Treating Physician Testimony May Establish Reasonable Value of Medical Bills

by Low, Ball & Lynch

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.”


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,

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.

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