
    Gailia TATE, Appellant, v. Miguel HERNANDEZ, Appellee.
    No. 07-07-0351-CV.
    Court of Appeals of Texas, Amarillo.
    March 5, 2009.
    
      James L. Wharton, Christopher B. Slay-ton, Jones Flygare Brown & Wharton, P.C., Lubbock, for Appellant.
    Jason Medina, Glasheen Valles & DeHo-yos, LLP, Lubbock, for Appellee.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

“To be, or not to be. That is the question.”

William Shakespeare, Hamlet, Act III, scene i

While perhaps overstating the significance of issues presented by this case, the ultimate question we must answer is the role of personal injury litigation in our society. Is it to punish the wrongdoer or to compensate the injured party? That is the question.

Appellant, Gailia Tate, appeals from a judgment entered after a jury verdict in a personal injury auto accident case that creates a constructive trust and orders her to pay sums to the trust for the benefit of certain creditors of Appellee, Miguel Hernandez. Raising five issues, Tate contends the trial court erred (1) in awarding medical bills that had been discharged in bankruptcy, (2) in not limiting Hernandez’s recovery of medical or health care expenses to amounts actually paid or incurred in accordance with section 41.0105 of the Texas Civil Practice & Remedies Code, (3) in exercising jurisdiction where no jurisdiction existed by awarding judgment in favor of a non-party; (4) by creating a constructive trust, and (5) by awarding attorney’s fees in a personal injury lawsuit.

“An Enigma Shrouded in a Puzzle”

In 2003, the 78th Legislature passed House Bill 4 which included an amendment to the Texas Civil Practice and Remedies Code adding section 41.0105, which simply states:

[i]n addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

Tex. Civ. Prac. & RermCode Ann. § 41.0105 (Vernon 2005).

This and similar statutes have been enacted nationwide as a part of the phenomena generieally referred to as “tort reform.” The genesis of this type of paid or incurred statute has been a desire among reformers to limit the sums recoverable by plaintiffs in personal injury causes of action to those amounts actually paid by the plaintiff or a collateral source insurance company, thereby eliminating recovery for medical bills that are ultimately written-off or written-down as a part of the underlying insurance settlement. Stated alternatively, the purpose of similar statutes has been to limit the recovery in a personal injury cause of action to those sums necessary to make the injured parties whole.

Although there are few appellate decisions clarifying the meaning of the Texas statute in the context of a write-off or write-down of medical bills in consideration of insurance payments, there are no appellate decisions reviewing the paid or incurred provision in the context of a debt discharged in bankruptcy. Accordingly, we are squarely faced with the unique issue: Is a debt which has been discharged in bankruptcy “paid or incurred” for purposes of section 41.0105 of the Texas Civil Practices and Remedies Code? Finding that it is not, we reverse the judgment of the trial court below and render the judgment the trial court should have rendered.

Background

The facts underlying this appeal are not disputed. On April 1, 2005, Hernandez filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Northern District of Texas, Lubbock Division. Six months later, on October 21, Hernandez was involved in an automobile accident with Tate when Tate’s vehicle drifted into Hernandez’s lane of traffic, collided with Hernandez’s vehicle, and caused it to roll multiple times. Hernandez incurred medical bills as a result of the injuries he sustained in the accident. On November 22, the bankruptcy court entered an order converting Hernandez’s Chapter 13 bankruptcy proceeding to a Chapter 7 bankruptcy proceeding. In that proceeding Hernandez filed a Debtors Statement in Compliance with Rule 1019 wherein he listed his personal injury chose in action as an asset acquired after the filing of his original Chapter 13 petition, but before the Chapter 7 conversion. Hernandez’s statement further listed certain medical bills owed to Lakeridge Primary Health Center, Covenant Medical Center, Physical Therapy of Lubbock, and Lubbock Pharmacy as debts incurred after confirmation but before conversion. Each of those debts were for medical bills arising out of the October 21st accident.

