# Petition for Writ of Certiorari — Mays v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1941%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 482 U.S. 913 ## Text mi 86-1454. | FILED MAR 4 1987 T sciniciieiiibiami ; CLERK See: wsctinlioaaie Supreme Court, U.S... YOSEPH F. SPANIOL, JR. In The Supreme Court of the United States | October Term, 1986 o REBEL ANN MAYS and EVERETT F. MAYS, Petitioners, UNITED STATES OF AMERICA, Respondent. ° PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ° Auan Exuiorr RicHMAN Patricia ANNE PritcHARD Breit, Best, RicHMAN AND Boscu, P.C. Writer Square, Suite 900 1512 Larimer Street Denver, CO 80202 (303) 573-7777 Counsel for Petitioners March 5, 1987 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342- 2831 a QUESTION PRESENTED Whether medical benefits received by servicemen and their dependents under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) are a collateral source for which the United States of America is not entitled to set-off in awards under the Federal - Tort Claims Act? rm LIST OF PARTIES Petitioners’ children, Michelle Wamboldt, Vickie Averett and Michael Mays were added as plaintiffs lby amendment. All other parties herein are named in the =< caption. iil TABLE OF CONTENTS Page SR ny: | ccc i Teen sie iiemeomniniilintabains ii ee ig 8 5 yy! iv ERE EE a 2 JURISDICTION 2 STATUTES AND REGULATIONS INVOLVBD ...... 2 oe ty et | 4 REASON FOR GRANTING THE WRIT 0. 7 CONCLUSION . SF TREN SAI TNC ee EE 14 APPENDIX (Opinion of Court of Appeals and Findings of Fact, Conclusions of Law and I UN sscnicnseneleinnnainnentin . la iv TABLE OF AUTHORITIES Page Berg v. United States, 806 F.2d 978 (10th Cir. 1986) .. 6,9 Burke v. United States, 605 F. Supp. 981 (D. Md. | TG Fae A Mtn te, a BY 8 Gomez v. Black, 32 Colo. App. 332, 511 P.2d 531 | | ee 9,10 Haughton v. Blackships, 462 F.2d 788 (Sth Cir. 1972) .. 12 Johnson v. United States, 510 F. Supp. 1039 (D. Mont. 1981) .. oc Kistler v. Palsy, 173 Colo. 540, 481 P.2d 722, 724 “2 4 > Yipaantmeseptere errant — a 9 Mooney v: United States, 619 F. — 1525 (D.N.H. 1985) .. ERAT tanta Neato ig oP os Richards v. United States, 369 U.S. 1, 82 S. Ct. BL. aaa Easy a Bae Oh Ae 7 Smith v. United States, 487 F.2d 1013 (3d Cir. 1978). 11 Steckler v. United States, 549 F.2d 1372 (10th Cir. EDEN pcsitdh sia cu scchesduncepesaeeaeiaiaanekaeee aaa adele sasssny 9, 10 United States v. Gaidys, 194 F.2d 762 (10th Cir. ERE nS ran P NES Patna ge arn wee. ea Grew 7 United States v. Gray, 199 F.2d 239 (10th Cir. 1952) . 9 United States v. Harue Hayashi, 282 F.2d 599 oh fe. toe. Leite ibhitedks teeuad cakes | 11 United States v. Price, 288 F.2d 448 (4th Cir. 1961) 11, 12 Vanderbery v. Carter, 523 F. Supp. 279 (N.D. eID pra scssecsicts clcaiciceaaerads Suances cee nlbamine atensee aasalinaiaaaneahaentn D TABLE OF AUTHORITIES—Continued Page STATUTES 10 U.S.C. § 1079 2 10 U.S.C. § 1331 3 28 U.S.C. § 1346(b) 2 28 U.S.C. § 2674 ..... 2,4 32 C.F.R. § 199.7 3,5 32 C.F.R. § 199.9 3,5 38 U.S.C. § 310 ...... 10 38 U.S.C. § 331 10 .£> a In The Supreme Court of the United States October Term, 1986 REBEL ANN MAYS and EVERETT F. MAYS, Petitioners, v. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIGRARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT -) The Petitioners, Rebel Ann Mays and Everett F. Mays, respectfully pray that a writ of certiorari issue to review the Judgment and Opinion of the United States Court of Appeals for the Tenth Circuit, entered in the above-en- titled proceeding on December 5, 1986. ° 2 OPINIONS BELOW The Opinion of the United States Court of Appeals for the Tenth Circuit is reported at 806 F.2d 976, and is reprinted in the Appendix hereto, p. la, infra. The Findings of Fact, Conclusions of Law and Order of the United States District Court for the District of Colo- rado (Kane, D.J.) is reported at 608 F. Supp. 1476 (D. Colo. 1985), and is reprinted in the Appendix hereto, p. 6a, infra. Ly —_— JURISDICTION This suit was brought under the Federal Tort Claims Act, 28 U.S.C.§ 2674. Jurisdiction of the United States District Court was invoked under 28 U.S.C. § 1346(b). Judgment was entered in Petitioners’ favor in the United States District Court for the District of Colorado on May 10, 1985. The District Court’s judgment with respect to the issue of CHAMPUS benefits only was reversed by the judgment of the United States Court of Appeals for the Tenth Circuit, entered on December 5, 1986. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1). STATUTES AND REGULATIONS INVOLVED 1. 10 U.S.C. § 1079. Contracts for medical care for spouses and children: plans (a) To assure that medical care is available for spouses and children of members of the uniformed services who are on active duty for a period of more than 30 days, 3 the Secretary of Defense, after consulting with the other administering secretaries shall contract, under the author- ity of this section, for medical care for those persons under such insurance, medical service, or health plans as he con- siders appropriate. 2. 10 U.S.C. § 1331. Age and service requirements (a) Except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under ° Section 1401 of this title, if... (2) he has performed at least 20 years of service computed under Section 1332 of this title... 3. 32 C.F.R. § 199.7 (e-1) Program funds. The funds used by the CHAMPUS program are ap- propriated funds furnished by the Congress through the annual Appropriations Act for the Department of Defense and the Department of Health, Education and Welfare. 4. 32 C.F.R. § 199.9 (e-1) Eligibility. (b) Persons eligible— (b)(1) Retiree A member or former member of a Uniformed Service who is entitled to retired, retainer, or equiva- lent pay based on duty in a Uniformed Service. (b)(2) Dependent. A person who bears one of the following relation- ships to an active duty member (under a call or order that does not specify a period of thirty (30) days or less, to a retiree, to a NATO member who is stationed in or passing through the United States on official business, or to a deceased person who, at the time of death, was an active duty member or a retiree... (b)(2)(i) Spouse. A lawful husband or wife regardless of whether or not dependent upon the active duty member or re- tiree. ° STATEMENT OF THE CASE This claim arises under the Federal Tort Claims Act, °8 U.S.C. § 2674, for the negligent failure of physicians and employees of Fitzsimons Army Medical Center to di- agnose and treat Rebel Ann Mays for cancer. Rebel Ann Mays, who died subsequent to the filing of this action, was the wife and dependent of Everett Mays, a serviceman who retired after serving twenty-one years in the United States Air Foree. Following trial to the disiriet court, Respon- dent was found negligent and judgment was entered in Petitioners’ favor on May 10, 1985. As the dependent of a retired serviceman, a portion of Rebel Ann Mays’ medical and hospitalization expenses were paid by