Wednesday, May 1, 2013

Damages- Post Howell v. Hamilton Meats

As we've previously noted on this blog (or "blawg" as it were), the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 567, 129 Cal.Rptr.3d 325, 344 ("Howell"), held that an injured plaintiff, whose medical expenses are paid by private insurance, can only recover as damages the amount of the medical bills actually paid by that medical carrier, not the amount initially billed by the medical provider(s).  The Supreme Court held that a plaintiff's pecuniary loss is limited to the amount paid or incurred for past medical services, so the plaintiff cannot recover damages in excess of that amount. [Id. at p. 555.]  In so doing, the Court in Howell approved the general rule from Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635, 246 Cal. Rptr. 192 (“Hanif”) and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”), in this regard. [Howell, supra, at pp. 553–555.]  

The issue, however, of what evidence is properly provided to a jury is complicated by the fact that evidence of insurance is inadmissible.  Notwithstanding the "amount paid" argument, the Court in Howell appeared to leave open the question whether the trial courts should permit evidence of amounts initially billed.  ("We express no opinion as to its relevance or admissibility on other issues, such as noneconomic damages or future medical expenses. The issue is not presented here because defendant, in this court, conceded it was proper for the jury to hear evidence of plaintiff’s full medical bills." [Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 567, 129 Cal.Rptr.3d 325, 344]) 


Thus, the Court in Howell appeared to uphold (or at least not reject) the rulings of lower appellate courts that held that it was proper for trial courts to simply admit the "full value" medical bills and then reduce the amount of a plaintiff's recovery by post-trial motion, as recognized in Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 and Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157.


That "admit but then cut" approach appears to have been expressly rejected in a case from the 2nd District Court of Appeal in  Corenbaum v. Lampkin (2013) --- Cal.Rptr.3d ----, 2013 WL 1801996 ("Corenbaum") (The link to a PDF version of the decision is here- http://www.courts.ca.gov/opinions/documents/B236227.PDF)  There, the Appellate Court expressly rejected the idea that the amounts billed were at least admissible to show the "reasonable value" of the medical costs, and specifically held:

Although Howell, supra, 52 Cal.4th 541, did not directly so hold, we are persuaded by the carefully considered reasoning in Howell, and therefore do hold that evidence of the full amount billed for a plaintiff's medical care is not relevant to the determination of a plaintiff's damages for past medical expenses, and therefore is inadmissible for that purpose if the plaintiff's medical providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided.
***  
We therefore conclude that evidence of the full amount billed for plaintiffs' medical care was not admissible for the purpose of determining plaintiffs' damages for their past medical expenses. (Emphasis added)
The Court in Corenbaum further held that the Howell reasoning extends to bar experts from relying upon the billed (but not paid) amounts of past medical expenses when proffering opinions regarding the amount of future medical expenses. On this issue, the Corenbaum court stated:
 Our conclusion that the full amount billed by medical providers for past medical services is not relevant to the value of the services provided also has implications for expert opinion testimony that may be offered on remand as to the reasonable value of medical services to be provided in the future. Because the full amount billed for past medical services provided to plaintiffs is not relevant to the value of those services, we believe that the full amount billed for those past medical services can provide no reasonable basis for an expert opinion on the value of future medical services. Evidence of the full amount billed for past medical services provided to plaintiffs therefore cannot support an expert opinion on the reasonable value of future medical services. (Emphasis added)

Further, the Corenbaum court held that billed amounts for past medical expenses are not relevant in determining future medical expenses, or for any other purpose


For example, Corenbaum further held that evidence of billed (but not paid) past medical expenses is not relevant in determining the amount of non-economic damage suffered by the plaintiff.  While Howell left the door cracked open on this issue, Corenbaum seems to close it by concluding (as did the Howell court) that the billed amount of past medical expenses "is not an accurate measure of the value of medical services" and therefore not relevant to determining non-economic damages.  Arguments advanced by Consumer Attorneys that the billed amount of expenses is relevant for the jury to consider in assessing the full harm (non-economic damages) suffered by the plaintiffs were rejected, with the Corenbaum court providing: 

As we have explained, the full amount billed for past medical services is not relevant to a determination of the damages for either past or future medical services if the medical providers had agreed to accept a lesser amount as full payment. We conclude that evidence of the full amount billed is not admissible for the purpose of providing plaintiff's counsel an argumentative construct to assist a jury in its difficult task of determining the amount of noneconomic damages and is inadmissible for the purpose of proving noneconomic damages.

This decision is clearly another clear victory for the personal injury defense bar, on the issue of recoverable damages in injury cases.  However, despite the restrictions imposed on the admissibility of evidence related to "amounts billed," it would appear that experts can still offer opinions on the "reasonable" costs of future medical care, provided that such opinuions are not based on amounts previously billed by a plaintiff's prior medical providers.   





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