As every attorney knows, or should know, the Plaintiff is the master of their complaint or lawsuit. The Plaintiff, not the Defendant or the Defendant’s attorney, decides what damages they are claiming in a case. Often, medical bills have little to no relationship or correlation to pain, suffering, functional loss, or long-term impact. The medical bills can mislead a jury about the extent of the actual harm sustained by the Plaintiff. As a result, Plaintiffs will generally elect not to claim medical bills as damages.
So why then do attorneys for Defendants continue to try and admit either the underlying medical bills, or what was paid to satisfy those medical bills, when the Plaintiff is not claiming past medical bills as damages in the case? This is an issue that the attorneys at our firm routinely confront in the personal injury cases we handle for clients.
If a plaintiff elects not to pursue a claim for past medical bills arising from the underlying incident, then those medical bills and any resulting payment by an insurance company are not admissible. Put differently, because the Plaintiff is not asking the jury to award them damages for past medical bills incurred, any evidence of past medical bills incurred would not make any fact of consequence more or less probable. Thus, such evidence is completely irrelevant and should not be put before the jury in this case. See ALA. R. EVID. 401, 402 & 403.
In the case of Marsh v. Green, the Alabama Supreme Court revived a previously struck down Alabama code section, specifically Ala. Code § 12-21-45. Marsh v. Green, 782 So. 2d 223 (Ala. 2000). Prior to the decision in Marsh, the well-settled collateral source rule precluded the admission of collateral source payments to satisfy medical bills. American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala. 1996).
Ala. Code § 12-21-45 states in pertinent part:
(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.
How would the admissibility of this evidence by misleading and confusing? Imagine a scenario where the Plaintiff is not claiming medical bills as an element of damage (i.e. not asking the jury to award medical bills as part of the verdict). Yet, the attorney for the Defendant is allowed to introduce and discuss the medical bills. The jury would be left wondering why the bills are being introduced or talked about if the Plaintiff is not seeking the recovery of said bills as damages. Further, the jury may attach some specious or irrelevant meaning to the medical bills. By way of analogy, if the Plaintiff is not claiming lost wages as an element of damage, should the Defendant be allowed to introduce the Plaintiff’s wages? Such evidence certainly should not be admissible as that evidence would not tend to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ALA. R. EVID. 401. Put differently, if lost wages are not being claimed, then the existence of the Plaintiff receiving wages is of no consequence. The same should hold true for the existence of medical bills.
Moreover, the desire to admit the Plaintiff’s medical bills, despite the Plaintiff not even claiming same as damages, is often disingenuous because what the Defense attorney ultimately desires to do is to tell the jury that the very same medical bills were satisfied by a health insurance company at a significantly reduced rate. Typically, this tactic is utilized in an effort to try and keep the overall verdict amount for the Plaintiff down. We call it trying to put an anchor on the verdict amount by introducing otherwise inadmissible evidence.
What if the Defendant is willing to simply admit the retail medical bills and forego the admission of the actual payment by a third-party health insurance company? A trial court should still deem the evidence inadmissible if the Plaintiff is not claiming medical bills as an element of damage as there is no logical or reasonable basis for admitting the medical bills. While some appellate courts may have held that it is not an abuse of discretion to admit such evidence under certain circumstances, these holdings are hardly an endorsement on admissibility of medical bills. Further, the logic behind the admissibility is very strained. Other courts have concluded that:
It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries. A very painful injury may be untreatable, or, on the other hand, may require simpler and less costly treatment than a less painful one. The same disparity in treatment may exist between different but equally painful injuries. Second, given identical injuries, the method or extent of treatment sought by the patient or prescribed by the physician may vary from patient to patient and from physician to physician. Third, even where treatment and injury are identical, the reasonable value of that treatment may vary considerably depending upon the medical facility and community in which care is provided and the rates of physicians and other health care personnel involved. Finally, even given identical injuries, treatment and cost, the fact remains that pain is subjective and varies from individual to individual.
Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983).
Additionally, any argument of a nexus between medical bills and non-economic damages, such as pain and suffering, would likely be the subject of expert testimony. Typically, there is no such expert testimony from a medical provider and/or someone qualified to explain how retail medical bills are probative of the claim of pain and suffering and emotional distress. Surely, a determination as to any connection between medical bills and pain and suffering would not be within the purview of lay people alone to decide.
Finally, it is important for all attorneys to understand that with the exception of medical bills and the application of Ala. Code § 12-21-45, the collateral source rule is alive and well in Alabama. American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala/ 1996). For instance, indemnity payments by a workers’ compensation carrier for a worker’s time off from work following a work-related injury would not be admissible in a third-party case. Likewise, short-term or long-term disability payments for a person’s time off from work and life insurance payments in a wrongful death case are not admissible.
Plaintiff’s attorneys would be well advised to exclude evidence of medical bills in circumstances where the Plaintiff is not claiming them as an element of damages. The admissibility or inadmissibility of this evidence can have a meaningful impact on the outcome of any personal injury case.