CUEVAS
PROVIDES AN EXPLANATION OF BENEFITS
By: Mirth I. White, Esq.
Plaintiffs often are lead to believe that, at trial, they can recover all amounts of their doctor bills for their medical treatment. We all know that can be a lot of money! However, in 2011, the California Supreme Court held in
Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 that plaintiff could not introduce the amount billed by a medical provider as evidence if: 1) plaintiff was insured, and 2) the treating physicians accepted less than the billed amount based on contractual reductions by the insurance company. This led to some dissatisfaction for the plaintiffs. For most people, medical bill reductions are a relief. However, to a plaintiff, they became a disappointment.
The plaintiffs’ bar reduced the pain of the
Howell reductions by introducing evidence that plaintiff not only suffered a past injury, but was likely to need future medical treatment for the same injury. Counsel would then introduce the full amount of plaintiff’s likely future medical bills. For example, if a physician accepted $10,000 in payment from an insurer for a $50,000 shoulder surgery, only evidence of the $10,000 would be admissible at trial. However, counsel could then present expert testimony that his client was likely to require a second shoulder surgery in the future, and present evidence of plaintiff’s prior medical bill to show that the full cost of such treatment was $50,000.
This was not particularly fair. The defense could argue that the $50,000 cost was not reasonable, but could not argue that the future bills would be subject to insurance reductions.
Howell did not extend to future medical expenses both because evidentiary rules prevented the jury from learning whether or not plaintiff was insured, and because there was no guarantee that a plaintiff would have medical insurance in the future.
The courts first addressed this issue in
Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, and held that the full amount billed for plaintiff’s prior medical care (i.e. the $50,000 above) was not relevant to the cost of damages for future medical care and was inadmissible at trial. That was a great first step, however, the defense was still unable to discuss insurance benefits to refute plaintiff’s evidence of the reasonable costs of future treatment.
Now, the final loophole is closing. In a victory for the defense, the California Court of Appeal, First Appellate District held that the Patient Protection and Affordable Health Care Act (“ACA” also known as Obamacare) has eliminated any uncertainty about whether a plaintiff will have insurance in the future. The
Cuevas court held that defendants may now introduce expert testimony at trial regarding what plaintiff is likely to pay for future medical expenses based on rates that might be negotiated by an ACA insurance provider. (
Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163
, 180).
In
Cuevas, the patient, through his
guardian ad litem, brought an action for medical malpractice against Contra Costa County and others, based on injuries he sustained
in utero. During trial, defendant attempted to introduce evidence of a life care plan which included the cost of future medical treatment based on specific insurance plans which could be purchased through the ACA. (
Cueva, supra, at 167-168). Plaintiff argued that the ACA was going to be repealed by the new administration so that any anticipated insurance benefits were too uncertain to be introduced as evidence at trial. The trial court agreed (
Id. at 169). Plaintiff obtained a $9,577,000 verdict at trial and the County appealed.
The Court of Appeal found that the trial court’s decision to exclude evidence of future insurance benefits guaranteed by the ACA was an abuse of discretion since defendant had presented expert testimony that the ACA was “reasonably certain to continue well into the future and that plaintiff will be able to acquire comprehensive health insurance notwithstanding his disability.” (
Id, at 180-181). In other words, the ACA was in great health! The court denied plaintiff’s claims, and agreed with the County’s argument that evidence of the policies available to plaintiff through the ACA were relevant because “negotiated payments amounts and the ACA’s guaranteed issue and renewal requirements are highly probative . . . in determining the reasonable value of plaintiff’s medical services.” (Id. at 178).
As long as the ACA can withstand another repeal attempt,
Cuevas allows alternative evidence to be presented by the defense to show the jury how available policies can reduce the costs of future medical care. The ACA evidence is not conclusive, but can be presented to the jury so the fact finder can “evaluate[ ] the probabilities based on the evidence presented and arrive at a reasonable result. “ (
Cuevas at 182). To take advantage of this holding, the defense must be prepared to retain experts who can testify as to the availability of policies under the ACA, and the market rates for healthcare under such policies. This evidence will be too costly to pursue in all cases. However, for cases with large damages claims,
Cuevas creates an opportunity to avoid a windfall to plaintiff.