the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). At trial, the par- ties stipulated that of the Two Hundred Sixty-six Thou- sand Three Hundred Dollars ($266,300.00) of medical ex- penses incurred for Mrs. Mays’ care, One Hundred Ninety- 5) five Thousand Fifty-five Dollars ($195,055.00) were paid pursuant to the CHAMPUS program. The award of dam- ages to the Petitioners included funds paid as medical bene- fits on behalf of Rebel Ann Mays under the CHAMPUS program, the district court specifically finding that the benefits were a collateral source for which the United States was not entitled to a set-off. The CHAMPUS program was initially enacted as a medical insurance program entitling dependents of active duty members of the Uniformed Services to hospitalization and medical treatment. In 1966, the program was amended to expand the beneficiary population entitled to coverage to include retirees with no less than twenty years of service in the Uniformed Services, and their dependents. Vander- berg v. Carter, 523 F. Supp. 279 (N. D. Ga. 1981). 32 C.F.R. § 199.9. Everett F. Mays served twenty-one years in the United States Air Force. Tr. p. 3,1. 17 to p. 4, 1. 5. By virtue of such service, he had earned entitlement to retirement benefits. Accordingly, his wife and dependent, Rebel Ann Mays, was entitled to and received CHAMPUS benefits. The record establishes that had Mr. Mays served less than twenty years, neither he nor his dependents would have been entitled to such retirement benefits. Tr. p. 6, 1. 7 to p. 7, 1. 2. The CHAMPUS program is funded through a budget- ary allocation by Congress based upon the potential num- ber of beneficiaries in a given year. The funds used by the CHAMPUS program are appropriated by Congress through the Annual Appropriations Act, for the Depart- ment of Defense and Department of Health and Human Services. 32 C.F.R. § 199.7(e-1) (1977). The fund is sep- arate and apart from funds set aside to satisfy judgments under the Federal Tort Claims Act. Following the district court’s determination that the CHAMPUS benefits paid to Rebel Ann Mays were a col- lateral source, Respondent appealed to the Tenth Circuit Court of Appeals on the collateral source issue only. In short, Respondent argued that the-CHAMPUS benefits of One Hundred Ninety-five Thousand Fifty-five Dollars ($195,055.00) for past medical expenses were not a colla- teral source and that such an awatd was erroneous. The liability portion of the award was not appealed and was, in fact, summarily affirmed by the Tenth Circuit on June 16, 1986. In Berg v. United States, decided the same day as this ease, the Tenth Circuit held that government payments are collateral if the payments come from ‘‘a special fund that is separate and distinct from general government rev- enues’’ and to which the plaintiff has contributed. 806 F.2d 978, 985 (10th Cir. 1986). See p. 3a, fra. In the view of the Tenth Circuit, where the recipient of the bene- fits made a monetary contribution to the fund, it will be deemed a special fund separate and distinct from the gen- eral revenues. As stated by the Court: All of the money for the CHAMPUS program comes from the general treasury of the United States; no money is paid directly into the fund by the recipients of CHAMPUS benefits. We cannot view these gen- eral appropriations to the CHAMPUS program as ‘‘a special fund that is separate and distinct from gen- eral government revenues.’’ [citing Berg v. United States |. See p. 4a, mfra. Although the Tenth Circuit recognized that Rebel Ann Mays’ entitlement to receive CHAMPUS benefits was by virtue of the fact that Everett Mays had served in excess of 20 years in the Uniformed Services, the Court refused to find that contribution in the form of service is the type of contribution contemplated under Colorado’s collateral source rule. In the Court’s view, Petitioners’ entitlement to CHAMPUS benefits was based solely on Everett Mavs’ status, rather than his service contribution. The Tenth Cireuit accordingly reversed the district court’s holding that the CHAMPUS benefits were received from a colla- teral source, and remanded for a modification of the dam- age award. See p. da, infra. co) REASON FOR GRANTING THE WRIT BY IGNORING EVERETT MAYS’ COLLAT- ERAL CONTRIBUTION TO THE CHAMPUS FUND, THROUGH HIS TWENTY-ONE YEARS OF SERVICE IN THE UNIFORMED SER. VICES, THE TENTH CIRCUIT ERRONEOUS- LY APPLIED THE COLLATERAL SOURCE RULE. In actions brought under the Federal Tort Claims Act, the plaintiff’s recovery must be measured by the substantive law of the state in which the tort was com- mitted; accordingly, state law concerning the collateral source doctrine is controlling in Federal Tort Claims ac- tions. Richards v. United States, 369 U.S. 1, 82 S. Ct. 085 (1962); United States v. Gaidys, 194 F.2d 762 (10th Cir. 1952). Presently, even under similar collateral source rules, government benefits, including CHAMPUS bene- fits, are interpreted inconsistently on both the district court and cireuit court level. For example, both the dis- trict court below in the present case and the district court in Mooney v. United States, 619 F. Supp. 1525 (D.N.H. 1985), have found that CHAMPUS benefits are a collateral source for which the United States is not entitled to set- off. On the other hand, in Burke v. United States, 605 F. Supp. 981 (D. Md. 1985), it was held that CHAMPUS benefits were received from a wholly revenue-funded pro- gram, to which plaintiff did not contribute, and therefore could not be a collateral source. While the nature of government payments, including CHAMPUS benefits, under Federal Tort Claims actions will necessarily be governed by the particular state’s col- lateral source rule, it is clear that this Court’s guidance is needed in interpreting the nature of CHAMPUS bene- fits, so that they may be correctly analyzed under the appropriate state’s collateral source rule. Most impor- tantly, the nature of the beneficiary’s contribution to the CHAMPUS fund must be addressed, and it must be de- termined whether contribution in the form of the requi- site length of service, rather than a purely monetary con- tribution to the fund, is sufficient for the fund to be deemed collateral. The collateral source rule in Colorado, as in many states, dictates that an injured party’s recoverable dam- ages cannot be diminished by the value of benefits which the injured party may have received in the form of medi- eal care, insurance proceeds, continued wages, welfare, pension or like benefits she has received from independent or collateral sources. Steckler v. United States, 549 F.2d \ 1372 (10th Cir. 1977); Kistler v. Palsy, 173 Colo. 540, 481 P.2d 722, 724 (1971). Under Colorado law, the collateral source rule does not apply to mere gratuitous benefits received from governmental sources. Gomez v. Black, 32 Colo. App. 332, 511 P.2d 531 (1973). Prior to its decision in Berg v. United States, 806 F.2d 978 (10th Cir. 1986), there