Countering Attempts to Limit the Admissibility of Full Medical Expenses at Trial Posted on January 6, 2015 by Matt Dolman Read additional articles by Matthew Dolman and Julia McGrath: “Safety” Law Lets Rental Car Companies and Drivers Evade Responsibility Five Ways to Survive a Daubert Challenge against Your Expert Discovering, Presenting and Calculating Your Client’s Intangible Losses Defending Against Intrusive Discovery by the Defense in Florida Personal Injury Cases By Matt A. Dolman and Julia N. McGrath As plaintiffs’ attorneys, we step into the courtroom for one purpose: to recover money damages for our clients. To do so, we must present evidence regarding the nature and extent of our client’s injuries and the cost of the medical care that our client has undergone as a result of someone else’s negligence. Recently, however, we’ve been encountering the defense tactic of filing a motion to exclude from trial any past medical expenses that have been adjusted or written-off by providers. Typically, the defendant will argue that the plaintiff’s past medical expenses should be limited to the amounts that providers were required to accept as payment in full pursuant to their contractual commitments. For instance, if a plaintiff gets treatment at a hospital after a car crash and incurs a $75,000 charge but after adjustments is only left with a balance of $10,000, the defense will argue that the jury should only be allowed to consider the $10,000 balance during trial. Doing so, however, gives the jury an artificial understanding of the nature, severity and extent of the plaintiff’s injuries and the necessary cost of future medical care. Because of this, it’s critical that if you are faced with this type of defense motion before trial, you attack it head-on. A Framework for Recovery of Medical Expenses The argument must be made that the plaintiff must be allowed to present evidence of the full amount of her medical bills at trial for the jury to consider. Florida, like many other states, prevents a plaintiff from receiving a “windfall” by being compensated twice for the same medical bills both by their health insurance company as well as the tortfeasor. In the seminal case of Goble v. Frohman, the Florida Supreme Court held that the plaintiff could ultimately only recover the amount of his medical expenses that had been paid by his HMO carrier, rather than the full value or “fair market value” of the bills. 901 So. 2d 830 (Fla. 2005). Significantly, the court addressed the issue as one of setoff rather than an evidentiary issue of admissibility. The distinction is critical and a defendant’s reliance on the Goble decision to limit the admissibility at trial of the full amount of the plaintiff’s medical bills is misguided. In Goble, the plaintiff was allowed to present evidence of the actual amount of medical bills at trial, which totaled $574,554.31 rather than the $145,970.76 amount that was paid by the HMO carrier. The jury then awarded the full $574,544.21 amount and the defendant appealed that portion of the damages award. The court ruled that the amount of any contractual HMO discounts must be setoff from the verdict amount of the medical bills, essentially reducing the amount of the plaintiff’s medical expense recovery from $574,544.21 to $145,970.76. As stated, however, the issue was one of setoffs and never did the Goble court hold that the plaintiff should be precluded from being able to introduce evidence of the full amount of the medical bills during trial. Thus, the argument must be made that allowing the plaintiff to present evidence of the full amount of her medical bills at trial for the jury to consider and then treating any necessary reduction of this element of damages by appropriate setoff at a post-trial hearing is correct for two reasons. Not only is it consistent with the court’s holding in Goble, but it is also a more logical approach because it allows the plaintiff an opportunity to recover full damages while at the same time preventing any potential duplication of damages to the defendant’s detriment. Demonstrating the Full Extent of the Plaintiff’s Injuries The argument should be made that the total amount of your client’s past medical bills, while perhaps not being recoverable in their entirety, should be introduced at trial as it necessary in order to show the jury the severity and extent of the plaintiff’s injuries. Even if some of the expenses are written off, the documentation nevertheless would list the medical procedures and the treatment that was rendered to the plaintiff. If a client is injured and incurs a $150,000 hospital bill for necessary medical treatment but the jury is only allowed to hear about medical expenses in the amount of $10,000 or some other artificially low number, a jury will understandably have a difficult time reconciling the severity of the injuries the client has sustained with the low cost of treatment. In this example above, the argument can be made that a $10,000 hospital charge simply does not truly illustrate the extensive treatment the plaintiff received as a result of her injuries. Illustrating the Plaintiff’s Pain and Suffering Savvy defendants will employ a strategy whereby such evidence is kept from the jury in order to unfairly reduce the plaintiff’s recoverable damages. Courts have recognized that the amount of a plaintiff’s medical bills is relevant to proving pain and suffering. See e.g., Mascarenas v. Gonzalez, 497 P.2d 751 (N.M. App. 1972), Melaver v. Garis, 138 S. E. 2d 435 (Ga. App. 1964). Defense attorneys know that juries can better understand the true extent of a plaintiff’s condition and more accurately award damages for pain and suffering and other intangible elements if they hear about the full amount of medical expenses necessitated by their clients’ conduct. Savvy defendants therefore seek to employ a strategy whereby such evidence is kept from the jury in order to unfairly reduce the plaintiff’s recoverable damages. Perhaps most important is the need for the jury to hear the full extent of the past medical expenses in order to provide the jury with an accurate basis for determining the cost of the plaintiff’s future medical care. The argument should be made that if the court were to only allow a plaintiff to introduce the reduced amount of bills actually paid, the jury will only receive an artificial understanding of the probable cost of future medical care. It is of course logical that a jury will look to the cost of medical treatment in the past as an indicator of the probable cost of treatment in the future. If a defendant is allowed to keep from the jury the true charges of the medical bills and so the admissible amounts are artificially low due to reductions or write-offs, the jury will understandably be slow to award appropriate future damages. Even more disconcerting is that the plaintiff may not continue to receive the same medical benefits in the future and may not qualify for the same provider discounts if her insurance changes. Future Medical Care Preventing a plaintiff from presenting evidence of the full amount of past medical bills potentially exposes her experts to unfair attacks on their credibility. In addition, an argument should be made that further problems will arise if a defendant is allowed to limit the admissibility of the total medical bills because a low amount of past medical bills will inherently conflict with the projected cost of future medical care that medical experts and life care planners may testify. If expert witnesses offer accurate estimates of future medical costs, these might appear to be at great odds with the amounts that have been paid in the past, thus unnecessarily calling such expert testimony into question. Preventing a plaintiff from presenting evidence of the full amount of past medical bills potentially exposes her experts to unfair attacks on their credibility in projecting future medical costs and may create doubt in the minds of jurors as to the accuracy of the projections. Although in Florida it is clear that a plaintiff cannot receive a “windfall” by being compensated twice for medical expenses, it in no way should follow that a plaintiff should be precluded from admitting into evidence the entirety of the medical bills. Rather, courts should be allowing the full amount of the medical bill into evidence, subject to a post-verdict setoff by the court. This course of action will prevent any duplication of damages while at the same time avoiding the negative implications outlined above that may result in artificially suppressing a plaintiff’s damages. Matt A. Dolman is a member of The National Trial Lawyers top 100 trial lawyers. He and Julia N. McGrath are attorneys practicing at the Dolman Law Group in Clearwater and Bradenton, FL. Matthew is a member of The National Trial Lawyers. He has extensive experience handling first- and third-party insurance claims of all types and, more specifically, claims in the following injury areas: automobile accidents, wrongful death, catastrophic injury, spinal cord injuries, brain injuries, plus violations of Florida’s Consumer Collection Practices Act and asset protection for Florida physicians. Julia practices in the areas of personal injury, trucking and motorcycle accidents, traumatic brain injury, wrongful death and insurance carrier bad faith.