas. Texas is the state that we modeled after, you mentioned earlier. They have higher insurance rates than us. Does that have anything to do with this?

 

Justin Allen I would submit to you, Senator, that if Texas did not have that law in place, their insurance rates would be even higher than they are now.

 

Senator Gary Stubblefield That what?

 

Justin Allen That they would be even higher than they are now.

 

Senator Gary Stubblefield Really? That's speculation.

 

Justin Allen It is.

 

Senator Gary Stubblefield One more question. Let's say under this bill, a drunk driver who kills or injures a stay at home mom could use the mother's car insurance or health insurance to reduce what he has to pay to her or her family. Is that true or false?

 

Justin Allen I would say that's false. That drunk driver is going to have to pay that mother the amount of all past medical bills that she incurred and the amount that was paid and recovered. And that mother will be able to recover all the other categories of damages, including punitive damages, assuming that driver has any assets to meet that. But that's the reality of today, and this bill won't change that.

 

Senator Gary Stubblefield What if he has no assets?

 

Justin Allen That's an unfortunate situation. And that's going to be the case today, and this bill won't change that.

 

Senator Gary Stubblefield Okay. A motel that aids or abets sex trafficking could use a trafficking victim's insurance policy to reduce what they have to pay for the victim's injuries?

 

Justin Allen What I would say is, in that horrible situation, if the victim has past medical bills as a result of the incident, the events, that defendant, that bad actor is going to have to pay for every dollar of what was paid and accepted. And then we can only begin to imagine the amounts that would be awarded for mental anguish, pain and suffering and punitive damages in  that type of case.

 

Senator Gary Stubblefield And where would that come from?

 

Justin Allen It would come from the person that's engaging in the trafficking. Now, the reality may be they have no assets, they have no money, they can't be found. But that would be the case today. And this is not going to change that.

 

Senator Missy Irvin But Senator Stubblefield, we passed legislation on that very issue. I mean, there is liability now ascribed to exactly that case. And so one of the attorneys that is sitting here against this bill actually helped me with that piece of excellent legislation. And I think it's an appropriate piece of legislation. And there's no way I would sit here in front of you today sponsoring a bill that would limit the mental anguish of somebody in that position. I would never do that. And I'm not going to do that. I would not do that. And I know people in my life and friends that have suffered unbelievable things as women. And you can't put a price on that. And I know that juries and judges and courts struggle every single day with trying to figure out what that is. This bill does not affect that ability of that jury or that judge for that victim.

 

Senator Gary Stubblefield I know you well enough to know. I've known you long enough to know that you would not do that.

 

Senator Missy Irvin I appreciate that. Thank you, sir.

 

Senator Gary Stubblefield I may have some later.

 

Senator Alan Clark There will be points added for brevity and points taken away for long answers. How long has the current policy, current law, been the case in Arkansas? The way it works now.

 

Justin Allen The Montgomery Ward case was in 1998 or 9, senator.

 

Senator Alan Clark Okay, so it has only existed 30 years.

 

Justin Allen Yes.

 

Senator Alan Clark Okay. And before that?

 

Justin Allen The question was unanswered. It hadn't gone up to the Supreme Court.

 

Senator Alan Clark Okay. So it may have been the way it worked, but?

 

Justin Allen Correct. One circuit court might have handled it one way and another one might have handled it a different way.

 

Senator Alan Clark How many states out of 50 would-- if we add DC and Puerto Rico 52 states and districts-- how many handle it more similar to the way Arkansas does and how many have changed to something else?

 

Justin Allen It looks like it's about half and half.

 

Senator Alan Clark About half and half. Okay, so we can discount that. The members of this committee, those presenting the bill, we want as low of premiums for Arkansans as we can get on our insurance. We also want to take care of victims adequately. So Representative Eubanks, Senator Tucker alluded to this. You made a statement about this affecting Arkansas families $3,000 a year. And Senator Tucker may have clarified that a little bit, because I was doing some math in my head about what I pay for home insurance and cars. And I know some of y'all have much nicer cars and larger homes than I do, but I was having a hard time coming to paying $3,000, much less saving. So this is what this is costing me when I buy milk?

 

Representative Jon Eubanks Could you repeat that last part?

 

Senator Alan Clark I'm saying if my total insurance is not $3,000, so that couldn't be there. So are you saying when I go to buy milk, it's in the price of milk?

 

Representative Jon Eubanks I think it could be included in all the products, because I think all industry and businesses are bearing part of this cost, and consequently it gets passed down to the consumer. Will this bill remove that total burden? No.

 

Senator Alan Clark Where did that statistic come from?

 

Representative Jon Eubanks That was from the US Chamber of Commerce.

 

Senator Alan Clark Okay. And you have no idea, I'm sure, as I wouldn't, how they calculated that.

 

Representative Jon Eubanks No, sir.

 

Senator Alan Clark Okay. Mr. Allen, if I have to hire an attorney, and you use the term a third, and I have found that seems to be the general, can I be made whole?

 

Justin Allen And that's one of the points as to why I say frequently, no.

 

Senator Alan Clark Okay. Can you, and I know that this is a calculation, but can you know future health damages?

 

Justin Allen Not for certain, but there are experts, life care planners when you go to trial about future health expenses who testify that the court recognizes, whether it's a trained physician of the plaintiff or a third party physician. Yes, they, within a certain degree of certainty, the court allows them to testify as to what it's going to cost for future medical. And the jury will ultimately determine if they buy that number or if they think it should be something different.

 

Senator Alan Clark Because when I'm paying premiums, I, like the insurance company, would like to have a here's what the cost is. Okay? But when I'm the victim-- we've got a Senate colleague that visited with me this week that had an accident four years ago and recovered damages but didn't know that his back was still going to be hurting four years later and probably from now on. I had a similar thing. 

Somebody hit me from behind. I was stopped behind a school bus. Their brakes went out and there wasn't much damage to the pickup. The asked me if I had anything healthwise, and I said no, I didn't think I did. Then, after my neck had been hurting me for a year-- I didn't think whiplash was real, skeptical guy. After my neck had been hurting me for a year, I went and got in my pickup and I didn't have a dual cab then, and I tried to reach my head back to the window and I couldn't do it. And I realized-- because I hit my head hard against the back window-- and again, wasn't seeking anything, didn't want anything. But I had no idea that I was going to have that pain and no treatment for the next two years. So that's not an uncommon thing, is it?

 

Justin Allen For an incident to manifest other injuries or pain? No, it's probably not.

 

Senator Alan Clark And like you said, we come in as we look at these different silos. And as we talk about silos, we have a thing here that those of us within the building know as adequacy. It's how we do education funding. And we on the Education Committee, when I was on the Education Committee, we figure out for a school of 500 what it's going to cost for a principal, what it's going to cost for a nurse, what it's going to cost for curriculum, what it's going to cost for equipment, computers, maintenance, etc. But our superintendents and school boards always remind us that it is a funding formula, not a spending formula. 

That however much we give for maintenance may be less or more, however much we give for salaries may be less, may be more, etc. And so coming back to this one, if what Senator Tucker pointed out that a judge has never come to the conclusion that somebody has been more than made whole, if we eliminate one of the silos where the victim is getting money, like adequacy, we were reducing adequacy where there might have been more over here because none of our calculations are are exact.