Although disclosed to the bankruptcy trustee, Hernandez’s personal injury chose in action never became property of the bankruptcy estate. Therefore, on February 3, 2006, Hernandez filed this suit seeking damages for personal injuries suffered as a result of the automobile accident with Tate. Among other damages, Hernandez sought recovery of his expenses for his past and future medical treatment, including those expenses that were listed as dischargeable debts in his bankruptcy proceeding.

On March 23, 2006, the bankruptcy court entered an order discharging Hernandez’s debts, including his medical bills. An attachment to the Chapter 7 discharge order indicated that the order eliminated Hernandez’s legal obligation to pay any discharged debt and prohibited any attempt to collect from Hernandez a debt that was discharged.

Hernandez’s personal injury action was subsequently tried to a jury, and on March 27, 2007, the jury returned a verdict in favor of Hernandez. The jury found both Tate and Hernandez negligent, assigning 70% fault to Tate and 30% to Hernandez. In a non-global itemized special issue, the jury awarded Hernandez recovery of specific past medical expenses in the amount of $9,035.94 as follows:

Lubbock Pharmacy $ 120.48
Physicians Network Services $ 463.00
Covenant Health System $5,028.46
Physical Therapy Services of Lubbock $2,928.00 Lubbock Diagnostic Radiology $ 496.00
Total $9,035.94

Each medical provider for which damages were awarded, other than Lubbock Diagnostic Radiology ($496.00), was listed on Hernandez’s bankruptcy filing. The jury did not award Hernandez recovery of any other damages.

Following two hearings on damages issues, the trial court entered judgment against Tate in the amount of $7,017.92. The judgment represented the $9,035.94 awarded by the jury, less 30% for Hernandez’s negligence, plus $692.76 in prejudgment interest. In addition, the trial court ordered the funds to be placed in a “constructive trust” for the benefit of two health care providers (Covenant Heath System — $2,111.95 and Physical Therapy Services of Lubbock — $1,024.80) and Hernandez’s attorneys (Glasheen, Valles & DeHoyos — $3,881.17). No award was made to Hernandez himself.

Discussion

I. Recoverability of Damages “Discharged” in Bankruptcy

Before determining the limitation imposed by Section 41.0105, the first issue we must address is whether medical expenses discharged in bankruptcy are generally recoverable in a personal injury lawsuit. Stated conversely, should a wrongdoer receive the benefit of a discharge of medical expenses in bankruptcy, when computing an injured party’s damages? This is the bankruptcy equivalent of the collateral source rule.

The “collateral source rule” is a common law rule that, in part, prevents a wrongdoer from benefitting from a collateral source of discharge of liability for medical expenses independently procured by a party, including the injured party, not in privity with the wrongdoer. Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265, 274 & n. 48 (Tex.1999) (citing Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934-36 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980) (holding that a wrongdoer cannot receive credit for insurance independently procured by the injured party.)); Black v. American Bankers Ins. Co., 478 S.W.2d 434, 488 (Tex.1972) (holding hospital expenses eventually paid by Medicare on behalf of plaintiff were recoverable); Taylor v. American Fabritech, Inc., 132 S.W.3d 613 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (holding that payments made under an employee benefit plan constitute a collateral source as against the employer). We find that the discharge of medical expenses through bankruptcy is akin to the discharge of an obligation by a collateral source. See Dodd v. Lang, 71 Va. Cir. 235, 242-43, 2006 WL 2257160 (Va.Cir.Ct.2006) (holding as a matter of substantive tort law, the collateral source rule includes debts discharged in bankruptcy).

Furthermore, we distinguish the concept of recovery of damages from the concept of discharge of debts. From a bankruptcy perspective, the term “debt” simply means liability on a claim, 11 U.S.C.A. § 101(12), where a “claim” is the right to either payment or an equitable remedy, whether or not such right is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C.A. § 101(5). A debt is merely a sum of money owing to one person from another, including not only the obligation of the debt- or to pay but the right of the creditor to receive and enforce payment. Black’s Law Dictionary 482 (8th ed.2004). Although sometimes loosely used interchangeably, debts (owed by the injured party to a medical provider) and damages (owed by the wrongdoer to the injured party) are distinctly different concepts. In the context of the injured party as the bankrupt party, debts are dischargeable in bankruptcy; damages are not.

