The purpose of damages in a civil case is to compensate a plaintiff for actual losses caused by the defendant wrongdoer. Therefore, the law provides that a wrongdoer in a personal injury case is responsible for the payment of the reasonable and necessary medical expenses incurred by the injured party as a result of the wrongdoer’s negligent or intentional acts or failures to act.
Generally speaking, the foundational requirements for the admissibility of medical bills into evidence in a personal injury case are misunderstood by many attorneys. First, the medical bills must be authenticated. The authentication of medical bills can be accomplished by: (1) stipulation; (2) through the testimony of a custodian of records; (3) by an affidavit from the provider’s custodian of records; or (4) by the lack of objection during the disclosure provisions of the applicable rules of civil procedure such as NRCP 16.1.
Requirements to recover for Medical Expenses
To recover for his medical expenses a plaintiff in a personal injury case, such as a car accident or slip and fall injury, must present competent medical testimony that his treatment received in the form of ambulance, hospital, radiology, doctors appointments, physical therapy, chiropractic treatment, medications, nursing services, pain management, surgery, anesthesia and diagnostic tests were necessary as a result of the injuries caused by the defendant’s negligent conduct; and, that the cost or each item of medical expense was reasonable in amount. These foundational requirements are separate and apart from the causation evidentiary requirements which I have covered in a prior blog.
Medical necessity means that the expense was incurred as a result of the injury caused by the defendant. Testimony by an expert witness is required to prove that a medical service was necessary. Additionally, to meet the necessity requirement, the plaintiff may need to present evidence to show that the medical service was standard versus experimental, appropriate and non-fraudulent, so that the bill can be admitted into evidence and the jury or judge can consider the medical bill in determining the defendant’s obligation to pay for this item medical expense.
The terms reasonable and necessary are also utilized in auto insurance policies and health insurance policies to invoke the insurance company’s responsibility to pay for any medical expense and limit payments only to those medical bills that are both reasonable and necessary. Many times these terms are not defined in the policy, or are briefly or unclearly defined.
Medical necessity means that the treatment was made necessary as a result of injuries from the accident, as opposed to treatment related to another medical condition. (The medical necessity requirement comes into issue when the injuries claimed are aggravations of pre-existing conditions such as arthritis, or when a plaintiff has been involved in multiple injury accidents). In some instances the defense will take the position that, in order for medical treatment to be necessary, it must have some benefit in improving the plaintiff’s condition.
However, in some jurisdictions, when a plaintiff gives detailed description of the treatment procedures and clearly relates them to injuries from the subject accident, the medical bills can be properly admitted into evidence upon lay testimony, rather than upon the testimony of a medical expert.
Collateral Source Rule
Some states that have case law that holds that a defendant can receive the benefit of write-offs or adjustments deducted from a provider’s charges pursuant to insurance contracts. Other states have adopted the collateral source rule. The theory behind the collateral source rule is that a wrongdoer should not receive the benefit of payments made by insurance independently procured by the injured party and for which the injured party has paid premiums. There are some states that have adopted the collateral source rule, that still give the defendant the benefit write-offs. The argument for this position is that: (1) The plaintiff receives a windfall if he can receive compensation for write-offs; (2) No collateral source paid the written-off amounts; (3) Write-off amounts are illusory medical expenses and the plaintiff does not actually have to pay them. This position does not take into consideration that the injured plaintiff has to pay for his insurance coverage directly or indirectly (as a benefit of his employment) in order to obtain these write-offs, which is a part of the rationale for the collateral source rule.
A plaintiff also has to provide competent evidence that the cost of each medical expense is reasonable. This means that the medical charge is customary in the medical community and is not inflated. A medical witness who testifies on the issue of reasonableness is not always required to be a doctor, however some form of medical testimony must be presented (Medical billing witness or a nurse who is familiar with customary charges). A doctor can testify as to medical necessity and to the reasonable and customary nature of the medical charges. A defendant is only responsible for reasonable medical expenses, and is not necessarily responsible for the full amount charged by the health care provider for services rendered. Sometimes it is necessary, in cases where the plaintiff does not have a retained medical expert, to call as witnesses every practitioner who rendered the plaintiff medical care. In cases where there is a doctor manages the patient’s care and refers the injured patient for follow-up care with other providers, the referring doctor can testify as to causation of the plaintiff’s injuries as well as the reasonableness and necessity of the medical treatment provided by other practitioners, under circumstances where he is familiar with the charges for the ancillary services provided to the patient. As you can see, this saves many thousands of dollars in expert witness fees.
In order to recover for future medical expenses there must be medical testimony that states to a reasonable degree of medical certainty what future medical expenses will result from the original injury and the reasonable cost of those medical services. In the event that those medical services are projected over a lengthy period, then the cost of the future medical expenses must be reduced to present value.
The foundational requirements for admitting medical bills into evidence are not uniform. Some jurisdictions are more liberal than others and provide for the use of affidavits instead of live expert testimony. The case law on reasonable and necessary medical expenses is not consistent, especially when it comes to collateral source issues. There are very few cases that give a detailed explanation and discussion of the foundational requirements for the admission of medical bills into evidence.
