When Howell V. Hamilton Meats & Provisions, Inc. ("Howell") Meets The Uninsured Plaintiff

By: Grant R. Mullen

In Bermudez v. Ciolek (No. G049510, filed June 22, 2015, Superior Court Case No. 30-2012-00539759), the California Court of Appeal, Fourth Appellate District, Division Three, held that an uninsured plaintiff's (no medical insurance) unpaid medical bills, substantiated by medical expert testimony regarding the reasonableness and necessity of the medical charges, were properly admitted and were sufficient evidence to support an award of damages.

This case arises from a motor vehicle accident when two vehicles collided at a light controlled intersection.  Defendant Ciolek was travelling westbound making a left hand turn.  Defendant Heacox was travelling eastbound.  Ciolek turned and stopped in front of Heacox.  Heacox struck Ciolek's vehicle and veered towards the sidewalk where plaintiff Bermudez was astride his bicycle striking the plaintiff.  Bermudez suffered very serious injuries as a result of the accident.  Bermudez had no medical insurance at the time of the accident.  Bermudez sued both defendants for negligence.

At trial, neither defendant filed a motion in limine to exclude the medical bills and charges.  None of these charges had been paid at the time of trial.  The parties stipulated to the admissibility (not the reasonableness) of plaintiff's summary of past medical bills totaling $445,430.64.  The parties also stipulated to the reasonableness (not just the admissibility) of $15,000.00 in recent medical charges not reflected in Ex. 239.  Accordingly, plaintiff's claim for past medical expenses exceeded $460,000.00 at trial.  Plaintiff's expert medical witnesses testified (without objection) to the fairness and reasonableness of the medical expenses incurred by plaintiff, up to $414,255.59.  Plaintiff's experts found $46,175.41 of the medical charges to be too high, hence not reasonable, so plaintiff argued past medical expenses of $414,255.59 to the jury.  Defendants argued that the amounts were not reasonable and disputed the services as medically necessary.

The jury returned a special verdict against Ciolek only, in the amount of $3,751,969.  This included past medical expenses of $460,431.00, which was $46,175.41 in excess of what plaintiff's experts testified was fair and reasonable.  Ciolek appealed, claiming the verdict was based on insufficient evidence to prove the reasonableness and necessity of the charges and that plaintiff's experts lacked the necessary foundation to show the medical treatment charges were within the "market value" for such medical services.

The Court of Appeal rejected Ciolek's bid for a new trial. But, because $46,175.41 of the judgment was not supported by substantial evidence, the damage award was reduced to $3,706,793.60, with the judgment affirmed as modified and the Court held that (1) the jury verdict finding Heacox negligent but not a "substantial factor" in causing the plaintiff's harm was not inconsistent and was based on substantial evidence; that according to Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4 th 541 ("Howell") and its progeny; (2) unpaid medical costs and expenses are admissible when offered into evidence by an uninsured plaintiff (insured plaintiffs can only seek to admit medical expenses paid by the plaintiff or his insurance carrier for the medical services received or still owing at the time of trial) ( Howell, supra, 52 Cal.4 th at p. 566); and (3) the summary of the medical bills and the plaintiff's medical expert testimony concerning the bills was sufficient evidence to support the jury's finding that the medical bills were the reasonable value of the medical services provided.  The Court rejected Ciolek's argument that a proper foundation had not been set by plaintiff's experts to give the opinions they gave at trial.  Further, the Court found that Ciolek was unable to pursue this argument on appeal because appropriate objections were not made at trial.  No motion in limine was filed and no objections or motions to strike were made on relevance or lack of foundation.

This case raises several important issues:

  1. The insured plaintiff can only recover the amount actually paid by the plaintiff or plaintiff's insurer as medical expenses per Howell. The uninsured plaintiff is not so fettered. He can receive all past medical expenses incurred if the jury finds they were reasonable and necessary. Howell recognized that, all other factors being held equal, the amount recovered by an uninsured plaintiff may be higher than that recovered by an insured plaintiff: "There is, to be sure, an element of fortuity to the compensatory damages the defendant pays under the rule we articulate here. A tortfeasor who injures a member of a managed care organization may pay less in compensation for medical expenses than one who inflicts the same injury on an uninsured person treated at a hospital (assuming the hospital does not offer the person a discount from its chargemaster prices). But, as defendant notes, 'fortuity is a fact in life and litigation'"(Id. at 566).
  2. Unpaid medical expenses, standing alone, cannot serve as a basis for a jury verdict awarding economic damages for medical expenses. The plaintiff must lay a foundation, by expert medical testimony that the charges are reasonable and fall within the market value of such medical services and that the subject medical services were medically necessary.
  3. Counsel must depose the medical experts thoroughly and question the expert's foundation concerning the medical charges for reasonableness and necessity. If the expert's opinions concerning reasonable value of the services does not reflect the actual market rates for those services, motions in limine should be filed and objections timely made at trial to preserve the record. Further, counsel should request the trial court to allow questioning of the expert under Evidence Code Sections 402 and 803 to test the foundational underpinnings of the expert's opinions before they are presented to the jury. The trial court is the "gatekeeper" and it is counsel's job to help the "gatekeeper" carry out this function properly.

Grant R. Mullen is an Associate with Kring & Chung, LLP's Irvine, CA office.  He can be reached at (949) 261-7700 or gmullen@kringandchung.com.

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