 

Justin Allen But in this situation, the calculation is exact. We know exactly how much was paid.

 

Senator Alan Clark And same thing. I make the argument all the time about transportation. Small school districts are getting the short end. Because they have all this rural area that they're traveling and that we could break that out. But I can't get this legislature to do anything about that. But there are some things that are hard and fast. But if we do pull those out, we change the equation toward one side versus the other. Because if I could get them to do that, it would very definitely benefit small schools and take money away from large schools.

 

Justin Allen Sure. And if I'm following you, I know enough probably to be dangerous about adequacy, but you're forecasting future costs when y'all are setting these adequacy reimbursements. And that would be, I think, a really good analogy to forecasting future medicals. But with regard to House Bill 1204, we're talking about things that happened in the past and we know precisely what was paid up.

 

Senator Alan Clark What percentage of these cases settle?

 

Justin Allen Personal injury cases? The vast majority. I think Senator Tucker does some mediating these days. He's probably got a better feel for that than I do, but it's the vast majority.

 

Senator Alan Clark So let me tell you one of my pet peeves, way before I was ever in politics anyway, about this whole system that I'm not involved in except for paying premiums is do insurance companies just like  paying trial attorneys?

 

Justin Allen Dislike?

 

Senator Alan Clark No, like paying trial attorneys. And let me tell you why I ask. If the trial attorney is getting a third. Being a retailer, I know just automatically that I've got to get 50% more to pay the third. So for me to go to a trial attorney, I've got to believe that I'm going to get at least 50% more than what I've been offered, and actually more than that, because I need the money now. I've got these bills to pay. I'm injured, etc. And so the fact I'm trying to figure out why people have to go to attorneys. It seems like it'd be a lot cheaper to make a higher offer to begin with.

 

Justin Allen And I would think a lot of people do do that. And I would expect in most minor incidents, again, the automobile cases that the plaintiff, the injured party, ultimately settles without representation with the insurance company, whatever amount they arrive at. It's going to be the more significant cases where the injured party is going to most likely end up with counsel. And that always changes the discussion. The insurance company at that point brings in counsel and then it's the two lawyers talking to one another.

 

Senator Missy Irvin Can I say?

 

Senator Alan Clark Sure.

 

Senator Missy Irvin Actually also it depends on the insurance company. I mean, I can tell you USAA, I'm able to have USAA insurance because of my dad's military service. And they actually issue payments before any claim is ever made in certain cases just to help with those front end costs to where it never then, to your point, they take care of that. So there are some out there, just wanted to mention that.

 

Senator Alan Clark So let me ask, a large retail chain that operates in the state has a substantial employee discount-- at least they do in December for Christmas-- that I was not aware of. But they frown on their employees going in and buying something for me on their employee discount. They would also frown on them buying something for their local insurance company or agent with their employee discount. 

So if we were going back and this was a medical expense because there's other expenses, the whole idea is that this chain wants to provide a benefit for their employees, not for an insurance company, not for anybody else out there. So is the argument we're making, because on the top I like it and seems to be a sensible argument, but argument we're making is that if the employee had bought something large, let's say a boat, and the boat gets destroyed, then the insurance company should only have to pay, not the book value, which is what we normally go by, but because you work for this chain, you actually got a discount. So we should pay you less.

 

Justin Allen For the value of the product? Yeah. That's just a different assessment of damage, Senator, when you're talking about property damage as opposed to medical health and treatment, especially past.

 

Senator Alan Clark But is it?

 

Justin Allen Yes.

 

Senator Alan Clark Okay. And but I'm also sitting here, probably unusual in this group, not unusual in the general community, but didn't have health insurance for many years. Are y'all telling me that when I went in with no insurance that I got the Medicaid rate?

 

Justin Allen What I would tell you based--

 

Senator Alan Clark Because you were saying the right isn't real. It seemed real to me.

 

Justin Allen If you're uninsured, I'm telling you a great deal of literature says that the uninsured pays nothing for the health care. But I'm sure there are situations where the uninsured does reach into pocket and pay some amount, which they will then be able to recover from the defendant if they settle or get a verdict.

 

Senator Alan Clark Because one of the reasons I have health insurance now is I was sold on the fact that the insurance company is going to get a discount that's going to benefit me. So the person over here, and I'll use my son, for example, who at times struggles to pay rent and is trying to figure out how to carry medical insurance. If he's in an accident, we're going to go back and say, we want to pay what the insurance paid. 

However, if he says, I can barely pay rent, I'm going to drop my health insurance. We're going to go back and pay retail because he decided not to be responsible and carry health insurance. So the person who is responsible and trying to make sure everything's taken care of really is the loser in this situation.

 

Justin Allen It will depend on what the uninsured person ended up paying. But they're not the loser in this situation because, number one, they had their health care paid for by their insurer because they paid their premiums. And number two, if it's private insurance, there's probably not going to be any subrogation and they are going to get to recover from the defendant as well.

 

Senator Alan Clark How is that discount different because I chose to be responsible versus working for the retail chain?

 

Justin Allen What I would say is people make decisions, personal and business, hospitals, insurance companies, individuals for a myriad of reasons. What we're saying here is if somebody causes you injury, one of your areas of damages is past medicals, you get to recover what was paid and accepted. And I said it earlier, I don't think that we want, as a policy in this state to take two different plaintiffs who paid two different amounts for their past medical bills to recover the same amount. Each case is unique, each case is different and should be evaluated. And when it comes to past medical damages, do the math. Plug in what was paid and accepted. And if the hospital held firm and said no, you owe us every dime of that charged bill, that's what you get to recover from the defendant.

 

Senator Alan Clark Okay. Committee, we have people who have come to testify. It is now noon. Do you want to continue? Most of you are nodding yes. I shouldn't say everybody. So any other questions from the committee?

 

Senator Clarke Tucker I would just pose that same question to the bill's sponsors. They may want a break.

 

Senator Clarke Tucker Well, I didn't pose it to the bill sponsor though. And I normally assume if I'm presenting a bill, I'd like to get it heard. Okay.

 

Senator Missy Irvin I think I probably will go back there.

 

Senator Alan Clark Feel free to take a break.

 

Senator Missy Irvin Thank you.

 

Senator Alan Clark We're going to move on then. Seeing no other questions by the committee, we have five people signed up to speak. And Mike Boyd is first on the list. Speaking against. Mr. Boyd, you can see that we may have lots of questions or we may not. So I don't want to be unfair to you. You present what you need to present, but brevity will be appreciated.

 

Mike Boyd Thank you, Mr. Chair. It is with some trepidation I take the seat after watching all those questions. But I'll do my best. And thank you to the committee.

 

Senator Alan Clark Please state your name.

 

Public Testimony

Mike Boyd Yeah, my name is Mike Boyd, and I'm from Magnolia. I am an attorney. I've had a private practice for 25 years in South Arkansas, where I have the privilege of representing folks from all walks of life, represented families in the worst of times, losses of loved ones, going through divorces. I represent folks, workers that were injured on the job. I represented small businesses that were forming their businesses and walking them through the hurdles and challenges that they would see. 

