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Shpigel v. White12/10/1999
76). Consequently, we must examine the classes of records proffered by the plaintiffs from the standpoint of whether the records themselves established admissibility.
A. Medical Bills
The plaintiffs' purpose in offering the medical bills in evidence was to prove special damages. In order for the amount paid or incurred for medical care to be admissible as evidence of special damages, there ordinarily must be evidence that the amounts are fair and reasonable.
"Evidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered or justify recovery therefor." Kujawa v. Baltimore Transit Co., 224 Md. 195, 208, 167 A.2d 96, 102 (1961). In Kujawa we affirmed a trial court's ruling that the amount of medical bills incurred by a mother and her son could not be established through the testimony of the mother. We indicated, however, that the personal appearance of the billing doctors was not required. The only requirement was that the plaintiffs should "'have evidence'" that the charges were reasonable. Id. (quoting trial court's ruling). See also Brooks v. Fairman, 253 Md. 471, 476, 252 A.2d 865, 868 (1968) (absent evidence of the reasonableness of charges for medical services, an error affecting the verdict in that action, case remanded for a new trial); Metropolitan Auto Sales Corp. v. Koneski, 252 Md. 145, 154, 249 A.2d 141, 146 (1969) (absent evidence, inter alia, of the reasonableness of hospital charges, judgment reduced and, as reduced, affirmed); In re. Gloria T., 73 Md. App. 28, 33-34, 532 A.2d 1095, 1097-98 (1987) (medical bills are not admissible to support restitution award in juvenile proceeding without some evidence of reasonableness), cert. denied, 311 Md. 718, 537 A.2d 272 (1988); Thomas v. Owens, 28 Md. App. 442, 445, 346 A.2d 662, 664 (1975) (" efore a medical bill can be admitted to prove the reasonableness of the amount charged, there must be other evidence that the charge set forth in the bill was reasonable.").
Professor McLain has pointed out that, although authentication as a business record can be accomplished under Rule 5-902(a)(11) without a live witness, "a live witness still will be needed if ... the business record does not establish all the facts needed to be proved, such as that the proved medical bills were 'reasonable and customary.'" L. McLain, Self-Authentication of Certified Copies of Business Records, 24 U. Balt. L. Rev. 27, 75 (1994). See also P.W. Grimm, New Rule Covers Authentication of Business Records, Vol. 10, No. 2, The Maryland Litigator 1, 5 (Dec. 1994) ("The mere fact that these records are admitted into evidence without a testimonial sponsor would not establish that the charges for the services reflected in the bills are reasonable and customary, nor that the treatment itself was appropriate.").
Inclusion in the affidavits of certain of the custodians of the records proffered in the instant matter of statements that the charges were reasonable did not make the medical bills admissible. On that aspect of admissibility required by our cases, the fact to be proved is the reasonableness of the bill, but the witness to that fact is not present and subject to cross-examination. Accordingly, the circuit court did not err in excluding from its consideration on summary judgment the medical bills proffered by the plaintiffs.
B. The Physicians' Records
In the P.A.'s consultation note dictated on May 29, 1996, based on an examination of May 22, the "clinical impression" as of the date of that examination was that Shpigel "sustained acute musculoligamentous strain injury of the supporting structures of the cervical spine." The "m
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