On July 22, 2014, the California Court of Appeal, Second Appellate District issued a decision in Ochoa v. Dorado, 2014 WL 3589887, concerning the admissibility of evidence of unpaid medical expenses provided on a lien. The Court concluded that (1) unpaid medical bills provided on a lien are not evidence of the reasonable value of the services provided; and (2) no expert witness declaration is required for a treating physician to offer an opinion regarding the reasonable value of medical services provided, so long as the opinion is based on facts acquired independently of the litigation and the expert is qualified to offer the opinion.
Ochoa arose out of a rear-end automobile accident in which plaintiffs Joaquin Ochoa and Imelda Moreno suffered personal injuries. Mr. Ochoa was operating a big-rig tractor without a trailer, and Ms. Moreno was his passenger, when it was struck from behind by another tractor-trailer being driven by Jesus Felipe Dorado, a driver for Trimac Transportation Services Western, Inc. Plaintiffs sued Dorado and Trimac for negligence, and sought damages for their personal injuries. Plaintiffs sought medical treatment that was provided on a lien basis from, among others, Michael Shiffman, M.D. Dr. Shiffman was designated by plaintiffs as a non-retained expert.
Defendants filed motions in limine (1) to exclude testimony by plaintiffs’ non-retained medical experts on the reasonable value of medical services provided, because they were not provided for in plaintiffs’ expert designation; and (2) to exclude evidence of the reasonable amount of plaintiffs’ medical expenses, arguing that the liens alone were not evidence of reasonable value and there was no expert designated to testify on the issue. The trial court granted the motions in limine in part. The court allowed evidence of the liens but precluded Dr. Shiffman and all non-retained experts from testifying as to whether their fees represented the reasonable value of the services provided.
The case went to trial and the jury found for plaintiffs, awarding past and future economic, and non-economic damages. Defendants challenged the verdict, arguing that there was no basis for a finding of past medical expenses because the lien was not evidence of the reasonable value. Although the Court found defendants’ post-trial motions premature, it considered the admissibility of plaintiffs’ unpaid medical bills, and of expert testimony regarding the reasonable value of medical services provided.
The Court provides a detailed analysis affirming the Howell line of decisions, including Corenbaum, regarding the admissibility of evidence of unpaid medical expenses. The Court then proceeds to take Howell one step further by concluding even where a lesser amount has not been accepted by the provider as full payment for the services, and a lien for the full amount billed is still outstanding, the full amount billed is not relevant to the reasonable value of the services provided. The court asserted “We conclude that an unpaid medical bill is not an accurate measure of the reasonable value of the services provided.” This is a victory for defendants in cases involving plaintiffs who are uninsured, or who do not use their existing medical insurance for treatment sought after an alleged personal injury accident.
The court further concluded a non-retained treating physician may testify regarding the reasonable value of medical services provided on a lien without a corresponding expert designation, so long as such testimony is based on facts acquired in the physician-patient relationship or independently of the litigation. The court reasoned that an expert witness declaration in an expert designation is only required where the expert’s opinion was formed in anticipation of the litigation or in preparation for trial pursuant to California Code of Civil Procedure section 2034.210, subd. (b).
The Court’s conclusion that non-retained medical experts can offer an opinion regarding the reasonable value of services creates new and potentially expensive dilemmas for defendants to complete non-expert and expert discovery, and prepare for trial.
Lessons for the Defense: (1) Ensure that you designate your medical experts to offer opinions regarding the reasonable value of medical services provided to the plaintiff ; (2) defense counsel should consider deposing all non-retained experts before trial, or at least those with large bills, regarding whether they intend to offer any opinions regarding the reasonable value of services provided, and their qualifications to offer such opinions; (3) subpoenas to treating physicians, and deposition notices to non-retained and retained experts, should request production of documents evidencing what the providers typically charge, and accept as final payment, for the medical services provided in the case. This includes contracts between the provider and insurance carriers, as well as contracts with Medi-Cal and Medicare; and (4) defendants should file a motion in limine citing to Ochoa in their personal injury cases involving unpaid medical liens.
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