I represented bigger businesses that were being harmed by even larger businesses. I represented folks that were harmed due to no fault of their own. I prosecuted criminals. I've defended a few alleged criminals. And I was city attorney for just over a decade in Magnolia. I say all of these things not to apply for a job. I have one of those. I say that to convey to you that I know firsthand what it's like whenever a family suffers a harm, when harm befalls them because of someone else's wrongdoing at a time that they least or don't expect it.

 So it puzzles me when I see a bill like this. I guess about one thing I do agree with Senator Irvin, this is a simple bill, only in that it's five lines. But I assure you it has massive implications to your friends, your neighbors, the folks you go to church with, the people you see at the ball games. You'd be forgiven, though, for thinking, how could these five lines cause such a harm? Well, first I would suggest to you with respect that any time a bill lands in your lap or these days more likely in your email inbox, and it starts with the proposition that someone who is harmed, not the one causing the harm, but someone who is harmed is getting a great deal that they shouldn't, that should probably raise a red flag to you. 

The second thing I would tell you is it's called the collateral source rule for a reason. It's collateral. It is not connected to the thing. It is independent of the defendant, of the wrongdoer. It shouldn't be considered. And that has been the law for centuries. It is common law. It is and what was followed by this state. And it was challenged and it was upheld. So don't be misled that this is new law that they're asking you to overturn. They are not. They're asking you to overturn long settled principles. I would ask you to adjust your focus. 

And what I mean by that is, respectfully, the drafters of this bill are asking you to look at this from the wrongdoer's perspective. They're asking you actually to look at it from the insurance company's perspective. And I would ask you, on behalf of all of the folks I've represented over the years and the people that I live around in South Arkansas and all my family, is to look at it from the injured Arkansas worker. Their perspective. The Arkansan that gets up and goes to work every single day. The mill worker, the daycare owner, the school nurse, the bank teller, all those folks. The police officer that goes to work every day and in every paycheck there's a deduction for their health insurance and they pay it. They pay it. Every time they pay it. Even if they have a car break down, they pay it. Even if the groceries go up, they pay it. Even if daycare cost expense goes up or gas rises, they pay the bill. 

Why do they pay that bill? They pay it because they're concerned that they may get sick and need it. They are, in fact, they're betting that that could happen. The insurance company, the health insurance company, mine's Blue Cross Blue Shield, the insurance company is betting that they won't get sick. And by the way, as we all know, the health insurance company gets to set that wager. They get to set that price, not you. So keep that in mind. And what neither of them is betting, neither the health insurance company or your neighbor, neither of them is betting on a third party running them over because they were texting and driving. Neither one of them. That's not part of that calculus. That health insurance premium that gets deducted every single time, as you've heard, even from those that are promoting this bill, that's part of what, in my instance, BlueCross BlueShield uses to bargain for certain prices for medical treatment. 

And that does typically result in a reduction of the bill at the local doctor or the local hospital. So I would ask you to look at while you're looking at this from the working Arkansan, from that perspective, ask yourself, who does this help? Who is so interested in this and why? Is it the national society of wrongdoers? Is it the association of defendants who text and drive? Of course it's not. Let's just call it what it is. It's an automobile insurance company. It is out of state automobile insurance companies that are asking you for this gift.

 You know, and as Senator Tucker has wonderfully pointed out, those are the guys that are making massive profits. They've had a great run. And you know what? Good for them. I have no problem with businesses making profits. Have a big problem when they come back to the trough to get something from an Arkansas worker. Are they doing this because they brought you proof here today that this is going to lower premiums for Arkansans? This is going to help. It's going to cause X to occur to benefit your neighbor and the people you sit in a pew with at church. Have they done that? Of course they haven't.

 Have they even said to you, this is going to definitely slow down the increase that we all see in our monthly statements on car insurance? Haven't done that either. And that's because they can't. They haven't shown you that because they can't. It doesn't exist. The states that have done this around us have seen their rates go up. You've heard. They will not tell you that this is going to help. Well, then who is it going to help if it's not helping your constituents? If it's not helping my neighbor and your neighbor, then who is it helping? 

I would imagine that a body like this, you guys see, I know tons of paper, tons of bills, tons of things. But I would imagine that you would want that definitive proof before you made a change of this magnitude. I hope that you would. For every dollar that a hardworking Arkansan, that their medical bill is reduced, every dollar that's reduced from that person that's been paying their bill, the wrongdoer's insurance company is going to get that dollar. That's what this bill does. Surely that is not your intent. This bill is not about, with due respect to Senator Irvin, I know she's very passionate about the medical field. I can understand that. 

This has nothing to do with that. This has nothing to do with transparency. This has really nothing to do with small businesses, frankly. Small businesses need their workers at work, not injured. This will not lower or slow any bills. So there are lots of consequences to this. There's been a lot of dust, in my opinion, a lot of dust thrown in the air. Things that aren't related to this and don't have anything to do with what they're asking you to do. And I would ask you to vote against this bill. I'd be glad to answer any questions.

 

Senator Alan Clark Questions. Senator Johnson first.

 

Senator Brian Johnson So, the analogies and the debate that we've heard, and I'm assuming you're a defense lawyer.

 

Mike Boyd It's even worse. I'm a lawyer for a bank now.

 

Senator Brian Johnson Would this reduce the possible medical cost in the total. Would that reduce the dollar amount that someone who is trying to bring that case and the lawyer, would that reduce his total award also?

 

Mike Boyd The harmed person, reduce their award?

 

Senator Brian Johnson No, I'm talking about you as a lawyer, if we just strictly do the cost.

 

Mike Boyd Sure.

 

Senator Brian Johnson That affects the whole total. So will that affect what your recovery is in dollars?

 

Mike Boyd Yes. Because the percentage, the attorney is generally working on a contingency fee. That's a percentage. So yes, if the amount recovered is lower, the amount the lawyer gets is lower. But it affects the victim twice as much.

 

Senator Brian Johnson I understand. But there's an interest on your part and the insurance part in this whole.

 

Mike Boyd I don't,because I don't even practice privately anymore. But I would tell you that, again, if you're interested in rolling back or trying to affect what the attorneys are getting, this is the wrong way to do it.

 

Senator Brian Johnson No, it's not--

 

Mike Boyd Because you're going to affect the harmed person twice as much as the attorney.

 

Senator Alan Clark Senator Tucker.

 

Senator Clarke Tucker You really just said it. But if a case is on a contingency contract, by definition, if the attorney's fees go down, than the amount recovered by the injured person goes down by, in most cases, twice as much.

 

Senator Brian Johnson So I'm going to assume that whatever this reduction in medical is, the person is going to get 66% and the lawyer is going to get 33. Is that pretty accurate?

 

Mike Boyd Well, I guess I would add to that, only because there has been some discussion of this, is the multiplier matter and how cases get worked up and actually settled and the reason why those get settled as opposed to going to trial. And what that actual medical is, what that bill as it comes plays a large role in how the value of that case is determined.

 

Senator Alan Clark Senator Tucker.

 

Senator Clarke Tucker Just for what it's worth, not for nothing, there are cases on that where lawyers are paid on an hourly basis as well.

 

Mike Boyd Sure. Many of those.

 

Senator Clarke Tucker And attorney's fees in those cases, this bill will have zero impact on attorneys fees in hourly cases one way or another.

