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Arthur v. Catour7/21/2005
result in the parties conducting a trial within a trial on the issue of the reasonableness of a plaintiff's medical expenses. Instead of the current practice wherein stipulations are often made between the parties with respect to the reasonableness of medical bills, the parties will be forced to gather information about the billing practices of every health-care provider in the case. In addition, witnesses familiar with the billing practices of each provider will have to be called to testify with respect to each amount charged, and the reasonableness of that amount for the specific procedure performed, given the provider's experience and reputation and the relevant medical community. This evidentiary process directly contravenes the rationales for holding that a paid bill constitutes prima facie evidence that the bill is reasonable: that a free and voluntary payment of a charge shows the reasonable value of that service, and that it comports with efficient judicial administration by eliminating unnecessary cost and inconvenience to the parties by having to call multiple witnesses. Presenting testimony with respect to billing practices and procedures will no doubt add considerable time and expense for the court and the litigants without advancing the goals of recovery for the plaintiff.
In addition, I note that the majority holds that defendants may challenge plaintiff's proof on cross-examination, or "offer their own evidence pertaining to the reasonableness of the charges." Slip op. at 8. Again, no guidance is offered by the majority to the bench and bar on what may be introduced.
It is my belief that the evidentiary procedure required by the majority will be unworkable. A possible scenario may unfold as follows. Plaintiff, with supporting testimony from witnesses familiar with the billing practices of the provider, will present the amount initially billed by her health-care providers as the reasonable measure of her damages to the jury. Defendant, attempting to show that the billed amount does not reflect the reasonable value of the services provided, will cross-examine plaintiff's witnesses and question whether the amounts charged by the provider are the amounts actually paid by the patient for the services rendered. It is very likely that plaintiff's counsel would immediately object to such a line of questioning on the basis that these questions would ultimately reveal that plaintiff received payment from a collateral source-her insurance company-and therefore violate the collateral source rule. Thus, under such a scenario, defendants may very well have no means of challenging the reasonableness of the billed amount of medical services as the measure of plaintiff's damages.
If, by its opinion, the majority is signaling that such a line of questioning by defendants is acceptable under these facts, then I point out that the majority is compromising the protections of the collateral source rule-the very rule that it is claiming to support. The majority emphasizes-and I agree-that the collateral source rule prevents evidence that a medical bill was paid by insurance. Yet, under the majority's opinion, if evidence is proffered that health-care providers initially charged plaintiff a certain amount and later accepted a reduced amount as payment in full, the jury may be confused and left to create an explanation. It may be that jurors would deduce the presence of insurance. Allowing evidence of both the billed and discounted amounts compromises the collateral source rule, confuses the jury, and potentially prejudices both parties in the case. Each jury will resolve the issue differently, leading to inconsistency wherein similarly situated parties will be treated differently. It is my beli
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