A. Tangible Losses Available for Personal Injury

LibrarySouth Carolina Damages (SCBar) (2009 Ed.)

A. Tangible Losses Available for Personal Injury

1. Medical Expenses

a. Recovery of Past Medical Expenses1

(1) Recovery by the Injured Party

A plaintiff can recover the reasonable value for medical services as determined by the trier of fact. The general rule is that a personal injury plaintiff may recover for the "necessary and reasonable expense caused by the injury such as amounts necessarily paid for medicine, medical attendance, hospital expense and care and nursing."2 Before the plaintiff is allowed any recovery for the value of medical services, however, he must prove that the services were reasonably necessary and caused by the defendant's negligence.3

(2) Establishing the Value of Medical Services

After proving causation, the plaintiff is entitled to recover the reasonable value of the medical services, not necessarily the amount paid.4 The actual amount paid is not dispositive on the issue of the reasonable value of the medical services. It also does not limit the trier of fact in making such a determination.5

The trier of fact must look at a variety of factors in determining the reasonable value of the medical services, including the amount paid for those services.6 "Among those factors to be considered by the jury are the amount billed to the plaintiff, and the relative market value of those services."7 The plaintiff, therefore, can present evidence on the reasonable value of the services received, even though the plaintiff may have paid a different amount.

Haselden involved a medical malpractice claim resulting in the death of a Medicaid recipient. The trial court allowed introduction of $77,905.21 in medical expenses the defendant physician billed to the decedent. The defendant physician argued that only the $24,109.04 actually paid by Medicaid should be admitted into evidence. The jury awarded the decedent's beneficiaries $1,082,103.71 and awarded $1,000,000.00 to her estate. The defendant physician appealed, and the court of appeals affirmed.8

The supreme court granted the defendant physician's petition for a writ of certiorari and affirmed. The defendant physician claimed the trial court should have limited decedent's recovery for medical expenses to those amounts actually paid by Medicaid. The court disagreed, finding both the amount of the Medicaid payment and the amount billed by the defendant physician admissible to establish the amount of this portion of decedent's damages.

First, the supreme court agreed with the decedent that the collateral source rule applies to Medicaid payments, since Medicaid is a "wholly independent" collateral source. Thus, decedent's damages were not limited by amounts paid by Medicaid.

The court next addressed the primary issue of determining the proper measure of the "reasonable value" of medical services paid by Medicaid. The court began its analysis by noting that a plaintiff in a personal injury action seeking damages for the cost of medical services provided to him as a result of a tortfeasor's wrongdoing is entitled to recover the "reasonable value" of those medical services, not necessarily the amount paid. The court stated that although the amount paid may be relevant in determining the reasonable value of those services, it is not the exclusive proof. Instead, the trier of fact must look to a variety of other factors in making such a finding. Among those factors are the amount billed to the plaintiff and the relative market value of those services. Thus, the amount actually paid for medical services does not alone determine the reasonable value of those medical services, nor does it limit the trier of fact in making such a determination.

The court rejected the position of some other courts that allowing a plaintiff to claim the billed amount, as opposed to the paid amount, results in a windfall to the plaintiff.

Rather, the court found that limiting a plaintiff to damages in the amount actually paid by Medicaid is contrary to the purposes of the collateral source rule and results in a windfall to the defendant.

In our view, a defendant physician who agrees to become a Medicaid provider, thereby agreeing to accept as compensation for medical services those amounts set forth in the Medicaid agreement, who thereafter bills a Medicaid patient for the full value of his services, may not claim that the true, reasonable value of those services is the lesser amount paid by Medicaid.9

The court added, however, that simply because decedent's damages were not limited by the amount of Medicaid payments received, it did not follow that the only admissible evidence as to amount of her damages was the amount billed by the defendant physician. The court noted that in cases where evidence of Medicaid payments is admissible, a plaintiff is entitled to a limiting instruction that such payments may not be used to limit the plaintiff's recovery. In conclusion, the court held the amount billed by the physician was relevant to establish the "reasonable value" of the services provided to the decedent, and the reasonable value of medical services is for the jury's determination.