was an obvious conflict in Tenth Cireuit decisions regarding the application of the collateral source rule. In United States v. Gray, 199 F.2d 239 (10th Cir. 1952), the court focused on legislative history and intent to determine that veteran’s hospitaliza- tion benefits were a collateral source, for which no offset was allowed. Berg v. United States, 806 F.2d 978, 984 Fn. 4. In comparison, in Steckler v. United States, supra, the Tenth Circuit focused on the source of the benetit rather than the legislative intent, and held that Social Security benefits, funded in part by the beneficiary’s con- tribution, are ‘‘logically collateral,’’ while veteran’s bene- fits are ‘‘derived entirely trom government funds and cannot be claimed to originate in any collateral contribu- tion.’’ 549 F.2d at 1379. While to a certain degree, the Berg decision clears up the confusion left in the wake of Steckler, the J/ays opinion introduces a new inconsistency. Specifically, Berg v. Umted States held that government payments are col- lateral if the payments come from ‘‘a special fund that is separate and distinct from general government reve- nues’’ and to which the Plaintiff has contributed. 806 F.2d at 985. Analysis of the source of the benefit, in- cluding the beneficiary’s contribution thereto is cer- tainly the better approach and more in line with Colorado 10 law as set forth in Gomez v. Black, supra. However, in Mays, the Tenth Circuit used an excessively restrictive ap- proach in analyzing the necessary contribution of the re- cipient. The Tenth Circuit summarily dismissed Llverett Mays’ twenty-one years of service in the Uniformed Ser- vices as ‘‘not the type of contribution required by the collateral source rule.’’ p. 4a, infra. However, this in- terpretation ignores Colorado case law, which requires only that in order to. be a collateral source, the govern- mental benefits must not be gratuitous. Certainly, bene- fits to which one is entitled only after twenty years of service in the Uniformed Services are not benefits gra- tuitously bestowed. In fact, eligibility for CHAMPUS benefits was earned by Everett Mays through the requi- site twenty years of service in the Uniformed Services. As such, CHAMPUS benefits are part of a compensation package offered to servicemen in exchange for their twenty years of service, and therefore more closely re- semble the Social Security benefits found in the Steckler decision to be ‘‘logically collateral.’’ Clearly, without Mr. Mays’ contribution, in the form of his service in the U.S. Air Force, CHAMPUS benefits would have been unavailable to Rebel Ann Mays. The Tenth Circuit’s re- liance on its previous holding in Steckler v. United States, that veteran’s benefits are noncollateral, is misplaced. In order to receive veteran’s benefits, there is no require- ment regarding length of service. See 388 U.S.C. 64 310 and 331. As such, entitlement to veteran’s benefits is more properly considered a result of status, rather than contribution. In contrast, such is not the case with regard to entitlement under the CHAMPUS program. ——i———+4 11 Several jurisdictions have similarly embraced the rule that gratuitous governmental benefits paid from unfunded general revenues are to be deducted from a Federal Tort Claims Act recovery, while similar benefits conferred oui of a special fund are not. Smith v. United States, 487 F.2d 1013 (3rd Cir. 1978); United States v. Price, 288 F.2d 448 (4th Cir. 1961); United States v. Harue Hayashi, 282 I'.2d 599 (9th Cir. 1960); Johnson v. United States, 510 F. Supp. 1039 (D. Mont. 1981). In Smith v. United States, the Third Cirenit held that Social Security sur- vivor benefits were collateral to a Federal Tort Claims Act recovery, and should not be deducted. In so holding, the Smith court cited United States v. Harue Hayashi, supra, in which the Ninth Cireuit held that Social Security survivor benefits were a collateral source since the money came from a special fund supplied by the beneficiary or a relative upon whom the beneficiary was dependent. Smith, 587 F.2d 1013, 1015. Similarly, in Johnson v. United States, veteran’s benefits paid from unfunded general revenues were held not collateral, while Social Security disability benefits, paid from a special fund sup- plied in part by the beneficiary, were held collateral. In each of these cases, the courts distinguish between benefits paid by the government out of the general trea- sury, and benefits paid from a ‘‘special fund’’ created by the government and supplied in part by contribution of the beneficiary or one upon whom the beneficiary is de- pendent. While in each of the three cited cases the con- tribution to the special fund was through a monetary pay- ment into the fund, it is likewise clear that contribution to such a special fund may be made through service. For 12 example, it is generally recognized that the government often pays its employees less in salary than private em- ployers but compensates for their lower wages by pro- viding employees with other incentives, such as fringe benefits including attractive pension and retirement plans. Such benefits serve the purpose of attracting and retain- ing qualified employees who might otherwise be drawn to private employment. Consequently, the benefits, as part of the employee’s compensation package, are provided as a substitute for wages, very similar to a mandatory salary deduction for henefits. Such a method of beneficiary contribution to a special fund has been recognized by the Fourth Cireuit Court of Appeals in United States v. Price, supra, and by the Fifth Circuit in Haughton v. Blackships, 462 F.2d 788 (dth Cir. 1972). In Price, it was held that the benefits received by plaintiff, as a government employee, under the Civil Service Retirement Act, were collateral to a Federal Tort Claims Act recovery. While the disability and retirement benefit fund was supplied by a mandatory salary deduction and matched by government contributions, the court noted that the employee’s contribution to the fund was arguably greater than the salary deduction, since the portion con- tributed by the government could be deemed further con- sideration for the emplovee’s services. 288 F.2d at 451, Fn. 6. Although it did not involve government benefits, the same was noted by the Fifth Cireuit in Haughton v. Blackships, supra, in which the retirement benefits re- ceived by the plaintiff were funded entirely by employer contributions. Although the plaintiff made no monetary contribution to the retirement fund, the court found that 13 such benefits were collateral, holding ‘‘. .. where such pay- ment by the employer should be considered in ihe nature of a fringe benefit or deferred compensation, the em- ployer should rot be entitled to benefit by setting off such income in mitigation of his responsibility as a tortfeasor.’’ Based upon the foregoing, it is evident that the Tenth Cireuit’s finding that Rebel Ann Mays received CHAMPUS benefits because of her husband’s status rather than a monetary investment, and its holding that a monetary contribution is required under Colorado’s col- lateral source rule, ignores economic reality and is overly restrictive. ‘The district court below made a specific find- ing that Everett Mays’ contribution in the form of twenty- one years of service in the Air Force has supplied the fund trom which Rebel Ann Mays, as his dependent, was entitled to receive CHAMVUS benetits. Accordingly, her receipt of CHAMPUS benefits is similar io the receipt of Social Security survivor benetits or retirement bene- fits established through a special fund contributed to by the beneficiary or relative upon whom the beneficiary was dependent. As demonstrated above, CHUAMVUS is funded through a separate budgetary allowance by Con- gress and as such is a separate fund from that which satisfies judgments under the l’ederal Tort Claims Act. The CHAMPUS benefits are supplied to dependents oi retired Uniform Servicemen by virtue of the serviceman’s twenty years of service. Accordingly, Mr. Mays’ service clearly supplied the fund out of which Mrs. Mays was entitled to receive CHAMPUS benefits. Moreover, the benefits were provided to Everett Mays as compensation for his years of service, and were not bestowed gra- tuitously. ‘ l4 As indicated above, a great amount of confusion and — inconsistency surrounds the issue of CHAMPUS benefits and government benefits in general. Determination of the issues involved herein, including the issue of service contribution as opposed to monetary contribution, will provide necessary guidance for all courts to properly apply the collateral source rule as it stands in a particular juris- diction. CONCLUSION For the reasons presented above, this Petition for Certiorari should be granted. Respectfully submitted, Atan Exusorr Richman Patricia Anne Pritcuarp Breit, Best, RicumMan anno Boscu, P.C. Writer Square, Suite 900 1512 Larimer Street Denver, CO 80202 (303) 573-7777 Counsel for Petitioners APPENDIX PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT REBEL ANN MAYS and ) EVERETT F. MAYS, ) ) Plaintiffs-Appellees, ) ) No. 85-2029 v. ) ) UNITED STATES OF AMERICA, ) ) ) Defendant-Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 80-K-770) (Filed December 5, 1986) Nancy E. Rice, Assistant U.S. Attorney (Robert N. Miller, United States Attorney, with her on the brief), for the Defendant-Appellant. Alan E. Richman, of Breit, Best, Richman and Bosch, of Denver, Colorado (Patricia A. Pritchard, of Breit, Best, Richman and Bosch, of Denver, Colorado, with him on the brief), for the Plaintiffs-Appellees. la 2a Before HOLLOWAY, Chief Judge, TACHA, Cireuit Judge, and BROWN,’ District Judge. TACHA, Cireuit Judge. This case presents another opportunity to consider the application of the collateral source rule in Colorado. In Berg v. United States, No. 85-1969, slip op. (10th Cir. —, 1986), a suit against the United States under the Federal Tort Claims Act (FTCA) decided this day, we held that Medicare hospital insurance benefits are a col- lateral source. In the present case we consider whether benefits received from the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) are a collateral source to a FTCA award. Rebel Ann Mays, the wife of a retired member of the United States Air Foree, died from eancer in 1982. This suit was filed by the Mayses against the United States claiming that the Fitzsimmons (sic) Army Medical Center (hospital) failed to diagnose and treat her for cancer. The district court found that the hospital had acted negligent- ly and awarded damages of $504,300.' The government does not challenge the finding of liability. The only ques- tion raised before this court is whether the $195,055 in CHAMPUS benefits received by Rebel Ann Mays should be deducted from the damages awarded to the Mays. *The Honorable Wesley £. Brown, United States District Judge for the District of Kansas, sitting by designation. : The decision of the district court is reported in Mays v. United States, 608 F. Supp. 1476 (D. Colo. 1985). 3a In Berg, we recognized that Colorado has adopted the collateral source rule. Slip op. at —. The Colorado courts have interpreted the collateral source rule to pro- vide that ‘‘compensation or indemnity received by an in- jured party from a collateral source, wholly independent of the wrongdoer and to which he has not contributed, will not diminish the damages otherwise recoverable from the -wrongdoer.’’ Kistler v. Halsey, 173 Colo. 540, 545, 481 P.2d 722, 724 (1971) quoted in Berg, slip op. at —. A plaintiff in a FTCA suit can recover damaces from the United States in addition to compensation from a collateral source. We held in Berg that government pay- ments are collateral if the payments come from ‘‘a special fund that is separate and distinet from general vovern- ment revenues’? and to which the plaintiff has contrib- uted. Slip op. at —. Our question in this ease, therefore, is whether CHAMPUS benefits satisfy this test.? The CHAMPUS program provides medical benefits to, inter alia, the dependents of certain retired members of the armed services. 10 U.S.C. § 1079. ‘*The funds used by the CHAMPUS program are appropriated funds fur- nished by the Congress through the annual Appropria- tions Act for the Department of Defense and the Depart- 2 The two federal district courts that have considered wheth- er CHAMPUS payments are a collateral source have reached different conclusions. Compare Mooney v. United States, 619 F. Supp. 1525, 1529-30 (D.N.H. 1985) (CHAMPUS payments are a collateral source) with Burke v. United States, 605 F. Supp. 981, 992 (D. Md. 1985) (CHAMPUS payments for past medical expenses are not a collateral source). We note only that the court in Mooney found the payments collateral despite the court’s belief that “it is unclear whether payments made by CHAMPUS are from a specially funded source.” 619 F. Supp. at 1530. 4a ment of Health, Education, and Welfare [now the Depart- ment of Health and Human Services].’’ 32 C.F.R. § 199.7 (e-1) (1985). All the money for the CHAMPUS program comes from the general treasury of the United States; no — money is paid directly into the fund by the recipients of CHAMPUS benefits. We cannot view these general ap- propriations to the CHAMPUS program as ‘‘a special fund that is separate and distinet from general govern- ment revenues.’’ Berg, slip op. at —*> CHAMPUS pay- ments come exclusively from the general revenues of the United States. Therefore, such payments are not from a source collateral to the United States. Everett Mays argues that his contribution to the CHAMPUS program consists of his twenty-one years of service in the Air Foree. Rebel Ann Mays would not have been eligible for CHAMPUS benefits if her husband had not served at least twenty years in the armed services. 