Plaintiff Entitled to Show He Paid His Own Medical Bills

Wednesday, April 27, 2005

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Plaintiff Entitled to Show He Paid His Own Medical Bills—C.A.

Evidence Admissible to Rebut Inference Expenses Were Unnecesary, Justices Say

By KENNETH OFGANG, Staff Writer/Appellate Courts

A Yuba Superior Court judge committed a prejudicial abuse of discretion by excluding evidence that a personal injury plaintiff paid his own medical bills, the Third District Court of Appeal ruled yesterday.

The panel granted a new trial to James Smalley, whose attorneys had offered the evidence in order to rebut the inference that the plaintiff was malingering and running up unnecessary expenses.

Smalley sued truck driver Orville Baty and Baty’s employer in August 2003, claiming injuries resulting from having been rear-ended by Baty several months earlier. The case was tried in June of lat year.

Judge Kathleen O’Connor granted the defendants’ motion in limine, apparently agreeing that the evidence was “not relevant” and might cause the jury to “attach undue significance to the fact that the Plaintiff paid rather than his medical insurance.”

Smalley testified that he was in constant paid and required continuing physical therapy. As a result of the accident, he said, he had to quit the used car business in which he was a partner and return to a less demanding auto sales job in Yuba City.

The chronic pain, he testified, forced him to give up a number of activities, including jogging, softball, basketball, baseball, skiing, camping, and horseback riding.

Defense Expert

The plaintiff presented medical bills totaling nearly $30,000, most of which were paid by the plaintiff out of his own pocket. The defense conceded liability and presented only one witness, a medical expert who opined that Smalley only suffered minor soft tissue injury that should have healed within a couple of months.

Asked on cross-examination whether Smalley was malingering, the doctor said the term was “kind of pejorative,” but that it would “be naive not to say there isn’t self-interest involved in these proceedings.”

The jury awarded $20,500, including $15,000 for medical expenses and other past economic losses. The plaintiff’s motion for new trial was denied.

Justice Richard Sims III, writing for the Court of Appeal, said the evidence that Smalley paid the medical bills out of his own pocket “was manifestly relevant” to show that he received the medical services claimed. “There is no more acceptable form of proof that medical bills were paid than evidence that plaintiff, in fact, paid them.”

Collateral Source Rule

The collateral source rule, which was cited by the defense and the trial judge, has no application to this situation, Sims explained. The rule bars evidence that the plaintiff’s medical bills were paid by insurance, so that the plaintiff will not be penalized for having obtained insurance, considerations that are irrelevant when the plaintiff pays his own bills, Sims said.

O’Connor, the justice wrote, “stood the collateral source rule on its head.”

The evidence, Sims went on to say, should have been admitted to show the reasonableness of the expenses. “A reasonable person is unlikely to run up thousands of dollars in medical bills and pay them out of pocket on the mere gamble that he might someday obtain reimbursement from a tortfeasor,” the justice wrote.

Nor, he said, could the error be considered harmless, given the fact that the jury awarded less in medical expenses than the plaintiff would have testified he paid from his own pocket. The implication of the verdict, Sims said, was that the jury believed Smalley to be a malingerer, an inference that evidence he paid his own medical bills would have tended to rebut.

The case is Smalley v. Baty, C047658.