A Portrait of a Repo Man as an Imperfect Heuristic

Uspenskaya v. Meline, No. C071647 (D3 Oct. 28, 2015)

This is another med-mal case where the issue is to what degree plaintiff’s as-billed medical expenses—which have no relation to reality, much less what she actually paid—are admissible evidence of her special damages. Plaintiff here was uninsured and she gave her doctors liens on the full billed amounts. So she did, in fact, technically owe them what was billed.

This issue was kind of addressed this in the Bermudez case, decided last summer. There, the court—expounding on the Supreme Court’s 2011 Howell decision—explained that for an uninsured plaintiff, the true measure of her medical specials is the lesser of (1) what she actually paid to satisfy the doctor; and (2) a “reasonable value,” to be determined through a wide-ranging gestalt-type test. Bermudez said that the billed amount is not, on its own, sufficient to the prove reasonableness of the expense. But along with just a little other stuff—like, in particular, an expert’s opinion—it gets plaintiff to the jury.

The trial court here found plaintiff’s billed amounts to be more or less reasonable and let them go to the jury. It’s not clear that plaintiff had any other evidence. So that might not jibe with Bermudez. But these Defendants didn’t raise that issue in their appeal. Instead, their argument was that Plaintiff’s doctors sold her bills to a collection agent—likely for cents on the dollar. Defendants wanted to put that in as evidence of the “reasonable value” of plaintiff’s claim, in lieu of the billed amounts.

The trial court refused. Because the plaintiff still owed the whole amount and the collector could and would invariably seek to recover more from plaintiff than it paid her doctors for the claims, nothing suggested that the sale value of the claims—without more—represented their true “reasonable value.” Defendant needed something to bridge the gap between the sale value and the reasonable one. Otherwise, the sale value would not stand up as an acceptable proxy for reasonable value. So without an expert, the trial court correctly held that whatever evidentiary value the context-less sale numbers had, it was outweighed by the potential that the jury might give them too much credence.

In a way, the case is essentially Bermudez in reverse. The court points out—with considerable examination of the post-Howell case law—that while “reasonable value” can be measured by what the doctor would accept from the plaintiff to settle her bill, what the doctor would take from a repo man to clear bad debt off the books isn’t quite the same thing.

Affirmed.

Negligence vs. Causation

Bermudez v. Ciolek, No. G049510 (D4d3, as modified July 20, 2015)

In a car accident case with two defendants, the jury found both negligent, but that only Defendant #1 one was a substantial factor in causing the plaintiff’s injury. Defendant #1 says that the verdict forms are inconsistent so she deserves a new trial. But they aren’t. The record showed that the jury could have easily found that Defendant #2 was negligent in that he was driving at slightly above the speed limit, but that his speeding wasn’t the cause of the accident.

Defendant #1 also challenges the plaintiffs’ medical damages. As we discussed last month hospital bills generally aren’t good evidence of medical expenses, because the billed amounts have so little bearing on what ultimately gets paid, which is the proper measure of damages. At least that’s the case with insured plaintiffs, because its the leverage of the insurers that gets the providers to reduce the check to the realm of the reasonable. 

But plaintiff here isn’t insured. His bills have never been paid and the hospital still could technically try to collect on them in full. Nonetheless, the court finds that a plaintiff is generally entitled to the lesser of: (1) medical costs paid or incurred; or (2) their reasonable value. In an uninsured case, (2) requires a wide-ranging inquiry, in which the plaintiff must produce some evidence, independent of the bills, showing that the charges were reasonable. The bills aren’t per se inadmissible, but on their own they won’t carry the day. That ultimately wasn’t an issue here, because (other than a small conceded reduction) plaintiff did come forward with some other evidence.

Affirmed, except for amendment of judgment to make a minor reduction of damages.