32 C.F.R. § 199.9(b) (1985); 10 U.S.C. § 13381(a)(2). This service, however, is not the type of contribution required by the collateral source rule. Rebel Ann Mays received CHAMPUS benefits because of her husband’s status, not because of a monetary investment. A showing that one’s status makes one eligible for government benefits is not a showing that one has ‘‘contributed to a special fund’’ from which benefits are now being received. In Steckler v. United States, 549 F.2d 1372 (10th Cir. 1977), we held that veterans disability benefits were not 3 The plaintiffs find it important that Congress allocates a specitied amount of money to the CHAMPUS fund each year. The collateral source rule, however, is not one that ‘makes recovery depend on bookkeeping conventions.” Overton v. United States, 619 F.2d 1299, 1308 (8th Cir. 1980). Rather, the focus of the rule is on the source of the funds. 5a a collateral source in a FTCA suit. The military service that made the plaintiff eligible for veterans disability bene- fits was not regarded as a ‘‘contribution’’ in Steckler. 549 F.2d at 1379; see also, Feeley v. United States, 337 I'.2d 924, 933-34 (38d Cir. 1964). Accordingly, we will not characterize the military service of Everett Mays as a contribution for the purposes of the collateral source rule here. The plaintiffs also suggest that the CHAMPUS pro- gram provides fringe benefits in lieu of a higher salary for members of the armed services. The acceptance of a lower salary, it is argued, ean be characterized as a con- tribution. This argument, however, is contrary to the re- sult that we reached in Steckler. Even if the CHAMPUS benefits at issue in this case could be viewed as fringe benefits, the veterans disability benefits in Steckler could also be viewed as fringe benefits. Our conclusion that the benefits in Steckler did not constitute a contribution de- mands that we reach a similar result concerning the CHAMPUS benefits in this ease. The United States has already paid some compensa- tion through the CHAMPUS program for the injuries suffered by Rebel Ann Mays. To award damages for a loss for which the United States has already compensated the plaintiffs would be to allow a double recovery. There- fore, we reverse the decision of the district court that the CHAMPUS benefits were received from a collateral source and we remand for a modification of the damage award consistent with this opinion. REVERSED AND REMANDED. ) 6a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NQ,—80-K-770 REBEL ANN MAYS and EVERETT F. MAYS, Plaintiffs, UNITED STATES OF AMERICA, Defendant. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER (Filed May 10, 1985) KANE, J. Plaintiffs’ complaint was filed pursuant to 28 U.S.C. § 1346(b) of the Federal Tort Claims Act. It alleged that physicians and other medical staff at Fitzsimons Army Medieal Center in Denver, Colorado were negligent in their eare and treatment of Rebel Ann Mays. Plaintiffs’ orig- inal complaint alleged the defendant was negligent in: (1) failing properly to follow up and diagnose the lung eancer Mrs. Mays manifested in January, 1977; (2) ren- dering substandard treatment and care to Mrs. Mays in the administration of a radiation therapy treatment plan; and (3) failing adequately to inform and disclose to Rebel Ann Mays the various diagnoses, alternative plans for treatment and risks involved in the chosen plan of radia- tion treatment. The original complaint sought damages for personal injuries and losses sustained by Rebel Ann Mays and further asserted a claim for loss of consortium on behalf of Everett Mays, her husband. Ta In January 1982, Mrs. Mays died of cancer. In Feb- ruary 1982, plaintiffs’ first amended complaint was filed adding a third claim for relief for the wrongful death of Rebel Ann Mays pursuant to the Colorado Wrongful Death Statute C.R.S. 13-21-201 and for damages provided for under the Colorado Survival Statute C.R.S. 13-20-101. The children of Mr. and Mrs. Mays, Michelle Wamboldt, Vickie Averett and Michael Mays were added as_plain- tiffs by an additional amendment. LIABILITY The following facts were established at trial: Rebel Ann Mays’ date of birth was January 31, 1982 (sic). She was 44 years of age in January 1977. Mrs. Mays was mar- ried on October 31, 1951 to Everett F. Mays. Mr. Mays joined the United States Air Force in 1951 and retired after 23 years of service. Following Mr. Mays’ retirement, he and his wife received medical care pursuant to the Civilian Health and Medical Program of the Uniform Services (CHAMPUS). On January 6, 1977, Mrs. Mays was examined and evaluated at Fitzsimons’ out-patient clinic for complaints of voice loss, bronchitis and cough. On that date, chest x-rays were taken which revealed a shagey round lesion- in the left lower lobe of her lungs which by x-ray was estimated to be approximately four (4) centimeters in size. The reviewing radiologist, Major William James Morrison, M.D., noted on his report that further follow-up was required in seven to ten days to exclude the possibil- ity of carcinoma or organizing infaret. Rebel Ann Mays was neither advised by Fitzsimons personnel of the need to return for follow-up examination nor notified of the condition shown on the x-ray. No follow-up examination was conducted by physicians or other personnel at Fitz- simons to rule out the possibility of cancer or infarction. On March 4, 1977, Rebel Ann Mays returned to Fitz- simonus for evaluation of complaints of right-sided neck and shoulder pain. At that time x-rays were taken, how- 8a ever, no action was taken regarding the previous x-ray finding or recommendation for follow-up in January 1977. Mrs. Mays was not contacted by Fitzsimons personnel or medical staff regarding any of the previously noted find- ines, On April 14, 1978, Rebel Ann Mays resigned her posi- tion as a directory assistance operator with Mountain Bell because she was experiencing persistent fatigue. On April 27, 1978, Rebel Ann Mavs was examined as an out-patient at Fitzsimons and evalnated for high blood pressure. Chest x-rays were again requested. The medical records reflect that chest x-rays were not taken until] May 23, 1978. These x-rays displayed the same lesion previously evi- dent in the January 1977 x-rays. The lesion loeated in the left lower lobe of the lung had markedly increased in size and now appeared on x-rays to have grown to an ap- proximate size of five and one-half (5.5) centimeters. Mrs. Mays was apparently asked to return to Fitzsimons on June 1, 1978 for evaluation of several problems inelud- ing the left lower lobe chest lesion. She was seen and ad- mitted to the pulmonary service on June 1, 1978. Diagnostie tests to determine if the lung lesion was eaneer were conducted. A thoracotomy and left lower lo- bectomy were performed to remove the tumor on June 22, 1978. The surgery demonstrated lymph node involve- ment on the bronchial and perihilar nodes. The medias- tinal nodes were clinically negative. The pathology report from the surgery revealed that three out of four