Rotech has argued that it could, within its discretion, rely upon Huff’s sworn answers to interrogatories and the opinion of Dr. Wilson in concluding that it is entitled to be reimbursed out of any recovery Huff receives in the circuit court litigation against Hawkins and his employers. This court does not agree. This court first concludes that any reliance on Dr. Wilson’s opinion is “downright unreasonable.”

Dr. Wilson first saw Huff in June 2006, more than one and one-half years after the October 2004 accident, when she was referred to him by Dr. Potts. Dr. Wilson testified that any opinion regarding whether the spinal cord stimulator he implanted in September 2007 was necessary because of the collision “would be speculation.” Dr. Potts, by contrast, testified that the spinal cord stimulator implantation performed by Dr. Wilson was not causally related to the October 2004 automobile collision.

Rotech Healthcare, Inc. v. Synthia Ann Huff, (C.D. Ill 9.8.2011)

This opinion illustrates a frequent problem in health plan subrogation cases — determining the medical expenses related to an accident.  In this case, the court weighed two opposing medical opinions and held that the physician seeing the patient after the first accident could not reasonably infer that the medical expenses at issue were causally related to the accident.

Plaintiffs’ attorneys are well familiar with the problem presented when a plaintiff has preexisting injuries.  While Congress has sought to eliminate the significance in health plan claims, the regular insurance world looks at matters quite differently.  And despite the old Prosser hornbook notions of the “eggshell plaintiff”, the possible exacerbation of preexisting conditions does not often inspire liability insurance companies to up their settlement offers.

In the subrogation context, a causal failure in proof is fatal.  In this case, the Court rejected the more recent physician’s opinion as to causality — in spite of a corroborating declaration by the injured party in interrogatory responses.  So, the point is, if relatedness is a material issue, the subrogation claims is likely compromised and settlement negotiations should proceed accordingly.  The full opinion can be viewed on  Hat tip to Rob Hoskins for pulling the case.