Therefore, whenever an injured party incurs medical expenses proximately caused by the tortious conduct of another, our system of jurisprudence does not transfer liability for those debts to the wrongdoer. Instead, our jurisprudence allows the injured party to recover a judgment against the wrongdoer for the amount of actual damages proximately caused by the wrongful conduct. In a negligence case such as this, a plaintiff is permitted to recover damages for past and future medical expenses as compensation for the debt incurred. How that debt is ultimately settled, either through payment, gratuity, insurance, write-down, write-off, or bankruptcy is of no consequence to the issue of whether the plaintiff has been damaged by the wrongdoer. The debt is merely an evidentiary element of the plaintiffs damages.

Because a debt for medical expenses is merely evidence of plaintiffs damages, once incurred, the subsequent discharge of the debt in bankruptcy does not prohibit a plaintiff from offering proof of those past medical expenses as evidence of a component element of his damages. Therefore, subject to further limitations provided by law, we find a plaintiff may recover, as compensatory damages, the reasonable and necessary cost of medical expenses proximately caused by the tor-tious conduct of a wrongdoer, even if those expenses were subsequently discharged in bankruptcy. Having determined that Hernandez’s reasonable and necessary medical expenses were recoverable, we overrule Tate’s first issue and proceed to address her second issue, the limitation imposed by section 41.0105 of the Texas Civil Practice and Remedies Code.

II. Limitation of Recovery of Medical or Health Care Expenses

If we begin with the premise that the Legislature intended to accomplish something by the enactment of section 41.0105, then we must apply that provision in such a fashion as to accomplish that purpose. Few cases have shed light on that purpose. To date, the leading case is Mills v. Fletcher, 229 S.W.3d 765 (Tex.App.-San Antonio 2007, no pet.). In a plurality decision, the court held that section 41.0105 limited a plaintiffs recovery for past medical expenses to the amounts “actually paid or incurred,” thereby prohibiting recovery of medical or health care expenses that had been discounted, adjusted, or written off. In Mills, the defendant argued that the plaintiffs recovery of past medical bills should have been reduced because the medical providers accepted lesser amounts from the plaintiffs insurance carrier, thereby “writing off’ the difference. Id. at 767. The court found that the language of section 41.0105 manifested an intent by the Legislature to differentiate amounts “actually incurred” from amounts merely “incurred,” with the amount actually incurred being that sum of money necessary to compensate the plaintiff for sums actually expended by the plaintiff or his insurance carrier. Id. at 768. In her dissenting opinion, Justice Stone took issue with the majority’s treatment of the term “incurred” and she called into question the court’s finding that the plain language of section 41.0105 showed the Legislature’s intent to abrogate the collateral source rule. Id. at 771. According to Justice Stone, the majority opinion actually rewarded the wrongdoer for the injured party’s foresight in obtaining medical insurance. Id. at 772.

While departing somewhat from the rationale of the Mills decision as it dealt with the collateral source rule, the East-land Court of Appeals has likewise held that sums written off by a health care provider do not constitute amounts “actually incurred” for purposes of applying the limitation set forth in section 41.0105. Matbon, Inc. v. Gries, — S.W.3d -, - (Tex.App.-Eastland 2009, no pet. h.)(holding that the collateral source rule was not eviscerated by the adoption of section 41.0105).

In another case dealing with section 41.0105, this Court held that the trial court did not abuse its discretion in formulating a procedure for implementation of that section through the introduction of post-judgment testimony regarding medical expenses that were discounted, written-down, or written-off. Gore v. Faye, 253 S.W.3d 785 (Tex.App.-Amarillo 2008, no pet.). In Gore, the procedure for implementation of section 41.0105 was at issue, not the interpretation of the statute itself.