perihilar nodes were positive for cancer and five out of eight bron- chial lymph nodes were positive fer cancer. The report also confirmed the mediastinal nodes were negative. The cancer was diagnosed as an adnocarcinoma. As a result of the positive lymph nodes finding, a course of radiation therapy was recommended. This ra- diation therapy was a ‘‘split course’’ program in which Mrs. Mays received two weeks of radiation therapy. Ra- diation treatments were initiated on .iuly 6, 1978 and con- cluded on September 8, 1978. Following completion of the radiation therapy, Mrs. Mays’ initial recuperative pe- 9a riod progressed well. On November 17, 1978, Mrs. Mays was seen and reported no complaints, good appetite with no weight loss and was requested to return by the exam- ining physician in five months. In December 1978 and January of 1979, Mrs. Mays began to experience numbness and tingling in the legs, loss of sensation and a loss of bladder control. In carly January 1979, Mrs. Mays found her ability to walk was progressively decreasing because of loss of sensation and muscle contro] in the lower extreinities. Mrs. Mavs was admitted to Fitzsimons on January 12, 1979 for evaluation of these signs and symptoms. An initial diagnosis of ra- diation myelitis was made. There was no treatment for this condition. She was discharged on January 16, 1979. Her eondi- tion progressively deteriorated. She was readmitted to Fitzsimons on March 12, 1979. By this time, she was para- lyzed below the mid-chest level. The diagnosis was con- firmed as a radiation induced tranverse myelitis at the fourth and fifth thoracic vertebral levels. This was an ir- reversible condition for which there was no treatment. On March 22, 1979, Mrs. Mays was transferred by ambulance from Fitzsimons to Craig Rehabilitation Hoe-- pital in Denver, ,Colorado for intensive rehabilitation for paraplegia. She remained at Craig Rehabilitation Hospi- tal until June 15, 1978 (sic) when she was discharged to go home. During the time period from mid-June 1979, until May 1980, Mrs. Mays was seen on an out-patient and in- patient basis at Swedish Hospital, Denver, Colorado on numerous occasions for complications, including thrombo- phlebitis and bronchial infections. Additionally, she re- ceived physical therapy during this time. In the late spring of 1980, Mrs. Mays began to ex- perience respiratory difficulty and congestive heart fail- ure. She was admitted to Porter Memorial Hospital in Denver, Colorado on May 28, 1980 for purposes of eval- uating her condition. She had fluid build-up in the peri- cardial sac surrounding the heart. Perieardiocentisis, a 10a procedure to remove the fluid, was performed on two oc- casions to attempt to alleviate this condition. These pro- cedures were unsuccessful. A pericardectomy and de- bridement of the sterum was performed in June, 1980. The findings at surgery were totally consistent with ex- treme radiation damage to the tissues of the chest and pericardium. Mrs. Mays had numerous complications fol- lowing this procedure including respiratory distress re- quiring a trachostomy and debridement of the sternum and chest tissues. In addition, she developed a decubitis uleer which had to be surgically corrected. On July 24, 1980, Mrs. Mays was transferred from Porter Memorial Hospital to Craig Hospital. During this hospitalization, Mrs. Mays was subjected to numerous procedures including surgical debridement of the sternum and corrections of the decubitis uleer. Mrs. Mays was discharged from Craig Hospital in November, 1980. She returned home for a short period of time, but was read- mitted to Swedish Hospital on January 23, 1981 because of a recurrent deep-chest tissue infection. Mrs. Mays was hospitalized at Swedish until April 16, 1981 during which time numerous surgeries were per- formed for sternum debridement and closure of the in- fected wound of the chest. Again, the surgical findings were consistent with extreme radiation damage to the chest tissues and cavity. In December 1981, Mrs. Mays was readmitted to Swedish Hospital for evaluation and po- tential treatment of a recurrence of her cancer. She re- ceived limited therapy, but the cancer at this time was determined to be untreatable. Pursuant to Mrs. Mays’ request, she was discharged on January 22, 1982 to re- turn home. She died on January 27, 1982. The evidence establishes two distinct acts of medica! negligence in the care rendered to Mrs. Mays at Fitz- simons Army Medical Center. The first related to the failure to follow-up and diagnose the lung cancer in Jan- uary 1977. All the medical experts and witnesses who testified agreed that the failure to notify her of the x-ray = a findings on January 7, 1977 was below the standard of care for out-patient clinical practice in the community at that time. There were multiple failures on the part of Fitzsimons Army Medical Center, includins not properly maintaining records, not notifying Mrs. Mays of her con- dition, and not ensuring appropriate follow-up care of her condition, Had care in conformity with the applicable standard of care been delivered, timely diagnosis and treatment of the lung eanecer would have occurred at minimal cost in late January or early February of 1977. Substandard care was the cause of the delay in the treatment of Rebel Ann Mays’ cancer. I find that defendant’s care and treat- ment of Rebel Ann Mays fell below acceptable standards of medical care and as such defendant’s care and treatment of plaintiff was negligent. Larsen v. Linpahl, 167 Colo. 409, 450 P.2d 77 (1968); Short v. Downs, 36 Colo. App. 109, 537 P.2d 754 (1975); Caro v. Bumpus, 30 Colo. App. 144, 491 P.2d 606 (1971). The plaintiff must also establish that the defendant’s conduct was the cause of her injury. Portner v. Swear- imgen, 695 F.2d 435 (10th Cir. 1982). To establish proxi- mate causation, one must prove with ‘‘reasonable prob- ability’? that the injury was caused by the defendant’s negligence. In this case the substandard eare was the cause of the delay in the treatment of Mrs. Mays’ cancer. However, this case presents an issue which has not been addressed by Colorado appellate courts. The issue is whether plaintiffs may recover damages when the de- fendant’s conduct was not the cause of the medical con- dition which caused the injury, but rather was the cause of a substantially increased risk of resulting harm. In this case, the resulting harm was a substantially reduced chance of recovery or survival from the cancer. In other words, are the plaintiffs entitled to reeover damages for the negligent failure to diagnose the decedent Rebel Ann Mays’ lune cancer and the resultant loss of a chance of recovery. The facts of this case present circumstances for which there is no guidance from Colorado courts. 