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Onusko v. Kerr8/1/2005
es involved in the accidents, and would have opined that those forces could not have caused the accident victims' injuries. In both cases, the accident victims had pre-existing medical conditions that arguably made them more susceptible to injury than a "normal" person. But the biomechanical experts had not analyzed the impact of those pre-existing medical conditions, and they had no basis on which to assert that their conclusions remained valid when applied to those particular accident victims. As a result, this Court held that, "the trial judge could properly conclude that there was a danger that the jury would be confused or misled into believing that [the accident victims] fell within the "field's" "one-size-fits-all" statistical range."
Here, by contrast, the expert was Kerr's treating physician. From his experience treating patients with permanent injuries, Schwartz apparently has determined that all patients, on average, require the same follow-up long term care. As a result, he uses the same averages to predict his patients' future medical needs. Because he is a medical expert, Schwartz was qualified to reach that conclusion. Thus, there was no error in the trial court's decision to allow his testimony.
Onusko next argues that the trial court misapplied the collateral source rule when it allowed the jury to consider the normal charge of $534 for each physical therapy visit, when Kerr only paid $282 per visit. The lower price was a discount offered by the physical therapist because Kerr paid in cash. The collateral source rule provides that a tortfeasor may not benefit from any money the injured party may receive from sources other than the tortfeasor. "Double recovery by a plaintiff is acceptable so long as the source of such payment is unconnected to the tortfeasor."
We conclude that the Superior Court correctly applied the collateral source rule. The "collateral source" was Brown & Associates (B&A), the physical therapists. B&A billed Kerr $534 per visit. Because Kerr did not have health insurance, however, B&A wrote off a portion of those bills and accepted a cash payment of $282 per visit. The Restatement (Second) of Torts explains the applicable principle and provides an apt illustration:
ยง920A. Effect of Payments Made to Injured Party
(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable. Comment:
c. The rule that collateral benefits are not subtracted from the plaintiff's recovery applies to the following types of benefits:
(3) Gratuities. This applies to cash gratuities and to the rendering of services. Thus the fact that the doctor did not charge for his services or the plaintiff was treated in a veterans hospital does not prevent his recovery for the reasonable value of the services. Kerr was entitled to be compensated for the reasonable value of B&A's services, and the evidence of that value was the billed price of $534 per visit.
Conclusion
Based on the foregoing, the decision of the Superior Court denying Onusko's motion for a new trial is affirmed.
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