While the Texas Supreme Court has yet to weigh in directly on the matter, in Daughters of Charity Health Services of Waco v. Linnstaedter, 226 S.W.3d 409 (Tex.2007), the Court indicated that it did favor a theory of jurisprudence that avoided a “windfall” to the injured party created by the discounted difference between a hospital’s “full charges” and the amounts actually paid by the injured party’s workers’ compensation carrier. In discussing the extent to which a hospital could file a lien against its patient’s tort chose in action, the Court said, “[w]e agree that a recovery of medical expenses in [the full undiscounted amount] would be a windfall; as the hospital had no claim for these amounts against the patients, they in turn had no claim for them against [the wrongdoer].” Id. at 412. While Linnstaedter did not deal with interpretation of section 41.0105, it does support the position that compensation is the ultimate purpose of our system of jurisprudence.

A long line of cases have held that the purpose for allowing the recovery of actual damages, also called “compensatory damages,” is to repair a wrong or to compensate the injured plaintiff for an injury. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985), modified on other grounds, Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507 (Tex.1998); W. Keeton, et al., Prosser and Keeton on the Law of Torts § 2 (5th ed.1984). Therefore, we find that an interpretation of section 41.0105 that limits an injured party’s recovery of medical or health care expenses to those amounts necessary to compensate the injured party for sums “actually paid or incurred” is consistent not only with the Legislature’s intent, but also with our jurisprudential philosophy and history.

Because Hernandez’s medical bills were discharged in bankruptcy, recovery of said sums by Hernandez is not necessary to compensate him for his injuries. For purposes of section 41.0105, those expenses were neither paid nor “actually incurred.” Accordingly, we sustain Tate’s second issue. Because the jury’s award was limited exclusively to sums either discharged in bankruptcy or written-off by the medical provider, the trial court should have rendered a take-nothing judgment.

Our disposition of Tate’s second issue pretermits consideration of her remaining issues pertaining to the exercise of jurisdiction over non-parties, the imposition of a constructive trust, and the de facto award of attorney’s fees in a personal injury case. Tex.R.App. P. 47.1.

Conclusion

While, in the beginning, we postulated that the role of personal injury litigation in our society might be the ultimate question presented by this appeal, we must be satisfied to accept that the answer to that question is an unanswerable enigma, not within the exclusive province of either realm, compensation, or punishment. In some instances damages are designed solely to compensate the injured party; while in others, solely to punish the wrongdoer. Without clear legislative direction, the paid or incurred statute, the collateral source rule, and the courts of this state are, like Hamlet, destined to perpetually ponder their role in social fabric of our jurisprudence. We reverse the trial court’s judgment and render judgment that Hernandez take nothing.

QUINN, C. J., concurring in result.

CAMPBELL, J., concurring.

JAMES T. CAMPBELL, Justice,

concurring.

I agree "with the Court’s rendition of judgment that appellee Miguel Hernandez take nothing but find myself unable to join its opinion. I disagree with the Court’s disposition of the first and second issues presented by appellant Gailia Tate. For the reasons expressed, I would sustain Tate’s first issue and not reach the second issue.

In its disposition of Tate’s first issue, the Court holds that a discharge in bankruptcy of liability for medical expenses is a collateral benefit within the collateral source rule. Hence, through discharge in bankruptcy a debtor may be relieved of liability for medical expenses caused by a tortfeasor and in an action against the tortfeasor seek a recovery of the discharged expenses. I would hold a discharge in bankruptcy of personal liability for medical expenses is not a collateral benefit for application of the collateral source rule.

Discussion

The one-satisfaction rule limits a plaintiff “to but one satisfaction for the injuries sustained by him.” Bradshaw v. Baylor Univ., 126 Tex. 99, 84 S.W.2d 703, 705 (1935); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000). Thus allowing recovery in a tort action of a compensatory damage element paid by a collateral source, independent of the defendant, has the appearance of a forbidden double recovery. But “if payment is within the collateral source rule, the principle forbidding more than one recovery for the same loss is not applicable.” Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex.1980); Triumph Trucking, Inc., v. Southern Corporate Ins. Managers, Inc., 226 S.W.3d 466, 471 (Tex.App.Houston [1st Dist.] 2006, pet. denied). The collateral source rule provides:

[T]he fact that an injured person receives from a collateral source payments which may have some tendency to mitigate the consequences of the injury which he otherwise would have suffered may not be taken into consideration in assessing the damages or other recovery to which the claimant may be entitled.

