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Hardi v. Mezzanotte


ty-eight hours of the patient's first visit to Dr. Hardi, and that the sooner started, the better the patient does. He testified that it was his opinion that "more likely than not, if appropriate antibiotics had been administered appellee would have avoided [the March 8th] surgery."

Appellants argue that the trial court observed that whether appellee ultimately would have required surgery was an "open question." A closer reading of the court's Memorandum Opinion, however, shows that the trial court found that there was an "open question" about the "possibility" of an elective surgery to address appellee's diverticulitis at some unspecified time in the future. According to Dr. Shapiro's testimony, it was only a possibility that "one might at some time in the future have recommended surgery to prevent further attacks of diverticulitis, but that would be elective surgery." (Emphasis added.)


Appellants contend that the trial court included in its award of damages an allocation of $209,259.82 for medical bills of which $107,560.05 has been written-off by appellee's health care providers, and therefore, never paid by her. He argues that the amounts written-off should not be included as damages. Appellee argues that the collateral source rule prohibits the reduction of damages by the amounts written-off and that the issue is not preserved for appeal.

A. Preservation of the Damages Issue for Appeal

Taking first appellee's procedural challenge, we conclude that the issue is preserved. In support of her position, appellee argues that evidence of the amount of any write-offs was never presented. To address this argument, we review briefly the procedural background of the issue. This appeal is from a bench trial based on the record of the prior jury trial. At the first trial, the parties agreed that the issue concerning medical expense write-offs would be preserved for post-trial consideration. The full amount of the medical expenses were submitted to the jury. It was intended that the jury would separate out the amount awarded in a verdict form. The trial court was to determine as a matter of law whether the write-off amounts could be included in the damages award, and if not, the amount of any write-off was to be determined and deducted from the verdict. Although counsel for Dr. Match made a proffer that the written-off amount was $107,560.05, the parties agreed, with the approval of the court, that the amount of any write-offs would be subject to proof in post-trial proceedings. However, the jury verdict went in favor of Dr. Match, and the jury could not reach a verdict with respect to Dr. Hardi. Therefore, there were no post-trial proceedings on this issue.

By agreement, the second trial was based upon the evidentiary record from the first trial, the parties' briefs, and oral arguments. Prior to the date scheduled for oral argument, appellants submitted proposed findings of fact and conclusions of law which included the argument that appellee was entitled to only medical expenses actually paid ($101,699.77) and not to amounts written-off and never paid ($107,560.05). Appellee filed a response, arguing points of law supporting her position that the full amount was recoverable. The trial court ruled on the issue in its written opinion, concluding that the collateral source rule applied, and therefore, appellee was entitled to any discounts her carrier negotiated. In light of the trial court's ruling, it had no reason to consider the actual amount of the write-offs or to provide Dr. Hardi with the opportunity to present evidence to challenge the amount of recoverable medical expenses, as previously requested. This record shows that the damages ques

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