FILED

July 15, 2016 Carla Bender NO. 4-15-0728 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

HAROLD MILLER, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Coles County SARAH BUSH LINCOLN HEALTH CENTER and ) No. 11L43 CURTIS GREEN, D.O., ) Defendants-Appellees. ) Honorable ) Brien J. O'Brien, ) Judge Presiding. ______________________________________________________________________________

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.

OPINION

¶1 On June 29, 2015, a jury returned a verdict in plaintiff Harold Miller's favor in his

medical malpractice action against defendants, Dr. Curtis Green, D.O., and Sarah Bush Lincoln

Health Center. The jury awarded plaintiff $638,347.91, with $133,347.91 itemized for medical

expenses. On July 17, 2015, defendants filed a motion to enter judgment and reduce the jury's

verdict by $91,724.03 pursuant to section 2-1205 of the Code of Civil Procedure (Procedure

Code) (735 ILCS 5/2-1205 (West 2014)). On August 3, 2015, the trial court granted defendants'

motion and reduced the jury's verdict by $91,724.03. Plaintiff appeals, arguing the trial court

erred in reducing the judgment by $91,724.03. We reverse the trial court's order reducing the

verdict in this case and remand with directions for the trial court to reinstate the jury's verdict

without any reduction.

¶2 I. BACKGROUND ¶3 What occurred before the jury's verdict in this case is not relevant for purposes of

this appeal, so we provide no background with regard to the trial other than to note plaintiff's

claim alleged medical malpractice. As previously stated, the jury returned a verdict in plaintiff's

favor in the amount of $638,347.91. Of that amount, the jury itemized $133,347.91 for medical

expenses.

¶4 On July 17, 2015, defendants filed a motion to enter judgment and reduce medical

expenses pursuant to section 2-1205 of the Procedure Code (id.). According to the motion,

"Because the medical bills awarded by the jury in its verdict total $133,347.91, and because there

is no right of subrogation or recoupment for the portion of these bills equal to $91,724.03,

Defendants request that judgement [sic] be entered on the verdict, with a set-off in that amount."

¶5 The trial court held a hearing on the motion on August 3, 2015. Citing Perkey v.

Portes-Jarol,

,

, defendants argued $91,724.03 of the verdict

should be set aside pursuant to section 2-1205 of the Procedure Code (735 ILCS 5/2-1205 (West

2014)) because no one had a right to recoup money for the awarded medical expenses. After

hearing the parties' arguments, the trial court reduced the jury's verdict by $91,724.03.

¶6 This appeal followed.

¶7 II. ANALYSIS

¶8 At issue in this appeal is whether the trial court correctly interpreted section 2-

1205 of the Procedure Code (id.), which states:

"Reduction in amount of recovery. An amount equal to the sum of

(i) 50% of the benefits provided for lost wages or private or

governmental disability income programs, which have been paid,

or which have become payable to the injured person by any other

-2- person, corporation, insurance company or fund in relation to a

particular injury, and (ii) 100% of the benefits provided for

medical charges, hospital charges, or nursing or caretaking

charges, which have been paid, or which have become payable to

the injured person by any other person, corporation, insurance

company or fund in relation to a particular injury, shall be

deducted from any judgment in an action to recover for that injury

based on an allegation of negligence or other wrongful act, not

including intentional torts, on the part of a licensed hospital or

physician; provided, however, that:

(1) Application is made within 30 days to reduce the

judgment;

(2) Such reduction shall not apply to the extent that there is

a right of recoupment through subrogation, trust agreement, lien, or

otherwise;

(3) The reduction shall not reduce the judgment by more

than 50% of the total amount of the judgment entered on the

verdict;

(4) The damages awarded shall be increased by the amount

of any insurance premiums or the direct costs paid by the plaintiff

for such benefits in the 2 years prior to plaintiff's injury or death or

to be paid by the plaintiff in the future for such benefits; and

-3- (5) There shall be no reduction for charges paid for medical

expenses which were directly attributable to the adjudged negligent

acts or omissions of the defendants found liable." (Emphasis

added.)

Plaintiff puts forth a number of arguments why the trial court erred in reducing by $91,724.03

the jury's award for medical expenses pursuant to section 2-1205. According to plaintiff, this

amount of money was not paid by anyone. Instead, the medical care providers "wrote off" this

amount from plaintiff's bills. We must determine whether the legislature intended section 2-

1205 to allow verdicts to be reduced by the amount of medical bills written off by health care

providers. Because this case involves a question of statutory interpretation, we apply a de novo

standard of review. Mashal v. City of Chicago,

,

.