Traders & General Ins. Co. v. Reed, 376 S.W.2d 591, 593 (Tex.Civ.App.-Corpus Christi 1964, writ ref'd n.r.e.); accord Sweep v. Lear Jet Corp., 412 F.2d 457, 459 (5th Cir.1969) (applying Texas law); City of Fort Worth v. Barlow, 313 S.W.2d 906, 911 (Tex.Civ.App.-Fort Worth 1958, writ ref'd n.r.e.) (“[n]o abatement of damages on the ground of partial compensation can properly be made where the evidence shows funds have been received from a collateral source, independent of the defendant”). “The collateral source rule is both a rule of evidence and damages.” Johnson v. Dallas County, 195 S.W.3d 853, 855 (Tex.App.-Dallas 2006, no pet.); Taylor v. American Fabritech, Inc., 132 S.W.3d 613, 626 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). Its focal point is “whether a tort victim has received benefits from a collateral source that cannot be used to reduce the amount of damages owed by a tortfeasor.” Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316, 322 (Va.2000). Underlying the collateral source rule is the equitable notion that if there must be a windfall “the injured party is more justly entitled to it than the wrongdoer.” Sweep, 412 F.2d at 459.

The collateral source rule has historically been applied to situations in which a third party acts for the benefit of the plaintiff. See, e.g., Brown, 601 S.W.2d at 934-36 (insurance); Twin City Fire Insurance Company v. Gibson, 488 S.W.2d 565, 571 (Tex.Civ.App.-Amarillo 1972, writ ref'd n.r.e.) (government benefits); Barlow, 313 S.W.2d at 911 (gratuitous healthcare services by Veterans Administration). See also Restatement (Second) of Torts § 920A, cmt. c (“rule that collateral benefits are not subtracted from the plaintiffs recovery applies to the following types of benefits”: insurance policies, employment benefits, gratuities, and social legislation benefits). Indeed, “collateral source” speaks of an additional party. But it is not so much the source of funds but the character of the benefits received that determines the application of the collateral source rule. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 582 (Tex.App.-Houston [1st Dist.] 1992, no writ) (citing Phillips v. Western Co. of N. Am., 953 F.2d 923, 929 (5th Cir.1992)).

Application of the collateral source rule has historically benefitted those with foresight to acquire insurance in advance of injury or at least in advance of treatment. Brown, 601 S.W.2d at 934-35; Finger v. Southern Refrigeration Servs., Inc., 881 S.W.2d 890, 893-94 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Payne v. Wyeth Pharmaceuticals, Inc., No. 2:08cv119, 2008 WL 4890760, at *3, 2008 U.S. Dist. Lexis 91849, at *11, (E.D.Va. November 12, 2008). See generally 5 James B. Sales and J. Hadley Edgar, Texas Torts and Remedies § 88.01[1] (2008) (where collateral source is an insurer, it would be “particularly inappropriate” for a tortfeasor to benefit from the victim’s foresight in procuring an insurance policy to which the tortfeasor was not a party). Even gratuitous medical sendees delivered because, for example, a person is a veteran are rendered based on status at the time of treatment. Walker v. Long, 57 Va. Cir. 419, 420 (Va.Cir.Ct.1993). The collateral source rule furthers public policies like encouraging insurance coverage and allowing employee and governmental benefits to reach their intended beneficiaries in full. The rule thus may be said to reward a plaintiffs foresight or status prior to injury. Payne, 2008 WL 4890760, at *4, 2008 U.S. Dist. Lexis 91849, at *12.

