Fernandez v. Alexander, No. B283949 (D2d8 Jan. 28, 2109)
Medmal case where Plaintiff says her Ortho was negligent by recommending a cast when surgery was called for, which led to some bone callus forming and a deformation of her wrist. Ortho moved for summary judgment on, among other things, causation. Ortho’s expert’s declaration—which Plaintiff didn’t object to—said that the deformation was an equally likely result with either a cast or a surgery. Plaintiff’s expert’s declaration said, without additional detail, that Ortho’s decision “caused Plaintiff’s further deformity of her left wrist.” Ortho objected on lack of foundation. The trial court overruled the objection but granted summary judgment nonetheless.
The Court of Appeal affirms. A reasoned expert declaration can give rise to a disputed fact issue meriting the denial of summary judgment. But a wholly conclusory declaration of opinion has no evidentiary value. So Plaintiff failed to meet her burden.
Affirmed.
Showing posts with label med-mal. Show all posts
Showing posts with label med-mal. Show all posts
Wednesday, January 30, 2019
Wednesday, December 2, 2015
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.
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.
Friday, December 12, 2014
In Limines ...
Scott v. C.R. Bard, Inc., No F066039 (D5 Nov. 19, 2014)
Defendant appeals a plaintiff verdict in a medical device defect case. Defendant moved in limine to keep out evidence regardling certain actions that the FDA took related to its product that occurred after plaintiff was injured. The trial court granted the motion. But then during opening statement, defense counsel made a big deal of the fact the FDA continued to monitor and regulate the product and had taken no action to recall it. The trial court decided that defendant had opened the door and let the post-injury FDA evidence come in.
According to the court of appeal, the trial court didn’t abuse its discretion in doing so. Defendant’s own acts made the evidence relevant. It also was not excludable as a subsequent remedial measure under Evidence Code § 1151 because it did not concern acts by the defendant, to which the subsequent remedial measures rule is limited. Nor did § 352 merit exclusion. Plenty of context regarding the FDA’s actions was admitted, minimizing any risk of prejudice or confusion. And the court did not err by reversing its in limine ruling. In limine rulings are always provisional and subject to reconsiseration during trial.
The court also rejects a cross appeal by plaintiff on an asserted instructional error. The jury found that plaintiff’s doctor—who was not joined as a party—was forty percent at fault. But the jury wasn't actually instructed on the med-mal standard of care. Problem is, plaintiffs never requested such an instruction. Because properly instructing the jury on scope of the doctor’s duty of care was in the interest of plaintiffs, by failing to propose the instruction, plaintiffs invited the error and are estopped from asserting it on appeal.
Affirmed.
Defendant appeals a plaintiff verdict in a medical device defect case. Defendant moved in limine to keep out evidence regardling certain actions that the FDA took related to its product that occurred after plaintiff was injured. The trial court granted the motion. But then during opening statement, defense counsel made a big deal of the fact the FDA continued to monitor and regulate the product and had taken no action to recall it. The trial court decided that defendant had opened the door and let the post-injury FDA evidence come in.
According to the court of appeal, the trial court didn’t abuse its discretion in doing so. Defendant’s own acts made the evidence relevant. It also was not excludable as a subsequent remedial measure under Evidence Code § 1151 because it did not concern acts by the defendant, to which the subsequent remedial measures rule is limited. Nor did § 352 merit exclusion. Plenty of context regarding the FDA’s actions was admitted, minimizing any risk of prejudice or confusion. And the court did not err by reversing its in limine ruling. In limine rulings are always provisional and subject to reconsiseration during trial.
The court also rejects a cross appeal by plaintiff on an asserted instructional error. The jury found that plaintiff’s doctor—who was not joined as a party—was forty percent at fault. But the jury wasn't actually instructed on the med-mal standard of care. Problem is, plaintiffs never requested such an instruction. Because properly instructing the jury on scope of the doctor’s duty of care was in the interest of plaintiffs, by failing to propose the instruction, plaintiffs invited the error and are estopped from asserting it on appeal.
Affirmed.
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