 

Senator Alan Clark But I assume that whatever an insurance company and the victim and their lawyer settle, everyone assumes is a fair amount or they wouldn't have settled. Or as fair as they can get.

 

Mike Boyd Right. So I learned a long time ago about the difficulty of the word fairness. And I heard that up here. It's hard to say that it's fair. It's sometimes just the best result given. Because when what the adjuster has told you is, well this is our best offer. Well, then the next thing that happens, if that's not good enough, is will we have to file a lawsuit. And then you have to tell your client, listen, I'm going to file this lawsuit today for you or tomorrow, and it's going to be a minimum of a year before we see the inside of a courtroom. So yeah, there's a lot of extraneous factors that go into why people take that. I've got to have something now or I need to finish this now. I've had cases last for more than six years.

 

Senator Alan Clark But if it goes to trial, then I'm assuming that a jury thought that whatever they came up with was a fair amount.

 

Mike Boyd Absolutely. But that, of course, is dependent upon the evidence that's allowed to be presented to them.

 

Senator Alan Clark I know what our issue is.

 

Mike Boyd Yes, sir.

 

Senator Alan Clark So then someone's not coming to you then if they felt like they got a fair offer.

 

Mike Boyd Correct, correct.

 

Senator Alan Clark So all of that could be eliminated with the fair offer, assuming that the much more we're getting is the fair amount.

 

Mike Boyd Absolutely. Yes. If insurance companies did better on the front end, they could help themselves tremendously. And more importantly, I'm not here because I'm worried about an insurance company. And I find it interesting that nobody here says that they're for an insurance company, although this bill is for an insurance company.

 

Senator Alan Clark Well, since you're first up against you get to answer some questions.

 

Mike Boyd Yes, sir.

 

Senator Alan Clark Not even to make a profit, just to break even. I have run a small business most of my adult life, almost all my adult life. And I've got to make payroll and benefits. I've got to figure out what all that's going to be. I've got to figure out what maintenance is going to be, what rent is going to be, what fuel is going to be, equipment's going to be, etc. And then I get to the two for me, and I don't think I'm alone, the two most egregious expenses that I have. The first is taxes. 

And because I never hesitate to think about, and maybe other business people do this, but about how hard I'm working and is it really worth it to do all of this and then to pay taxes and to pay insurance. And health care is really the most egregious insurance of all the insurances that I pay because of the amount, not because of what it does, but because of the amount. And like I said, I don't think I'm alone in small business. In large business, too, I'm sure. But small business of saying, insurance is enough that I don't know if I want to do this. So we've talked about taking care of victims. But low premiums is really important. Wouldn't you agree?

 

Mike Boyd It's important to everybody where I'm from.

 

Senator Alan Clark So low premiums is really important. And right now Arkansans and I'm sure other states are the same, but we deal with Arkansas, Arkansans, when they get their new insurance rates are screaming because of the hailstorm, because of tornadoes. And I've got bad news. With the fires in California, it's going to get worse. And so is it even a fair argument to say that insurance rates went up in these other states? 

We can talk about the profits they've made in the past, but here recently, I sat in the meetings where the insurance companies told us exactly what they had lost. And if they continue to lose, they can't stay in business. So is it really a fair argument to say that even though the states that did this, the idea is to get a fair cost over the people who are paying side, that they didn't get a better rate when these other factors are at play?

 

Mike Boyd Well, I think the point trying to be made on that is, if I'm understanding your question, is the claim is that, well, all these states around us are doing this, which is not completely accurate because there are  differences in what some of them are doing. In Louisiana, as you heard, actually, their governor vetoed theirs. But in each of these states, what you would have expected to hear would have been the result. 

You took an action that we're now being asked to take, that you all are asked to take, the government, and you would have expected to have heard, oh, we had a great result from that. And here's the evidence. I mean, you heard they quoted to you all these other statistics about so-called tort burden cost and some of these other statistics and papers from Maryland and Mississippi and wherever. And I can understand them using those. But when you bear down on the issue, when you say, show me where this is worked to the benefit of an Arkansan, or in that case, a citizen of that state, they can't show you that. And that should mean something in my book and the people that I'm around.

 

Senator Alan Clark Okay. Any other questions from the committee? Senator Stubblefield.

 

Senator Gary Stubblefield How many attorneys do you think a victim would have to hire in order to take care of one of these?

 

Mike Boyd Say that again.

 

Senator Gary Stubblefield How many attorneys would a victim have to hire in order to get around one to these?

 

Mike Boyd Get around?

 

Senator Gary Stubblefield One of these type of cases.

 

Mike Boyd I'm not sure I'm following the question. You're talking about what would an injured person, how many attorneys would they need to hire?

 

Senator Gary Stubblefield Right?

 

Mike Boyd Well, you'd hope they wouldn't have to hire anybody. But to navigate it, they generally do have to hire an attorney.

 

Senator Gary Stubblefield They wouldn't have to fire anybody to get justice?

 

Mike Boyd They shouldn't have to hire anyone to get justice. They shouldn't have to. But they do.

 

Senator Gary Stubblefield They will.

 

Mike Boyd They will. And they do it on contingency fee, because most people are not going to be able to pay, particular while they're not working, they're not going to be able to pay an attorney to do what they need to get done. These days, the attorney is not just dealing with the insurance company, they're dealing also with the health insurance company. They're juggling a lot of those negotiations.

 

Senator Gary Stubblefield So in order to get that justice, there's a possibility they would have to hire numerous lawyers.

 

Mike Boyd It's possible, but it depends. It depends on the scale of the case or who's refusing to do what. But no one, I can assure you that, first of all, no one wants to file a lawsuit that's ever sat in a chair in my office. And of the people that experienced it, never want to experience it again. Not pleasant.

 

Senator Gary Stubblefield Do you know why the governor of Louisiana vetoed that bill?

 

Mike Boyd Because he said it was just a simple handout to the insurance companies.

 

Senator Gary Stubblefield Thank you, Mr. Chairman, that's all I had.

 

Senator Alan Clark Other questions from the committee? Seeing none, thank you, Mr. Boyd.

 

Mike Boyd Thank you.

 

Senator Alan Clark Mr. Allen. I just want to confirm, because you're on the list. Because you are for. So we'd go to Fors after that, and you're good. Okay, so we're going to go to Beth Wyatt. Miss Wyatt, would you make sure your mic is on and state for the record your name, where you're from, and who you represent.

 

Elizabeth Wyatt Sure. Thank you. My name is Elizabeth Wyatt. Call me Beth. I'm sitting up as tall as I can. I'm sorry. I am from Arkadelphia.

 

Senator Alan Clark Okay. You may proceed.

 

Elizabeth Wyatt Thank you. Thank you for being here. I'm a little bit nervous. I am a retired educator, and I've been sitting here all morning listening, and it's been very interesting. But I would like to give you a real scenario in real life. We heard a lot of what ifs. We heard a couple. And I'm sorry about your grandson's wreck. We've heard a couple of people, but I'm living it right now. So let's put this dog and pony show to work. I'm a retired educator, working 16 years in Arkadelphia public schools or in Arkansas public schools. I worked eight years at our local education cooperative, Dawson Co-op. I worked one year as a literacy coach at Inter Americano in Guatemala City, Guatemala. And my last position was as a professor of reading at Henderson State University. I am now a professor emeritus at Henderson State University. I still have an office. It's kind of nice. On July 5th, 2022, I was hit head on a mile from my home. I was driving on Arkansas Highway 67, the young man, Jesus Vasquez Garcia, was a recent graduate of Henderson State University on his way to turn in his used textbooks. There were no drugs involved. It was 230 in the afternoon.