Bankruptcy fits neither of the historical circumstances. In bankruptcy, there is no third party rendering a bargained-for or gratuitous benefit. Oliver v. Heritage Mut. Ins. Co., 179 Wis.2d 1, 505 N.W.2d 452, 461 (App.1993). Accord Olariu v. Marrero, 248 Ga.App. 824, 549 S.E.2d 121, 123 (2001) (“[T]he effects of a bankruptcy do not constitute a ‘collateral source’ at all”). Rather bankruptcy functions to “relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” Williams v. United States Fidelity & Guar. Co., 236 U.S. 549, 554-55, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915) (Bankruptcy Act). Nor does bankruptcy reward the plaintiffs foresight or favored status. If it may be said that the fresh start of a voluntary bankruptcy discharge renders a windfall for the debtor by permanently enjoining collection of certain creditor claims, the windfall exists because of an express decision made by the debtor after incurring the discharged liability. See Payne, 2008 WL 4890760, at *4, 2008 U.S. Dist. Lexis 91849, at *11-12.

As the Wisconsin court stated in Oliver, the collateral source rule properly applies in cases where “a ‘benefit’ is bestowed by a ‘third party* and this third party benefit creates the windfall.” Oliver, 505 N.W.2d at 461. The rule, however, properly has no application where a plaintiff creates the windfall by obtaining a discharge in bankruptcy of medical expenses caused by the injury-producing occurrence. See id.; see also Payne, 2008 WL 4890760, at *5, 2008 U.S. Dist Lexis 91849, at *14.

Additionally, recognizing discharge in bankruptcy as a collateral source benefit may actually encourage bankruptcy by offering a post-treatment means of discharging personal liability for expenses while leaving available a potential full recovery of damages. Oliver, 505 N.W.2d at 461-62. Such a result cannot be favored by public policy. Olariu, 549 S.E.2d at 123-24.

For these reasons, I would find the collateral source rule inapplicable to the medical expenses incurred by Hernandez but discharged in bankruptcy. I would, therefore, sustain Tate’s first issue. It would be unnecessary to reach Tate’s remaining issues. Tex.R.App. P. 47.1. 
      
      . See Judge Randy Wilson, "An Enigma Shrouded in a Puzzle", 71 Tex. BJ. 812, November 2008, for a discussion of some of the issues surrounding interpretation of section 41.0105 of the Texas Civil Practice and Remedies Code.
     
      
      . Tex.R.App. P. 43.3.
     
      
      . In accordance with Rule 34.6(c) of the Texas Rules of Appellate Procedure, Tate requested a reporter’s record limited to two post-trial hearings held April 9, 2007 and June 29, 2007. Therefore, as stated herein, the background facts adopted by this Court are those facts that are undisputed in Tate’s and Hernandez’s briefs. See Tex.R.App. P. 38.2(a)(1)(b).
      When an appellant requests a partial reporter’s record, the points or issues to be presented on appeal are limited to those points or issues contained in the statement of points or issues included in the request. Here, Tate's request for a partial reporter’s record stated that the issues to be presented on appeal were as follows:
      (1) whether the trial court erred in awarding medical bills that had been discharged in bankruptcy and were not "actually paid or incurred” in accordance with section 41.0105 of the Texas Civil Practice and Remedies Code;
      (2) whether the trial court erred in awarding damages to Plaintiff's medical providers, who were not parties to the lawsuit, had asserted no claims against Defendant, had filed [no] pleadings in the lawsuit, and over which the trial court had no jurisdiction;
      (3) whether the trial court erred in making a de facto award of attorney’s fees to Plaintiff's attorneys when there were no pleadings, evidence, or legal [basis] to support such an award; and
      (4) whether Plaintiff is a "successful party” and entitled to recover his costs of court when no recovery was made by the Plaintiff.
      Although not identically worded, we find Tate’s issues, as presented, are subsumed within and therefore properly raised by the statement of points or issues contained in Tate’s request for a partial reporter's record.
     
      
      .Section 348 of the Bankruptcy Code provides that "property of the estate in the converted case shall consist of property of the estate, as of the date of filing the petition, which remains in the possession of or is under the control of the debtor on the date of conversion.” 11 U.S.C. § 348(f)(1)(A) (emphasis added).
     
      
      . Judgment was entered by J. Blair Cherry, Jr., Senior District Judge acting by assignment. Tex. Gov't Code Ann. § 75.002(a)(3) (Vernon 2005).
     
