Here are some tips for proving a plaintiff's medical expenses:
1. Try to get a stipulation with opposing counsel about medical bills. Often this will alleviate many of the problems of proof; even so, be sure to have a back-up plan just in case.
2. A good time to discuss stipulations is just before the deposition of a treater; a stipulation will shorten the deposition by obviating the need for testimony about usual and customary charges and the like. Be sure to put these stipulations on the record.
3. Since payment of medical bills establishes the reasonableness element, proof problems can often be simplified by having the plaintiff pay any outstanding medical bills, unless there are strategic or financial reasons not to do this.
4. At trial, you should prepare a summary exhibit of all the medical bills, which can be admitted into evidence after you've established proof of the underlying medical expenses that are totalled up in the summary exhibit.
5. It's often wise to present some of the plaintiff's testimony about medical expenses outside the hearing of the jury, especially if you think he or she may be unable to remember not to mention insurance.
Today we'll take a look at the use of Requests for Admissions to establish the foundational elements needed to prove past medical expenses. (These foundational elements were discussed in the last post.) My form Request for Admissions dealing with medical bills looks like this:
1. Concerning Exhibit 1, which is attached, please admit:
(a) The genuineness and authenticity of the exhibit;
(b) The exhibit is a copy of a medical bill for services rendered to plaintiff, on the dates indicated on the exhibit, by [name of provider];
(c) The total charges for the services listed on the bill are [amount];
(d) The services reflected in the bill were necessary for the diagnosis or treatment of Plaintiff’s [condition at issue in the lawsuit];
(e) The services reflected in the bill were necessary for the diagnosis and treatment of injuries sustained by Plaintiff in the [type of accident] that is the subject of this case;
(f) The amount of the bill is reasonable; and
(g) The exhibit is a true, correct and complete copy of a genuine original.
In many cases, the defendant will admit all but (e), which will require expert testimony about causation. Even if the defendant fails to admit some of the other sub-parts, you will know when you receive the defendant's answers exactly what issues will be disputed at trial.
How do you get evidence of past medical expenses into evidence? Today I'll examine the foundation you'll need to establish for admission; tomorrow, I'll take a look at the use of requests for admissions to lay this foundation; and on Wednesday, I'll discuss some pointers and tips from my own practice. This discussion is meant to be a general overview without case citations; should you have a burning desire for case citations, please e-mail me and I'll try to help.
To get medical bills into evidence, you'll need to prove: (a) plaintiff has paid or become liable to pay the medical bills; (b) plaintiff necessarily incurred the medical expenses because of injuries resulting from the defendant's negligence; and (c) the charges were reasonable for services of that nature.
The first element can be established by the plaintiff; the second generally requires expert testimony by the treater or your expert; the third is established by testimony by the plaintiff that the bills were paid. If a bill is unpaid, you will need to introduce evidence by a person having knowledge of the services rendered and the usual and customary charges for the services. This testimony can come from the treater, or from a record custodian or credit manager from the medical provider, who can testify about the provider's usual and customary charges.