This is a great question, and one that many people simply are unaware or do not know about!
The make whole doctrine means you, the injured person, have to be "made whole" before any private or public health lien interest (any private or public health insurance plan) can take reimbursement from your gross settlement from a personal injury case. This comes from California state law protection under "common law."  

First, you must realize if you have a health plan, whether public or private, and it paid some or all of your medical bills from a California personal injury settlement (some negligent third party that caused you your injuries and medical bills), you will have address reimbursing the health plan for what it paid out in medical expenses.  One of the first California state law protections you have on your side is the "make whole doctrine."  A good injury lawyer will best know how to argue the protection so you can reduce any reimbursement amount back to your health plan. The less you have to pay back, the more in net recovery you get to keep from your personal injury settlement!  Remember, each health plan is unique - meaning each plan is different from the next. Different rules apply whether your health plan is private or public (like Medi-Cal or Medicare). Some private health plans are governed by a federal law known as "ERISA." Depending on the type of ERISA protection on your private health plan may or may not make it more difficult to argue or employ the "make whole rule" or also known as the "make whole doctrine.  For more questions on this, you can call me directly at (619) 813-7955. 

Here is some California law on the Make Whole Doctrine:

Sapiano v. Williamsburg National Ins. Co., 28 Cal.App.4th 533 (1994)  Enunciates the "make whole" doctrine, whereby an insured must be fully compensated for his loss before an insurer can recover through subrogation. Note that this doctrine can be waived if clearly so stated in the policy.


Barnes v. Independent Auto Dealers Assn. of CA H & B Plan, 64 F.3d 1389,1395 (9th Cir. 1995)  Adopted “make whole” doctrine and applied to subrogation clauses in ERISA plans as a matter of federal common law. Also adopted CA rule of interpreting insurance policies for interpretation of ERISA plans—i.e. construction of ambiguities v. the drafter and in favor of insured



Mark Blane
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San Diego Personal Injury Lawyer | California Car Accident Attorney