Appellate Court Rules That Plaintiff May Admit Evidence of Lack of Health Insurance to Explain Lack of Medical Treatment

This is an excerpt from my blog Illinois Personal Injury Trial Book relating to a new case that permits a plaintiff to admit evidence that they lack health insurance in order to explain why they have not sought medical treatment despite being injured:

Vanoosting v. Sellars, 5-11-0365 (Spomer)

Facts:  At trial, evidence is brought out by the defendant’s attorney that plaintiff had not seen a physician for three years prior to the trial.  Plaintiff’s counsel attempted to admit evidence that the reason that the plaintiff has not seen the physician was due to a lack of health insurance, which was barred by the trial court but preserved for review through a motion in limine and an offer of proof by the plaintiff’s attorney.  In the opening statement, defendant’s attorney told the jury that the plaintiff’s physician advised her to “come back if she had any problem” and that “for 3 years she’s had no medical treatment.”  Further, in closing argument, the defendant’s attorney argued that the plaintiff’s request for both pain and suffering and loss of normal life was “double-dipping” because all of the limitations on the plaintiff life were the result of her pain from the injuries.  The jury subsequently awarded the plaintiff compensation for pain and suffering but a zero award for loss of normal life.  Plaintiff’s post-trial motion was denied and she appealed, arguing that she is entitled to a new trial because: (1) the circuit court improperly prohibited her from testifying that she did not seek further treatment for her injuries in the three years prior to trial because she did not have health insurance, and (2) a zero award for loss of normal life cannot be sustained by the evidence, specially in light of the argument by defense counsel that plaintiff was “double-dipping.”

Holding:  (1) The trial court erred in prohibiting testimony from the plaintiff regarding her lack of health insurance to explain her lack of medical treatment for three years; and (2) argument by defense counsel that plaintiff was “double-dipping” by seeking damages for pain and suffering and loss of normal life is improper and warrants a new trial.

Filed in Trial Book Under:  Closing Argument; Evidence; Motions in Limine; Health Insurance; New Trial

Commentary:  This is a welcome decision that finally provides a solution to an evidentiary problem that was often extremely unfair to plaintiffs in personal injury cases.  It makes perfect sense that people without health insurance are often reluctant or unable to seek medical treatment for their problems.  However, in the courtroom, their lack of treatment is always argued, either directly or by inference, as a reflection on the nature and extent of the injury.  The argument that “if the plaintiff were hurt as badly as they claim then they would have seen a doctor” is effective and persuasive to juries, particularly with those that are cynical about personal injury claims in general.  Prior to this case, Plaintiffs were typically barred from rebutting this inference by admitting into evidence the actual reason for their lack of treatment – no health insurance to pay for it – either because of a trial court’s knee jerk reaction that any mention of insurance is inadmissible, which is not the case, or because this type of evidence violates the standard motion in limine barring evidence as to the wealth or poverty of a party.  This decision analyzes the admission of this evidence and concludes finally eliminates the dilemma faced by many plaintiffs that would otherwise seek treatment but can’t due to a lack of health insurance.  It was always an unfair advantage that defendants were able to exploit in many cases and it’s good to see the playing field leveled on this issue.  I anticipate that we will see a lot of motions in limine prior to trial to admit this type of evidence.