 

Senator Alan Clark Can you bring the mic any closer?

 

Elizabeth Wyatt Is that good?

 

Senator Alan Clark Yes, I think so.

 

Elizabeth Wyatt He went to Henderson to return his used books. Straight away. No curves. Beautiful day. No texting involved. It was just a simple accident. He spent a week in the hospital. And now he's at Hendrix. He's going to graduate soon with a master's in business. He was considered an excluded driver, even though he paid the driving insurance. And I had to fight to get the $25,000 minimum. He also had to pay a fine of $315. It would have been more if I had died. But I was too stubborn. And it was 315. And it was that high because I refused to drop the driving left of center charge. He's now done with this accident, completely done with it. His journey is over. After the event, I ended up less than 50 feet from a fenced off power gas line. I was 50 feet off the road. Hugging a tree. 

My car was against a tree. I was trapped in my vehicle while it was on fire. I was screaming at the bystanders, one of whom I had gone to high school with. And he said he was terrified because he was watching his friend die. And I was screaming, please don't let me burn. The obvious injuries are my loss of both legs. I had two amputations on each leg. So that was four. They did above knee after the below knee failed. I have second degree and third degree burns from my hairline down to my where my knee should be. The loss of one eye. 

I have a TBI which includes two brain bleeds and a concussion. I have limited use of my left arm. Limited use of both hands. I've lost a spleen. I have recently found out that I have three chronic illnesses, amputation, burn, and the loss of a spleen. Because I have to continually monitor my progress with those three things. I have many internal injuries. I had pneumonia on both lungs twice. I had grafting three different times because the first two grafts failed. Fortunately, because I was a teacher in Arkansas, I had very good insurance. The insurance company was good and my lawyer, of course, fought very hard for me. However, I did have to fight to get my $25,000 from Trexis Insurance. 

They are the insurance that insured Jesus Vasquez Garcia. The truth is, if the insurance company had done the right thing, I wouldn't have needed my fabulous lawyer. I've never sued anyone. I didn't want to sue the insurance company. If they had done the right thing, I wouldn't have needed to bother with it. This wasn't some greedy lawyer that I hired. He didn't come to me. I came to him. I didn't want somebody who did this every day for a living, necessarily. I wanted someone who would fight. And he did fight. He fought against Trexis, a multibillion dollar behemoth who didn't want to pay me $25,000. They knew they owed me. And all this time, I was fighting for my life. I had the option of continuing a lawsuit to help cover lost wages, much like your bill is insinuating, I will have to do. I had that option. 

But Jesus Vasquez Garcia had nothing. He was a student. His mother cooks on an outdoor pit in the backyard. And at the time, honestly, I was more interested in living. You see, when I went to the hospital, I had a blood pressure of 40. That's it. 40. I didn't need the hassle of having to fight another battle, one that I didn't cause, one that I didn't ask for, but one that severely changed my life and my family's life and my friends lives. Like many other Arkansans, I was pretty powerless anyway, just having to accept the minimum amount of insurance the faulty party carried. Again, once I signed over, I signed off on that $25,000, he was done. His journey is over. Mine continued. I was flown to UAMS where I spent 17 days in ICU. And the doctor's notes mentioned imminent demise more than once.

 I was then transferred to Children's Hospital for 67 days in the burn unit, after which I moved to Baptist Health and Rehabilitation for 14 more days. You see, I spent 67 days in an ICU setting. My bill from the first 48 hours was over half a million dollars and about a thousand pages of doctor's notes. I had 19 surgeries before I went to Baptist rehab, four surgeries after rehab, three sets of prosthetics, a manual wheelchair, an electric wheelchair, a shower bench, a new refrigerator. I had to get a side by side because I couldn't reach it up here. And I'm getting a new stove because the handles are all on the back. Things you don't think about when you're whole. 

We had to leave our home for an apartment, and I'm in the process of, again, purchasing the new stove. I had to take doors out of my closet so I could get into my closet. We even had to buy a chair. We didn't have to. I mean, my husband could have been stronger backed, but as a paramedic, his back is shot, so he had to buy a chair that goes in my car and it turns and comes out and goes down to wheelchair level so he doesn't have to pick me up to put me in the car when I can't wear my legs. I tell you all of this.,Not because this bill will impact me today. It won't. And I'm hoping you will understand the outcomes of someone doing the right thing. I worked for over 40 years as a teacher and loved it. 

And I loved working at Henderson teaching pre-service teachers how to teach reading, to see them look at the child eyes when they're teaching them to read for the first time. And they're in my class, and I'm watching them teach a child. And the child's face lights up and their face lights up and my face lights up. I'm not doing it. 40 years of teaching and following the laws, except for one speeding ticket. Jesus Vasquez Garcia hit me, and he had insurance. He was paying for himself. But his dad had him listed as an excluded driver. He was 21 years of age, I believe, at the time. He'd been excluded driver since he was 16. He had no idea that he was an excluded driver. He had gotten tickets while being an excluded driver. He purchased his vehicle. He had to have proof of insurance. 

I hope I'm making this more real and understandable for you and for the people who aren't lawyers. When I heard about this bill, I started researching. It's not a new tort we need. It's insurance reform. Legislation doesn't work for this. Not anything that helps insurance companies while making it harder for me or you and all of your other constituents. Makes it harder. These battles are not easy to fight. It's an uphill battle. This bill makes it even harder on people who find themselves in horrible situations at no fault of their own. Kind of like me. Any personal injury can be horrendous, no matter how it happens. But to have to face trying to get the other party to pay is insulting and exhausting. 

And that's what this bill is asking me to do, is use my hard earned money in insurance to pay for my illness. The statute of limitations on my case was three years. It's been two and a half. Ten months of those two years were taken up by Trexis Insurance using every kind of sophisticated delay tactic possible to get out of paying what we all knew they owed. It was enough to bring me and my family and my friends to tears and at times, insanity. It truly was adding insult to injury. But my story, my journey is still not done. Jesus' is. His ended 10 months after. Mine is still ongoing. I was in rehab for two years. I was not strong enough to have faced a trial. As you can see right now, I'm having trouble facing you all. And this isn't supposed to be stressful. I didn't have time to get a case together. 

This is exactly the scenario House Bill 1204 is proposing. As a survivor, you see, I'm not a victim. I refuse to be called a victim. I'm a survivor. I can tell you this is a huge problem. I have ongoing expenses and I will have for the rest of my life. They're all due to an incident that I had no control over. This bill punishes victims over and over again by making us go to court, whether it's one lawyer or 14. It's punishment. I promise as the law exists now it is hard enough on victims or survivors. 