12a Historically, the proof of the element of causation in failure to diagnose cases in the medical negligence setting did not permit recovery in cases where the defendant’s negligence either substantially increased the risk of result- ing harm or substantially reduced the chances for recov- ery or survival, but the very nature of the disease or ail- ment precluded testimony based upon ‘‘reasonable medical probability’’ that ‘‘but for’’ the doctors’ negligence, the harm would not have resulted. In response to the harsh- ness of the strict application of reasonable medical prob- ability and the difficult cases such as the the instant ease, courts have carved out the ‘‘value of a chance’’ theory of causation. The seminal case with respect to the ‘‘loss of a chance of survival’? theory is Hicks v. United States, 368 F.2d 626 (4th Cir. 1966). In that case the decedent’s estate filed an action under the Federal Tort Claims Act on the theory that death was due to the negligence of a treating physician. The uneontroverted evidence established that if the decedent had heen operated on promptly, she would have survived. The defendant’s contention was that the decedent’s survival, even given appropriate treatment, was not an absolute certainty. In response, the court in Hicks stated: When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise con- jectures as to the measure of the chance that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable... The law_ does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and op- erated on promptly. Hicks v. United States, 368 F.2d at 632. (Emphasis in original.) Other courts followed and adopted the reasoning of Ilicks and permitted the issue of causation in misdiag- 13a nosis and failure to diagnose cases to go to the fact finder based on ‘‘diminished chances’’ or ‘‘inereased risk’’ with- out strict application of the ‘‘but for’’ test. Many of these cases have involved failures to diagnose cancer and the diminished chance of survival resulting from the de- fendant’s conduct. For example, in Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970), there was a one-month delay in sending lab slides to a pathologist. The slide, when exam- ined by the pathologist showed lymphocarcoma. During that one-month period, the patient progressed from stage one lymphoearcoma with a 35% chance of survival to a stage two lymphoeareoma with only a 24% chance of sur- vival. Because the delay in diagnosis was prejudicial to the decedent’s recovery, the court ruled that 11% diminu- tion in chance of survival was compensable. The Hicks rationale has been adopted in McBride v. United States, 462 F.2d 72 (9th Cir. 1972). Tn that case, the court held that when a plaintiff’s cause of action rests upon an al- legedly negligent failure to give necessary treatment, the absence of positive certainty does not bar recovery if the negligent failure to provide treatment deprived the patient of a significant improvement in his chances for recovery. Daniels v. Hadley Memorial Hospital, 548 F.Supp. 278, 320, 566 F.2d 649 (D.C. Cir. 1977) again cited Hicks with approval and ruled, in a ease involving a patient who went into anaphylactic shock and whose chances of sur- vival were reduced by defendant’s conduct, that the ex- tent to which the defendant has interfered with these chances must be taken into account. Similarly, in James v. United States, 483 F.Supp. 581 (N.D. Cal. 1980) the United States failed to inform plain- tiffs of suspected cancer found on a chest x-ray during a pre-employment physical. Two years later when the lung eancer was finally diagnosed. it was inoperable. There was a serious question of whether the. tumor was even op- erable when the diagnosis occurred, but plaintiff’s ex- pert indicated that the plaintiff had lost a 10% to 15% chance of survival over 5 years. The court commented extensively on the lost chance of benefit from earlier treatment and stated ‘‘no matter how small the chances l4a may have been—and its magnitude cannot be ascertained —no one ean say that the chance of prolonging one’s life or decreasing one’s suffering is valueless. 483 F.Supp. at p. 587. In Herskovits v. Group Health Cooperative of Pucet Sound, 664 P.2d 474 (Wash. 1983), the court permitted recovery in a survival action predicated upon the defen- dant’s failure to make a timely diagnosis of the dece- dent’s lung cancer. Expert medical testimony established that if the decedent’s tumor was a ‘‘stage one’’ tumor in December 1974 and diagnosed as such at that time, the decedent’s chance for survival would have been 39%. Assuming this tumor had progressed to stage two in June 1975, the decedent’s chance for survival was 25%. Thus, according to expert medical testimony, the delay in diag- nosis reduces the decedent’s chance for survival by 14%. The court held that the 14% reduction in the decedent’s chance for survival was sufficient evidence of causation to allow the jury to consider the question of whether the failure of timely diagnosis was a proximate cause of death, regardless of the undisputed fact that the decedent had less than a 50% chance of survival at all pertinent times, The majority of courts which have addressed the loss of a chance theory has permitted compensation for the lost chance of survivability. Rebel Ann Mays sustained just such an injury by virtue of the defendant’s negligent medical eare. I hold that the plaintiffs have established proximate cause in this ease. The defendant caused a substantial reduetion in Mrs. Mays’ chance of survival All physicians who addressed this issue in their testi- mony acknowledged that the failure to follow-up on the initial x-ray finding in .JJlannary 1977 was below appli- cable standards of care and that had appropriate follow- up been conducted, proper diagnosis and probable surgi- eal intervention would have occurred in January or Feb- ruary of 1977. Further, it has been established that be- cause of the approximate 15 to 16 month delay occasioned lida by defendant’s negligence, Mrs. Mays’ chances of sur- vival were reduced by the further spread of the tumor in the lung, bronchial and perihilar nodes and distant metastasis in other areas of the hody. Defendant’s ex- perts, although unable to render specific opinions re- garding survivahility, were of the opinion that in general principle Rebel Ann Mays’ survivability had been re- dueed by the delay in treatment. The plaintiffs’ expert in radiation oneology, Dr. Theodore Phillips, was of the opinion that had Mrs. Mavs’ lung cancer been promptly diagnosed in January of 1977 and had appropriate surgical intervention occurred at that time, Mrs. Mays’ chance of survival would have been 40%. Further, Dr. Phillips stated that in his opinion in January 1977, Mrs. Mavs had a ‘‘stage one’? tnmor with no lymph node involvement: however, the delav in diagnosis and treatment, as a result of the substandard eare rendered by Fitzsimons Army Medieal Center, permitted the tumor to progress to ‘‘stage two,’’ thereby reducine Mrs. Mays’ chance of survival to 15° or less. Accordingly, if proper diagnosis and treatment had been made in January 