¶9 Plaintiff first argues section 2-1205 of the Procedure Code is in "derogation of the

common law" collateral source rule. He contends we should strictly construe the statute without

extending it any further than the statutory language requires. In re W.W.,

,

(1983). However, section 1-106 of the Procedure Code states:

"This Act shall be liberally construed, to the end that controversies

may be speedily and finally determined according to the

substantive rights of the parties. The rule that statutes in

derogation of the common law must be strictly construed does not

apply to this Act or to the rules made in relation thereto." 735

ILCS 5/1-106 (West 2014).

Considering the plain language of section 1-106, plaintiff's argument on this point is not tenable.

-4- ¶ 10 The cardinal rule of statutory interpretation is to determine and give effect to the

intent of the legislature. In re E.B.,

,

(2008). The

language of the statute is the best indicator of legislative intent and the language is to be given its

plain and ordinary meaning.

"Where the statutory language is clear and unambiguous, it

must be applied as written, without resort to other tools of statutory construction." In re Estate of

Ellis,

,

(2009). "[A] court should not attempt to read a

statute other than in the manner in which it was written." (Internal quotation marks omitted.)

Rosewood Care Center, Inc. v. Caterpillar, Inc.,

,

(2007).

¶ 11 Plaintiff argues section 2-1205:

"only provides that defendants are entitled to a reduction for 100%

of the benefits 'which have been paid or have become payable to

the injured person.' In this case, there is no evidence that Plaintiff

was paid anything by Medicare or Blue Cross Blue Shield to

reimburse him for his medical expenses. The most that can be

ascertained from looking at the record is that Plaintiff's medical

bills were paid by two methods, (i) direct payments from Medicare

and Blue Cross Blue Shield to Plaintiff's medical providers and (ii)

direct payments by Plaintiff to the providers. The medical bills do

not show that any payments were made by the providers,

Medicare, or Blue Cross Blue Shield, to reimburse the Plaintiff for

medical bills that he paid."

-5- However, plaintiff does not accurately quote the statute. Section 2-1205 reads the benefits

provided, "which have been paid, or which have become payable to the injured person by any

other person, corporation, insurance company or fund in relation to a particular injury." 735

ILCS 5/2-1205 (West 2014). The plain language of the statute shows the reduction of a

judgment is not limited to benefits paid directly to plaintiff. A judgment can be reduced by the

amount of benefits paid directly to the medical care provider. In addition, a judgment may be

reduced by the benefits "which have become payable to the injured person by any other person,

corporation, insurance company or fund in relation to a particular injury."

¶ 12 Plaintiff's view would require us to interpret section 2-1205 in a manner other

than the manner in which it was written, which we will not do. Rosewood Care Center,

,

. Further, plaintiff's interpretation would make the comma

following "paid" and the word "which" in the statute needless surplusage. Interpreting a statute

in a manner that makes terms surplusage is not favored. Bonaguro v. County Officers Electoral

Board,

,

(1994).

¶ 13 In the alternative, plaintiff argues, even if defendants can reduce a judgment by

the amount of benefits paid directly to the medical providers, the judgment can only be reduced

by the amount of money actually paid and then only if the payor has no right of recoupment. In

this case, defendants stipulated Blue Cross Blue Shield and Medicare paid $35,747.88 to

plaintiff's medical providers to satisfy plaintiff's medical expenses. However, Blue Cross Blue

Shield and Medicare have the right to recoup this money from plaintiff's judgment.

Consequently, no reduction for this amount is permitted.

¶ 14 Under section 2-1205(2) of the Procedure Code (735 ILCS 5/2-1205(2) (West

2014)), a judgment cannot be reduced by an amount subject to recoupment. The trial court

-6- correctly refused to reduce the judgment by this amount. However, the following question still

remains: because the jury awarded plaintiff medical expenses in the amount billed by his

medical providers, should defendants be able to reduce the judgment by the amount written off

by the medical providers, which was never paid by anyone?

¶ 15 As stated earlier, plaintiff argues the payment of a discounted bill does not entitle

a defendant to reduce the judgment by the original billed amount because the difference was

never paid. According to plaintiff:

"The trial court's ruling was premised upon a

misapplication of the term 'benefit' as used in [s]ection 2-1205. In

adopting the application urged by Defendants, the trial court found

that the benefit provided to plaintiff for medical charges was the

total award, or $133,347.91. This is not correct. The 'benefit' is

what the collateral source pays on behalf of the injured person—

not what the jury awards. See, e.g., Bernier v. Burris,

(1986) (explaining that [s]ection 2-1205 modifies the

collateral source rule by allowing reductions for 'sums' received

from collateral sources). Quite simply, the 'sum … of benefits

provided …which have been paid …' here was $35,747.88—not

$133,347.91. And because Medicare and Blue Cross Blue [S]hield

have an undisputed right to recoupment, the trial court erred in

reducing the judgment."

