The Periodic Payment Rule: UGHH!

The periodic payment rule, §509(b) of the M-Care statute, is an absolute killer. It is fraught with problems, complexity and uncertainty which will plague lawyers for years to come. Unfortunately, you need to know the nuances of the rule since it will govern many cases now coming up for trial.

Here are the basics:

The Verdict Slip – The rule requires that there be a separate line for each future year in which medicals will be accrued. If you have a young client with many years of future medicals, the verdict slip could resemble a grocery store receipt for a family of five. It remains to be seen how that might impact jury deliberations.

Uncertainty – Suppose as of the time of trial the plaintiff requires custodial care which, according to your expert, will cost $225,000 annually as of the year 2017. What happens if, in reality, the cost for that care is $300,000/year? Likewise, what happens if the plaintiffs medical expert indicates that the plaintiff will require a surgery in the year 2012 which will be estimated to cost $25,000, and then it turns out that the surgery is required two years earlier in 2010 and it costs $50,000? Since the jury’s award is itemized year-by-year based on the projected costs at the time of trial, and the defendant is required only to pay those amounts each year, it seems like the plaintiff will be out of luck in those scenarios.

Here are the problems.

These are just some of the problems that the periodic payment rule will foist on lawyers and judges around the Commonwealth. The prediction here is that once the trial judges learn of these and other problems, they will absolutely hate the rule and strongly suggest (demand?) that the parties stipulate to do business the old fashion way, i.e., with a lump sum verdict return on future medicals. Amen to that!