1977, Mrs. Mays’ chance of survival would have been two or three times more likely than was the case in Mav of 1978. IT find that Dr. Phillips’ testimony is persuasive. I find that as a result of the medical negligence in the care rendered at Fitzsimons Army Medical Center, Rebel Ann Mays’ chance of survival beyond five years was reduced from 40% to 15%. The plaintiff Everett F. Mays is entitled to reeover damages for the reduetion in Rebel Ann Mays’ chance of survival. The second distinct act of medical malpractice oe- curred with respect to the radiation therapy administered to Rebel Ann Mays at Fitzsimons Army Medical Center. The testimony of expert witnesses established that the radiation therapy administered to Rebel Ann Mays was helow applicable standards of radiation therapy in the community. As a result of the substandard care, Mrs. Mays received radiation doses to the chest, mediastinum, l6a heart and spinal cord in excess of known safe total tol- erance levels of radiation to those tissues. This excessive radiation was the cause of Mrs. Mays’ paraplegia and injury of the tissues of the chest, sternum and heart. I conclude that the multiple surgeries, hospi- talization and medical expenses incurred by Rebel Ann Mays were caused by the negligence of the defendant. I find that the cause of death, however, was the presence of the eancer in the decedent’s brain. DAMAGES The measure of damages is governed by Colorado’s wrongful death statute which employs the principle of net pecuniary loss. The losses are-as follows: The parties stipulate that of the $266,300 medical ex- penses incurred by the Mays family as a result of the de- fendant’s negligence, $195,055 has been paid by the CHAMPUS program under the authority of 10 U.S.C. § 1079. In January 1977, Rebel Ann Mays was 44 years of ave and had a life expectancy of 29 years. Mrs. Mays was employed as a directory assistance operator at Moun- tain Bell and had a work life expectaney from that date of 12 vears. Her salary was approximately $183 biweekly. In addition, she received fringe benefits in various forms of health insurance, sick benefits, disability pay, life in- surance and telephone concessions. She left her employ- ment at Mountain Bell because of fatigue associated with her lung ecaneer. Had proper treatment occurred she would have been physieally capable of returning to her position as a directory assistance operator. In addition, she provided household services and bookkeeping ser- vices for her husband’s trucking business. Further, as a result of her disability and the attendant care rendered by Mr. Mays, he was unable to devote the same energy and time to his trucking business, resulting in a substan- tial reduction in his gross sales and income for the years in which Mrs. Mays was paralyzed and disabled. Further, the plaintiffs Vicki Everett (sic) and Michelle Wamboidt, 17a : sustained losses of income and time during the time they rendered care and services for their mother. The plaintiffs presented unrebutted evidence of economic losses by Don- ald P. Stegall, Ph.D., an expert economist. Dr. Stevall computed the total past losses, taking into account per- sonal consumption of Rebel Ann Mays, to be as follows: Past Loss Earnings Capacity (Mrs. May) $ 41,000 Fringe Benefits (Mrs. Mays) 5,600 Bookkeeping Services (Mrs. Mays) 9,400 Household Services (Mrs. Mays) 20,600 Income (Mr. Mays) 73,700 Home Care (daughters) 7,600 Medical Expenses 266,300 Medical Transportation 800 TOTAL PAST LOSS $425,000 I hold that beeause of the added negligence involving ex- cessive radiation the entire amount of past loss is not af- fected by the lost chance issue.' Dr. Stegall also testified 'The past losses are attributable to defendant's negligence both in the failure to give prompt treatment which resulted in the lost chance and in the treatment which caused the para- plegia and other radiation injuries. It would be practically im- possible to allocate past losses to the separate instances of neg- ligence. Additionally, such a distinction would be irrelevant. To the extent plaintiffs’ past losses are attributable to defen- dant’s negligent treatment, they should be entirely recovered and undiminished by Mrs. Mays’ limited life expectancy from the cancer known to exist in January, 1977. To the extent past losses derive from the failure to give prompt treatment and negligent follow-up, plaintiffs’ should also recover in full. Plain- (Continued on following page) 18a regarding the future net pecuniary loss from the date of trial. From his testimony I find that had Mrs. Mays not lost the change of a normal life expectancy she would have future losses as follows: Earning Capacity $ 37,000 Fringe Benefits 5,100 Bookkeeping 24,300 Household Services 106,800 $173,200 The per cent of chance lost was 25. Therefore, the _ damage related to net pecuniary loss caused by defen- dant is .25 x 173,200 or $43,300. The total net pecuniary loss suffered by the decedent was $468,300. I find that the value of Mr. Mays loss of consortium from January, 1979, to Mrs. Mays’ death in January, 1982 is $36,000. The to- tal of damages, therefore, is $504,300. COLLATERAL SOURCE In Kistler v. Halsey, 481 P.2d 722, 724 (Colo. 1971) the Colorado Supreme Court defined the collateral source rile as follows: (Continued from previous page) tiffs have shown that all medical treatment, not necessitated by defendant’s affirmative misfeasance, derived from the state of Mrs. Mays’ cancer as it was in June, 1978. The cost of Mrs. Mays’ treatment in June, 1977, had the original diagnosis and treatment been timely, would have been minimal. Defendant has not rebutted this showing nor shown which, if any, medical expenses would have been incurred irrespective of the distinct malpractice episodes. Other than the cost of an initial x-ray, | doubt that such a showing could ever be made. Thus, all past — losses were proximately caused by defendant's neg- igence. Future net pecuniary loss, however, must be diminished by Mrs. Mays’ chance of dying before the occurrence of any of the negligent acts of defendant beginning in January, 1977. 19a - Simply stated, it is that compensation or indem- nity received by an injured party from a collateral source, wholly independent of the wrongdoer and to which he has not contributed, will not diminish the damages otherwise recoverable from the wrongdoer. The phrase ‘‘to which he has not contributed’? has an ambiguous antecedent, but in view of the Colorado Court of Appeals decision in Powell v. Brady, 496 P.2d 328 (Colo. App. 1972), aff’d 508 P.2d 1254 (Colo. 1973), I find that the ‘‘he’’ referred to is the wrongdoer. Oth- erwise, the rule makes no sense. In Steckler v. United States, 549 F.2d 1372, 1379 (10th Cir. 1977) when considering whether Social Security dis- ability payments are to be regarded as income from a col- lateral source in a suit against a Veterans Administration Hospital brought under the Federal Tort Claims