-7- In other words, according to plaintiff, the amount of the difference between the amount billed

and the amount paid does not fall within the plain language of section 2-1205. Therefore,

defendants were not entitled to a reduction of the judgment.

¶ 16 According to the Illinois Trial Lawyers Association, which filed an amicus brief

in this case, the plain language of section 2-1205:

"clearly require[s] that for a reduction to apply, there must be

benefits '*** which were either paid, or payable to the injured

person' by another person or entity. A 'write-off' by the medical

provider entitled to payment, is the antithesis of a payment by

definition. It is not payable to anyone, least of all to the injured

person."

We agree on this point. The statute does not allow a verdict to be reduced by the amount of the

bills which have been satisfied or the value of the benefit to the plaintiff. Instead, it only allows

a verdict to be reduced by the amount paid to the medical providers or payable to the plaintiff.

¶ 17 According to the Illinois Association of Trial Defense Counsel (IATDC), which

also filed an amicus brief in this case:

"The statutory language [of section 2-1205] was intended

to modify the collateral source rule by allowing a reduction for all

of the same benefits that were included in the common law

collateral source rule. This includes not only monetary payments

made by insurance carriers and Medicare but also amounts that are

'written-off' of bills pursuant to contractual agreements or federal

law (Medicare)."

-8- The plain language of the statute does not support this argument. The plain language of section

2-1205 shows it was only intended to apply if the benefits were paid to the medical providers or

had become payable to the plaintiff—and then only if other limitations do not apply. 735 ILCS

5/2-1205 (2014). The amount the medical providers wrote off from their original bills was never

paid by anyone, and the amount certainly had not become payable to the plaintiff. IATDC's

argument asks this court to ignore the restrictive language, "which have been paid, or which have

become payable to the injured person." 735 ILCS 5/2-1205 (West 2014). As stated earlier, we

will not read language out of a statute in determining its meaning. Bonaguro,

,

.

¶ 18 The trial court relied on Perkey in concluding the portion of the medical bills

which were written off could be deducted from the judgment pursuant to section 2-1205 of the

Procedure Code (735 ILCS 5/2-1205 (West 2014)). The jury in Perkey awarded the plaintiff

$310,000 for the reasonable cost of medical care and services. Perkey,

,

. Defendants sought a reduction in the judgment for the medical

expenses. Id. ¶ 80.

¶ 19 The plaintiff provided a letter to the trial court from Blue Cross Blue Shield of

Illinois stating it had paid $134,933.85 in total medical benefits and had a right to be reimbursed

from any award the plaintiff received. Id. ¶ 81. Defendants then amended their request and

asked for a reduction of $175,066.15, which was the difference between the medical portion of

the judgment and the amount upon which BlueCross Blue Shield had subrogation rights (i.e.,

$310,000 -$134,933.85). Id. ¶ 82. The plaintiff argued "the right of recoupment" barred the

reduction of the medical award. Id. ¶ 83. The trial court agreed and denied defendants' request

-9- to reduce the judgment pursuant to section 2-1205, finding the statute barred any reduction

where a right of reimbursement existed. Id. ¶ 110.

¶ 20 On appeal, the defendants argued the plain language of the statute did not support

the trial court's interpretation. Id. The Second District agreed, stating:

"Plaintiff's interpretation [of section 2-1205] ignores the 'to the

extent that' language, rendering the phrase superfluous ***.

[Citation.] Moreover, plaintiff's interpretation, which would

disallow any reduction even if the insurer had a right to recoup one

cent, runs counter to section 2-1205's purpose of reducing the costs

of medical malpractice actions by eliminating duplicative

recoveries." Id. ¶ 112.

The Second District reduced the judgment by $175,066.15—the amount written off by the

medical providers. Id. ¶ 120.

¶ 21 We choose not to follow the Second District's opinion because the arguments

made in Perkey are different than the arguments raised in this appeal. The Second District did

not analyze whether bills written off by medical providers qualify as benefits paid to medical

providers or payable to the plaintiff. The Second District dealt only with whether the right to

recoupment prevented a reduction in the judgment. Because the plain language of section 2-

1205 of the Procedure Code (735 ILCS 5/2-1205 (West 2014)) does not allow for a defendant to

reduce a judgment by an amount that was neither paid to medical providers nor payable to the

plaintiff, the trial court erred in reducing the judgment in this case.

¶ 22 III. CONCLUSION

- 10 - ¶ 23 For the reasons stated, we reverse the trial court's order granting defendants'

motion to reduce the jury's verdict by $91,724.03 and remand for the trial court to reinstate the

jury's verdict without any reduction.

¶ 24 Reversed and remanded with directions.

- 11 -