Haselden affects more than those cases involving Medicaid. In fact, under Haselden, the test for determining the value of any medical services should be the reasonable value of the services, not the actual charge for the services. This is apparent from a review of the authorities relied upon by the court.

For instance, in Kashner v. Geisinger Clinic,10 the plaintiff sued several medical providers for malpractice, including Geisinger Medical Center (GMC) and the Geisinger Clinic. GMC had approved plaintiff's application for its "Charity Care Program." A fraction of plaintiff's bills were paid by the Department of Public Welfare, and the remainder of her bills was "written off" by GMC. The appellate court held the trial court erred in limiting plaintiff's proof to only the amount plaintiff actually paid in excess of the amount paid by the Department of Public Welfare. The court also held that under the collateral source rule the Clinic was not entitled to a credit for amounts forgiven by GMC.11

So how does one present proof of the "reasonable value" of the health care services where those services were provided without charge or under a program requiring a reduced charge for services? The plaintiff should use discovery devices, such as interrogatories and requests for production, to obtain evidence of the actual amount billed to others for these services. In addition, the plaintiff should request information about the provider's schedule of charges for the particular services, or any schedules provided to governmental or charitable entities outlining usual charges for the services. Furthermore, the plaintiff may present expert testimony from an economist who has researched what physicians are charging.

In sum, a trier of fact should establish the "reasonable value" of medical services incurred in a tort action, even if the plaintiff paid a reduced amount pursuant to a governmental or charitable program participated in by the provider. While evidence of the amount actually paid and the amount actually billed is admissible under limiting instructions, such evidence is not determinative as a matter of law of the "reasonable value" of the health care services.

(3) Recovery by a Parent or Spouse

A spouse or parent can recover for costs incurred if he or she pays for the services on behalf of the injured party. "A father and husband is bound to furnish the necessities of life to his minor child and wife and among such are necessary medical service and hospitalization. The father's and husband's right to recover from a tort-feasor for such items is based on his obligation to furnish them."12

Recovery in such a case is confined to actual damages, such as medical expenses incurred and the loss of a child's services and earning capacity.13 However, the right of recovery by a parent does not extend to a parent's claim of intangible loss of the child's aid, companionship, society, or a change in relationship with one's child because South Carolina law has not recognized a claim for loss of filial consortium.14

(4) Application of Collateral Source Rule 15

The plaintiff's damages are not reduced by any amount paid by his or her insurance company or by Medicare or Medicaid. "The collateral source rule provides that compensation received by an injured party from a source wholly independent of the wrongdoer will not reduce the amount of damages owed by the wrongdoer."16 The only prerequisite to qualification as a collateral source is that the payee must be "wholly independent of the wrongdoer."17 The defendant remains liable for all of the plaintiff's medical expenses even if the plaintiff's insurance company pays these expenses. The insurance company, however, has a right to seek subrogation. This prevents the plaintiff from receiving a double recovery.

b. Recovery of Future Medical Expenses18

(1) Introduction

This section addresses issues related to a South Carolina plaintiff's recovery of the value of future medical expenses as damages in a personal injury action. Specific issues addressed include: (a) the standard for admissibility of evidence of future medical expenses; (b) the standard of proof for an award of future medical expenses; (c) those types of expenses for which South Carolina courts have explicitly permitted recovery; (d) those expenses which are arguably recoverable, but which South Carolina courts have yet to address; and (e) the sources of proof of such expenses. It has also been attempted in this chapter to compare the law of South Carolina with that of other jurisdictions.

(2) South Carolina's Standard of Admissibility and Standard of Proof for Future Medical Expenses

(a) Standard for Admissibility

The rule followed by South Carolina courts, with regard to future damages, is that any evidence of those damages is admissible so long as that evidence tends to establish the nature, character, and...

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