This change truly hurts them even more. As I was listening, the insurance company kept talking about I could get reimbursed. You'll get reimbursed for all of your expenses. I haven't been reimbursed for anything. The 90 days that my husband drove up to little Rock every single day, he couldn't stay with me because it was Covid. Every day he drove to the hospital, sat in the waiting room at UAMS to find out if I was alive that day or not. Before I even left the hospital I got a bill. I wasn't even awake to know it. I was lucky enough to have a husband. Someone to to help me. You see, I was out for 40 days. If you're familiar with the Bible, 40 is a magic number. Was for Noah. 41 came, and I don't know why God chose me, but I want to do all I can to help the people like me. 

The little man, literally and figuratively. I want to help us. Those of us who work hard, who pay our taxes, who pay extra for insurance. In closing, I would like to thank all of you for listening. I've never been political except within our family, or I have never testified for or against a bill. This is all new to me and I likely never will again. But I'm here because I want to help you see past the lobbyists and the talking points of the real life results of this legislation. All I heard this morning was that it would benefit doctors, hospitals and insurance companies. It would cause me to go to court many times over. You see, my husband had to retire after this as well. He can't face, he can't face being a paramedic anymore. I had to retire because of this. I lost wages. I can't run after my grandchildren. 

All my granddaughter asked for this year for her birthday was for me to wear my legs so I could run after her. We walked around the yard. See, my journey isn't over. It didn't end ten months later with that $25,000 check. I'm just now able to get up in the morning and look in the mirror and not think of Jesus Vasquez Garcia. I pray for him every night. I pray that he is successful and that he has a good life. And I pray that he stays healthy. It wasn't his fault this happened. But he should be the one held accountable. 

Trexis should be the ones held accountable. Not me. Because I'm not $1 billion corporation. I'm a retired teacher who's married to a retired paramedic. Two people in this world you cannot do without. I hope you remember me and what I've said and the real life results. And you'll think about me and the people back home. And your wife. Your daughter. Your husband. And I hope we can trust you to do what's right for us, the little people. Thank you. Do you have a question?

 

Senator Alan Clark Questions from the committee?

 

Elizabeth Wyatt I'm sorry. That was a teacher in me.

 

Senator Alan Clark Miss Wyatt, do you know what your total health care costs have been up till now? Or close

 

Elizabeth Wyatt $3, 4 million.

 

Senator Alan Clark 3, 4 million. Do you know whether that is, and I understand if you don't know, do you know whether that is retail or what insurance actually paid?

 

Elizabeth Wyatt That's the bills we've gotten. We're in charge of all of that now. Yeah, that's what we got on the bills.

 

Senator Alan Clark Okay. But you have health insurance, right?

 

Elizabeth Wyatt Yes, I have very good health insurance.

 

Senator Alan Clark Yeah. Do you know if that's what they paid or they paid less?

 

Elizabeth Wyatt I don't know what they paid.

 

Senator Alan Clark All right. Thank you. Any other questions from the committee? Senator Stubblefield?

 

Senator Gary Stubblefield Thank you. Chairman. Ma'am, you didn't want to sue. You didn't want to hire an attorney. You spent a whole year fighting insurance company for $25,000. Is that what I heard?

 

Elizabeth Wyatt Yes. Yes.

 

Senator Gary Stubblefield And part of your premium paid went for a discount for the boy that hit you?

 

Elizabeth Wyatt I have no idea. I don't know.

 

Senator Gary Stubblefield I thought that was part of the-- is that true?

 

Elizabeth Wyatt I'm looking at my husband because I was not mentally able to do it.

 

Senator Gary Stubblefield There was a discount paid to the boy that caused? Okay. All right. That's all I want to know. Thank you.

 

Senator Alan Clark And out of the 25,000 you received, you paid your attorney?

 

Elizabeth Wyatt Yes. And whatever else. I mean, it didn't touch the bills, but we paid what we could.

 

Senator Alan Clark Of course not.

 

Elizabeth Wyatt What little we could.

 

Senator Alan Clark Okay. Any other questions from the committee? Thank you. Next we have Denise Hoggard. Everybody else is against. Since Justin Allen didn't testify, everybody's against that's testifying. Denise is coming. Appreciate you being here today. I had other victims that contacted me. And I asked them to come and they didn't. To show us what can happen and how your life is, regardless of money, how your life is disrupted and not just disrupted, totally changed. So thank you for being here. Miss Hoggard, would you like to, and whether you like to or not, would you please give us your name, where you're from and who you represent for the record?

 

Denise Hoggard I'm Denise Hoggard, and I have had the opportunity to read about your biographies and know you and some of you I know personally. You haven't had that opportunity to know about me. I am a lawyer. For 41 years, I've represented both plaintiffs and defendants currently employed at Rainwater, Holton, Sexton. I'm the past president of the Arkansas Bar Association. I'm also probably unique in this room. A member, former member of the State Bar of Texas Board of Trustees. I am a current licensed Texas lawyer. I have spent my career advocating as my calling to speak for those who can't speak for themselves. 

So my role has been to speak for Beth, or people injured who don't have the ability to have a lobbying effort or hourly paid lawyers to speak for them. But they need a voice. And it's my responsibility to speak for them with all my might and to do that for their best interest, not mine. I want to tell you that when this bill was first filed, I was sitting bedside of my father, who was in the Baptist Spring Hill, and kudos for the health care he received there. He was there for post-surgery heart attack. 

We were able, after several days, to get him well enough to take him to the VA, where he is now in a rehabilitation hospital, and I get the pleasure of sitting with him bedside there. And I was struck when this bill was passed by how different this would look for my father if he'd been injured by negligence, which he wasn't. He got great care. He's a 92 year old Vietnam veteran who served in Korea as well. What this bill would do is if he was injured by someone to negligence, it would mean that the insurance company representing the wrongdoer would get the benefit of the fact that my father has Medicare. 

He has a Medicare supplement he pays for. He has Tricare and he has access to the VA. That was because of his sacrifice. That was because he put his life at risk for his country and the benefit of the discount that he may have earned by making prudent decisions and personal sacrifice. But it would be transferred from him under this bill. As I sat there and looked at my dad's circumstance and thought about clients, I thought about the average cases that come through. And, Senator Rice, to your point, an average case that I look at is about $20,000 in medical bills. So what happens in a negotiation now with the insurance company when there's $20,000 worth of medical bills? 

Well, if you used the multiplier that we heard at House Judiciary of 2.5 times, that means that the amount of the value of that claim, Senator Rice, if you'd been hurt by someone, either through their intentional or their negligent conduct would be $50,000. If, however, you had private health insurance that you paid the freight for, the value of the case, assuming $6,000, was what was actually paid would be, $15,000. And so if you had to hire an attorney for $15,000 recovery, you would get 10,000, which restores you for your 6,000. Yes. And gives you a $4,000 pain and suffering and other expense recoup. All that gives you. And that's assuming that your insurance company paid $6,000. If you look at Medicare, then the likely amount that would have been paid is less. So it would have been 2,000 or 1,000. Medicaid, Medicare, those numbers are going to be somewhere in that range. 

And so if we applied the same multiplier, which is what the insurance industry does, that is not affected by what you do here today, Then your recovery would have been, let's be generous and say 2,000 times 2.5 and then you would owe back the amount that was paid by Medicare on your behalf, because subrogation is not a rarity. It is a legal right that Medicare has, Medicaid, the VA, federal insurance health insurance has, Arisa employer plans have. Those things all have to be repaid out of what you're ultimately able to recoup. For a $20,000 case now, 20,000 in medical bills, for which 1 or 2 or $6,000 are paid. 

