Treating Physician Testimony May Establish Reasonable Value of Medical Bills

by Low, Ball & Lynch
Contact

Joaquin Ochoa, et al.  v. Jesus Felipe Dorado, et al.

Court of Appeal, Second Appellate District, Division Three (Shasta) (July 22, 2014)

Joaquin Ochoa and Imelda Moreno (“Plaintiffs”) were traveling in a big-rig tractor when they were rear-ended by Jesus Felipe Dorado, a tractor-trailer driver for Trimac Transportation Services Western, Inc. (“Defendants”).  Defendants conceded liability and a jury awarded damages to Plaintiffs including past medical expenses.

Defendants filed a motion in limine to exclude testimony by plaintiffs’ non-retained treating physicians regarding any expert opinion that was not formed for the purpose of treatment (i.e. any opinion formed for the purpose of litigation).  Defendants sought to exclude non-retained treating physician opinion regarding the reasonable value of medical services.  Defendants also filed a motion in limine to exclude evidence of the reasonable amount of plaintiffs’ medical expenses because plaintiffs had failed to respond to discovery and to designate an expert for trial.

The trial court granted defendants’ motions in limine, ruling that plaintiffs’ treating physicians were not retained experts and could not testify regarding whether their fees represented the reasonable value of services provided.  Rather, the treating physicians’ testimony was limited to their medical services provided, medical diagnoses and fees.  The trial court reasoned that trial testimony regarding the reasonable value of the services provided was “above and beyond” the treating physician’s role.

After a jury verdict for plaintiffs, awarding damages including past medical bills, both sides appealed.  The appellate court rejected each of the appeals because they were premature, then remanded the case to the trial court for further proceedings. The appellate court provided an advisory opinion to guide the trial court.

Plaintiffs contended that their unpaid medical bills were evidence of the reasonableness of their past medical expenses and that the trial court erred by excluding the testimony of their treating physicians on the reasonable value of the medical services provided.  Defendants contended that the trial court found an absence of evidence to support the verdict as to damages, and that they were entitled to a JNOV rather than a new trial. The Court of Appeal held:  (1) that unpaid medical bills are not evidence of the reasonable value of the services provided; and (2) a non-retained treating physician may testify at trial regarding the reasonable value of the medical services provided without being disclosed as a retained expert.

The Court revisited the California Supreme Court holding in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, limiting a plaintiff’s recovery of damages for past medical expenses to the lesser of:  (1) the amount paid or incurred for past medical services, and (2) the reasonable value of the services.  The Court reaffirmed its own prior decision in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, which held that the full amount billed for a plaintiff’s medical care is not relevant and is inadmissible on the issue of damages for past or future medical expenses.  Even though the patient was uninsured, the unpaid hospital bill reflecting the provider’s standard charges was insufficient evidence of the reasonable value of the services. The Ochoa Court pointedly declined to follow a number of cases that allowed unpaid medical bills as evidence of the reasonable value including:  Malinson v. Black (1948) 83 Cal.App.2d 375; Guerra v. Balestrieri (1954) 127 Cal.App.2d 511; and Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288.

Then the Ochoa Court ruled that a non-retained treating physician who is “qualified” may testify regarding the reasonable value of services provided during the course of the physician-patient relationship. A physician who has gained “special knowledge” regarding the market value of medical services via his or her own practice–as opposed to litigation research–may testify as to the reasonable value.  However, an expert declaration and disclosure is required when the treating physician is a retained expert who is specifically hired by a plaintiff to opine regarding the reasonable value of medical services “in anticipation of litigation.”

COMMENT

The Court followed Howell and Corenbaum in holding that the full amount billed is irrelevant and inadmissible to prove the reasonable value of past medical damages. This rule applies in situations where the plaintiff is uninsured as well as when the medical services provider has contracted to accept less than the full amount billed.  However, the Court held that a plaintiff may rely on the testimony of a treating physician to establish reasonable value.

The Court did not consider the source of the treating physician’s knowledge—which raises the question of how a treating physician would know the “reasonable value” of his or her services.  Since the same service provided in different locales could carry a different price, a treating physician asked to opine on the reasonable value of his services would typically look to his billing department for the billed amount.  But the Ochoa Court would not allow him to use this figure, because it is inadmissible.  Only a retained expert can rely on inadmissible hearsay. The court has created a conundrum without solving it.

For a copy of the complete decision,
see:  http://www.courts.ca.gov/opinions/documents/B240595.PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Low, Ball & Lynch | Attorney Advertising

Written by:

Low, Ball & Lynch
Contact
more
less

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.