The recent appellate opinion in Corenbaum v. Lampkin (filed 4/30/13) 2013 DJDAR 5591 answers “no” on all counts. The California Court of Appeal, Second Appellate District, Division Three, determined that only the actual amount paid for past medical care (here, as is typical, the discount rate paid by the medical insurer) is relevant and admissible. The court acknowledges that in ruling this full-billing evidence inadmissible for all of these purposes, it plows new ground, beyond the holding of the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541. There, the state high court took the minority view among U.S. jurisdictions in holding that an injured plaintiff may not recover as past economic damages more than the amount paid by medical insurance–the full amount of medical billing was not recoverable as past medical expense damages; the court “expressed no opinion as to its relevance or admissibility on other issues, such as noneconomic damages or future medical expenses.”( Id., at p. 567.) Allow me to discuss briefly the underpinnings from Howell, how the Corenbaum court navigated its conclusion, and what might lie ahead.
In Howell, the Supreme Court had before it the following: the trial court had admitted evidence of the full medical billings, but granted the defense motion to reduce the medical damage award to reflect the amount actually accepted by medical providers as full payment (per Hanif v. Housing Authority (1988) 200 Cal.App.3d 625); the Court of Appeal reversed, holding the reduction violated the collateral source rule. The Supreme Court held: [W]e merely conclude the negotiated rate differential–the discount medical providers offer the insurer–is not a benefit provided to the plaintiff in compensation for his injuries and therefore does not come within the rule.” (Howell, at p. 566.) Thus the trial court in Howell had properly reduced the past medical award post-verdict.
The Corenbaum court recognized the Howell court did not hold that full amount billed was inadmissible to prove past medical expenses, let alone that it was not at all relevant to prove future medicals and/or pain and suffering. It however theorized that because plaintiff can recover as past special damages no more than the amount incurred for past medical services, the value of those services exceeding what was paid is irrelevant and inadmissible to prove the past specials. As to future medical expenses, it reasoned that the billing rate not paid would be an improper foundation for an expert to use to project future medical expenses. Finally, because pain and suffering is so difficult to assess, any attempt to use the otherwise irrelevant “full amount billed” to gauge pain and suffering would be improper.
There is no question the Corenbaum opinion gives defense counsel a powerful argument in excluding any evidence of the medical billing over and above the payment accepted as full payment by the medical provider. But don’t be surprised if the Supreme Court reviews a case on these points, especially if a conflict develops in other appellate decisions. I have to wonder if the Corenbaum court, by being as expansive as it was, endeavored to clarify the law in this area on points left unanswered by Howell; or perhaps to induce the Supreme Court to clarify. There is no guarantee that the Supreme Court will expand its recoverability limitation into an admissibility limitation as Corenbaum has.
I imagine plaintiffs’ counsel will now be arguing that trial courts should, out of an abundance of caution, still admit the evidence of full billing, subject to a Hanif motion to reduce the past medical award rather than the evidence for all purposes. (Contrast this to pre-Howell when plaintiffs typically argued against these motions.) In this way, the jury will have these larger numbers in mind when they consider future and general damage awards–which plaintiffs like to get before the jury, but can cut either way. In serious injury cases, even if billed amounts per se will not be admitted, I cannot imagine that a properly qualified life-care expert will be forced to only project future expenses based on past insurance payments, as there is so much uncertainty as to ones future medical coverage.
I am afraid that trial judges looking for clarity on these subjects have yet to find it.