It may, in fact be economically infeasible for you to hire a lawyer and go through the additional expense and time to await a fair determination of your injuries by a jury. That's the reality of the practice. So whenever I was listening to Senator Irvin, who I've worked with on sex trafficking cases and I have abundant respect for, she talked about the balance of the scales of justice, and she talked about that ancient symbol. And so I wanted to touch on that a little. If you put injured Arkansans on one side of that scale, and the other side of that scale, you're trying to balance the insurance company by this bill is putting their thumb on that scale and tilting it more in their favor. 

Because whether they should or not, they make offers based on the medical expenses. And if the medical expenses are discounted by Arkansans hard work and prudence and personal sacrifice, that insurance company is getting the benefit. So I look at that and say, you know, I can see who gets hurt by this bill. I can see Beth. I can see the others injured. Who gets helped? Where's the money go? It goes to the pockets of the insurance company. What do we get in exchange? We don't get anything. They were here today telling you. And they've told House judiciary. They can't tell you it's going to reduce any insurance rate at all. In fact, Senator Clark, you were concerned about the high cost of health insurance. This won't have any impact on the cost of health insurance. 

If anything, in a macroeconomic setting, it might, they say, impact the overall cost of milk. It's not going to change the insurance rates. Now, how did those insurance rates that are going to ultimately pay the bill for injuries get set? There's not a standardized medical expense list that I could go to to tell you, this is what an MRI ought to cost. But I can tell you that nationwide and by region and by state, insurance companies calculate that because they set premiums that will result in them being profitable. It's the only way you get to an $88 billion profitable industry is if you properly rate what it cost. 

So they have already calculated and baked into their rate that 100% of what medical charges are, because that's what is real and consistent. It's going to vary about whether or not you've been prudent and whether or not you have benevolence extended to you, but the insurance company has considered it, in fact, or did in at 100%. So out of that $20,000 medical expense and we only paid 6, the 14,000, just went back in to the insurance company's pocket and they've already been paid the premium for it. They get a benefit. I also listened about the timing on when this became the law that we could put in the full amount. 

Mr. Allen talked about the Montgomery Ward case, and I think Senator Irvin did as well. And I want to talk about the Montgomery Ward case, but also a little bit history before that. Because in fact, this does start before that. This is a common law concept, collateral source. It means that no one in setting the damages as a juror should consider what's available to pay those damages, whether it's the insurance company of the defendant or the health insurance that paid for the medical expenses. The collateral source rule says the jury's got to be kept in the dark about that. They don't get to know. 

And it is true that this bill won't change that the jury would get to know about insurance, Because I can tell you, insurance companies do not want you to know as a juror that there's insurance available to pay the bill. The insurance company protects that information. What's going to happen is that the jury's going to see the number of just what was discounted. And that's what they're going to think is the seriousness of the injury. So if you got injured significantly, but your bills are almost nothing, then the jury is going to be left with that impression that you have a small injury for which there is not much damage. So the Montgomery Ward case, 1998. Yes. 

I want to tell you what the court said in that case, because you haven't heard that. The court said if there is any windfall, and I've heard Mr. Allen talk about that windfall, it belongs to the credit of the injured person and not to the benefit of the wrongdoer. That's the policy behind the collateral source and behind the decision that was made in Montgomery Ward. We are reversing with this bill the result that says wrongdoers should not get a benefit and we're giving it to them. Now, this doesn't just apply to car wreck cases. It also applies to those types of cases where others are injured by criminal action or by negligence outside of a vehicle, a car vehicle wreck. 

One of those things that comes to mind is y'all passed a civil felony rule, so I can sue folks when they commit a rape or a violent crime. I can go get those damages and make my clients whole. Sex trafficking is the same way, and I share Senator Irvin's passion about those cases. I was on the trial team that tried the very first sex trafficking case in Arkansas to a jury. And I can tell you that there's a twofold purpose to the remedy of torts. And the first one is to make the victim whole, the survivor whole, pay them back for what they were hurt. But there's also a deterrent effect that the wrongdoer gets no benefit, that he's held to full accountability, and that others who see what happened know to change their behaviors.

 Reducing the overall recovery for injury victims and sex trafficking survivors hurts our ability to effect the deterrence that the law seeks to impose. We lose that. These are significant losses from the bill that aren't talked about. I want to talk just briefly about Texas since I'm a Texas lawyer. I know that the impact of the bill that they passed is the most similar to the one being proposed here today. And what it has caused is that there are more lawsuits. There are more trials. There are more expenses borne by the injured person. You heard about the life care plan. I just wrote a check for a life care plan that costs $22,000. I can't recover that $22,000 from my client. I don't get to list that as one of the costs, but it's the reality of what happens when this bill is passed. Injured people have to wait longer. 

They have to pay more and they get less. And in exchange, you don't get what you hope for, which are lower rates. If we're going to change a bedrock or an ancient symbol or an ancient rule in law, shouldn't we know by study, by data, by information that we can look at and trust that it'll make an impact? In this case, we are giving up without getting anything in return, and it's going to hurt the injured person. It also hurts our ability to bargain with insurance companies. They don't come to the table because they want to pay me a lot of money. They want to try to find out how not to pay.

 

Senator Alan Clark Miss Hoggard, I hate to interrupt. But I need to recognize Senator Rice.

 

Denise Hoggard Yes, sir.

 

Senator Terry Rice Mr. Chair, I'm trying to be patient with the testimony. I think you said one more we have to testify. I hate to cut them short. But we're abusing time a little bit. We're going to have to have time to vote and get in session at 1:30. So I would just ask the presenter to wrap up if possible.

 

Denise Hoggard Yes I will. Thank you. This is a Goliath and David situation. In this case, the injured folks are David. We have very few tools to fight back against the behemoth insurance industry, and this takes away a tool that is important to us in being able to negotiate and get fair results for our clients without making them all go through a jury trial and spend the years and the money to do so. Thank you so much for your time, senators.

 

Senator Alan Clark Any questions from the committee? Miss Hoggard, it is your opinion that the Texas law has hurt victims?

 

Denise Hoggard Yes, sir.

 

Senator Alan Clark Substantially?

 

Denise Hoggard Yes, sir.

 

Senator Alan Clark All right. Any other questions? Hearing none, thank you for your testimony. Courtney-- tell me how to pronounce the last name. Rolldan.That's what I would have guessed. Would you please recognize yourself, your name, where you're from and who you represent.

 

Courtney Roldan My name is Courtney Roldan. I'm from Cabot, and I represent myself and my kids.

 

Senator Alan Clark Okay, you may proceed.

 

Courtney Roldan So I'm here today, not as a lobbyist or someone with special interests, but as a parent and an Arkansan who believes in fairness that we've talked about. HB 1204 is a dangerous bill that protects those who cause harm, while even innocent people like you and me and our families to pay the price. Right now, someone is injured due to negligence, they can hold the responsible party accountable. 