      
      . Covenant Health System and Physical Therapy Services of Lubbock were not parties to the proceedings below. Furthermore, they did not take any action to collect their bills other than to agree with Hernandez’s counsel to accept the sums awarded. In light of the discharge in bankruptcy, the other medical providers (including the creditor not named in the bankruptcy petition) would not agree to accept any portion of the jury’s award.
     
      
      . We remain convinced that applying section 41.0105 post-verdict, as a cap to recoverable damages, remains a sound judicial procedure. Matbon, Inc. v. Gries, - S.W.3d -, - (Tex.App.-Eastland 2009, no pet. h.) See also Judge Gisela D. Triana-Doyal, Another Take on “Actually Paid or Incurred’’, 72 Tex. BJ. 16, January 2009, for arguments in favor of a post-verdict application of the "paid or incurred” limitation.
     
      
      . The question of whether a bankrupt party is entitled to recover compensation for medical expenses "actually incurred” is separate and distinct from the question of whether a bankrupt estate is entitled to recover those same damages. Where the bankrupt party would no longer have a legal duty to pay the medical providers, the bankrupt estate would continue to owe a duty to all creditors of the bankrupt estate. Accordingly, we express no opinion as to whether or not a trustee in bankruptcy, pursuing a bankrupt party’s chose in action against a tortfeasor on behalf of the bankrupt estate, would be entitled to recover damages for past medical expenses.
     
      
      . The dual nature of the collateral source rule may be explained:
      The substantive component is a rule of damages. This component bars a defendant from reducing the plaintiff's compensatory award by the amount the plaintiff received from the collateral source. The evidentiary component bars admission of evidence of the existence of the collateral source or the receipt of benefits. The concern here is that the trier of fact may use that evidence improperly to deny the plaintiff the full recovery to which he is entitled.
      
        Arthur v. Catour, 216 Ill.2d 72, 295 Ill.Dec. 641, 833 N.E.2d 847, 852 (2005) {quoting James M. Fischer, Understanding Remedies § 12(a) (1999)).
     
      
      . Illustrating this precept are cases in which the tortfeasor is the victim’s employer and has made payments under an employee benefit plan. If the benefit plan is characterized a fringe benefit of the employee then it is classified a collateral source as to the employer. Conversely, if the employer purchased the plan primarily for its protection, then the plan is not a collateral source as to the employer. Taylor, 132 S.W.3d at 626 & 626 n. 41. Cf. Johnson, 195 S.W.3d at 855-56 (noting no allegation that employer was the tortfeasor for application of collateral source rule).
     
      
      . From antiquity in this country the collateral source rule has concerned benefits, such as insurance, acquired before the fact. Of English common law origin, the collateral source rule entered American jurisprudence in The Propeller Monticello v. Mollison, 58 U.S. (17 How.) 152, 15 L.Ed. 68 (1854).
      "Monticello,” a steamship, and "Northwestern,” a schooner, collided on Lake Huron, causing "Northwestern” to sink with its cargo of salt. Mollison, the owner of "Northwestern,” was insured, and his insurer compensated him in full for his loss. When Mollison sued the steamship, its owner raised as a defense that Mollison had already been fully compensated. The United States Supreme Court held that the insurance contract was "in the nature of a wager between third parties, with which the trespasser has no concern. The insurer does not stand in the relation of a joint trespasser, so that the satisfaction accepted from him shall be a release of others.” Id. at 155. The term "collateral source” derives from language used in Harding v. Town of Townshend, 43 Vt. 536 [538] (1871) ("The policy of insurance is collateral to the remedy against the defendant, and was procured solely by the plaintiff and at his expense, and to the procurement of which the defendant was in no way contributory”).
      
        Baptist Healthcare Sys. v. Miller, 177 S.W.3d 676, 687 (Ky.2005). Harding found a place in the early development of the collateral source rule in Texas. See Texas & Pacific Ry. Co. v. Levi & Bro., 59 Tex. 674, 676 (1883) (quoting Harding, 43 Vt. at 538).
     
      
      . A discharge in bankruptcy "operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived....” 11 U.S.C.A. § 524(a)(2) (West 2004).
     