This bill changes that, letting businesses and individuals use your insurance against you to reduce what they owe. This bill allows a reckless driver, a negligent nursing home, or an unsafe daycare to get off easy because you had insurance. That's not justice. That's a loophole. I won't claim to be an expert on tort reform, insurance, or lawsuits. I'm just a mom who stays home with two kids. So I don't know how many questions I can answer. But just sitting here in this room, a couple of things have been made clear. One is that this bill is not representative of the people that you are elected to represent. This is for hospitals and insurance companies, and it may be the insurance companies billing practices or the hospitals billing practices that need the reform probably. There's no doubt HB 1204 puts profits over people. 

So I ask you please to vote no. And I know it's been asked about Texas and someone that's watching at home did send me this and it says that the bill was passed in 2003. And between 2003 and 2004, health insurance premiums increased by 11.2%. In Dallas, homeowners insurance premiums increased by 460% in the ten years since they've passed this. And also in Texas, the homeowner's premiums have increased by 54.5% over the last five years. So that's the answer on if it's been affected by this bill. So thank you for allowing me to speak.

 

Senator Alan Clark Thank you. Any questions from the committee? Miss Roldan, thank you for being here. That is the last of our witnesses. So if the sponsors would like to return to the table. Are there any further questions from the committee for the sponsors before they close? Seeing none, Senator Irvin, Representative Eubanks, you're recognized to close for your bill.

 

Bill Closing and Discussion

Senator Missy Irvin Thank you, Mr. Chair. Since you said that we get points for brevity, I'll be brief. I hope I get points. Miss Hoggard actually said it very succinctly. Data and information that we can look at and we can trust is important. That's what the bill is about. It's about data and information that we can look at, verify and trust. It's a receipt of what was paid which should be actual damages and then what is recovered. 

Again, I just go back to the simple principle of fairness and balance. Let's start there. And I would again say that all those other categories are preserved as they should be. The bill simply, simply looks at actual damages, actual medical damages that were incurred, paid. The data and the information that we can trust is what's written and what actually was exchanged monetarily. That's what should be recovered under this one category for damages. And with that, Mr. Chair, I want to thank you for your time. I want to thank the members of this committee for their time. I also want to thank all the people that testified for and against this bill. It's been a long day and I just ask for a good vote. Thank you.

 

Senator Alan Clark What are the wishes of the committee? Motion do pass. Motion by Senator Johnson. Second by Senator Gilmore. Any discussion? Senator Tucker.

 

Senator Clarke Tucker Thank you, Mr. Chair. I took a lot of time. I'll be brief. Just a couple quick points. First point is, if this bill passes, costs are not going down. It doesn't even pretend to address health care costs. Health insurance carriers are not going to pay less. This bill doesn't address that. The only even theory that where costs might go down is on liability insurance carriers. And as I mentioned, over the last five years in Arkansas, private passenger auto, they've collected $3.5 billion in profit, not in premiums and profit. And then commercial auto, it's another 900 million, 4.5 billion in Arkansas alone over the last five years. 

And the benefits to the people of Arkansas that they're talking about are only through these insurance costs. If you're talking about the macro level and if this bill passes, we're basically counting on the insurance carriers to operate like Ebenezer Scrooge after he sees the Ghost of Christmas Future. I mean, that's what we're counting on. That's what we're hoping for with this bill passes. I don't think it's realistic either that costs will go down or that they won't be raised by as much. I mean, think about who we're dealing with here. 

The second point is, I think it's glossed over. It's been made, but we're dealing with people who have done wrong. If they haven't done wrong, this bill does not affect-- paying someone else's health care coverage does not affect them in any way. And you can argue that the scales are imbalanced now, but unquestionably it changes away from people who have been injured through no fault of their own in favor of the people who injured them, and ultimately to the people who injured the them's Insurance carriers. That's what the bill does functionally. 

You know, you can argue there's a good reason for that. And that's what the sponsors do. But that's what it does. And then the third and final point is it's really a question of who do we represent is the real question for me. I don't begrudge Mr. Allen for coming to advocate for this bill. He's doing a job and he's good at it. He's very good. I like Mr. Allen a lot, but at the end of the day, it's up to us to determine whether the people he's working for, whoever that that may be, they get the benefit of the laws that we pass or other people who don't have a lobbyist here to advocate for them.

 And on the one hand, you've got the liability insurance carriers and on the other hand, you have Beth Wyatt and people like her who live in every single one of our districts. So at the end of the day, the buck stops with us as to who the winners and losers of bills are. And for me, it's going to be Beth Wyatt. So I'll be voting against.

 

Senator Clarke Tucker Anyone else? Senator Dees.

 

Senator Tyler Dees Thank you, Mr. Chair. I appreciate the discussion. This was healthy for me. This is to me, I think, when I'm listening to both sides of this bill for and against it, it was healthy for me to contemplate today and through the last week really. And I'm trying to put into words my feeling or the description here. And I think this bill, I mean, it's four sentences long and it describes how to think about the medical damages. And to me, that seems pretty clear. I know that there's lots of conversations around it making sure that that it doesn't do some unintended consequences. 

But I think there's a larger debate that needs to be had around the multipliers and the way we come to our decisions in the court system that have nothing to do with actually what this bill does. And, I think we do need to address those at another time. But I think this highlights that there probably has been an issue. There's been an issue. And I don't think calling it lazy is the right way to describe it. But there's just been a history tradition of how we come up with the damages and the pain and suffering formulas. 

And I think that's been kind of in the air around this bill, but not necessarily about the bill itself. And so in a four sentence bill that's gotten a lot of discussion, I have no issues with insurance companies making a profit. I think they should. And in fact, the way that they don't make profits is because there's more accidents that they're paying out. We don't want them to be hurt in the process. That means more accidents happening in a lot of ways. And so to call that out as an issue, I stand against. Just like I would stand against, I don't think there's an issue with lawyers providing great service to make profits as well. 

And so I think those are kind of moot. But what I struggle with is the scare tactics that have been done about what this bill would do. And so after hearing all those things, I'm actually encouraged to understand that this is actually a pretty limited bill in the four sentences that it does. And it talks very clearly about damages only around billed versus paid medical damages. And so I actually feel much better about the limiting scope of this bill. I appreciate the discussion today. Thank you, Mr. Chair.

 

Senator Alan Clark Other discussion. Senator Johnson.

 

Senator Brian Johnson You know, I learn something every time I sit at this table or that chair. You know, through this thing it's not just in this process, but truth and transparency in  medical billing is something that hasn't been discussed. And, if you charge me a dollar, then that's what should be paid and not have to try to cover what is needed by the physician or any other medical provider by having to increase your bill to get covered what's needed. And it's totally not part of this, but I think it would solve this discrepancy that we're trying to fix in this bill. And I appreciate everybody that came and I appreciate the discussion. Thank you, Mr. Chair.

 

Senator Alan Clark Other discussion? Seeing none, we're going to vote. I'm not asking you to vote extra loud. But I don't like to put my thumb on the scale, so I'm going to try to call it exactly as I hear it. So please vote loud enough that I can hear you. We have a motion of do pass on House bill 1204. All those in favor say aye. All those against. The bill passes. Congratulations.

 

Senator Missy Irvin Thank you, Mr. Chair. Thank you, members of the committee.

 

Senator Alan Clark I appreciate y'all. I know you'll eat at some point, but doing without lunch. We have some bills on the list, but I don't see any reason that we need to meet Monday. So we'll see you back here at 10:00 Wednesday next week. Thank you.