Recovering Medical Expenses in New Hampshire Personal Injury and Medical Malpractice Cases: Trial Judges Overwhelmingly Favor Billed Amount over Paid Amount

Recovering Medical Expenses in New Hampshire Personal Injury and Medical Malpractice Cases: Trial Judges Overwhelmingly Favor Billed Amount over Paid Amount

By

Kevin F. Dugan and Jared R. Green

 

I.          Introduction:

            In two prior articles we traced the development of the law regarding the admissibility of evidence of medical expenses write offs.1  Four years have passed since the second such article and our Supreme Court still has not ruled on this issue.  New Hampshire trial judges, on the other hand, have continued to issue decisions, the vast majority of which hold that a personal injury or medical negligence plaintiff may recover the billed amount of his or her medical expenses and the defendant is barred by the collateral source rule from introducing evidence of any reduced amount accepted by the plaintiff’s medical care providers.  The following tracks all twenty-two of the relevant trial court rulings of which we are aware.

 

II.        New Hampshire Trial Court Orders Regarding Medical Expense Write Offs:

            Judge David Sullivan issued what appears to be the first New Hampshire trial court decision on medical expense write offs in 1999 in Debski v. JMC Equities Corporation.2  In Debski, the plaintiff was injured by a drunk driver, and she brought a dram shop case seeking to recover, inter alia, damages for past medical expenses.  One of the defendants filed a motion in limine asking the court “to limit the amount of damages for medical expenses plaintiff can claim to the amount actually paid by Medicare rather than the amount originally billed by the doctors.”3

            Judge Sullivan reviewed the New Hampshire cases addressing the collateral source rule and then cited §911 comment h from the Restatement (Second) of Torts for the proposition that a plaintiff who pays less than the reasonable value for services can recover no more than the amount paid unless the lower price was intended as a gift.4  Since the Medicare discount was not intended as a gift to the plaintiff, Judge Sullivan concluded that “the reasonable value of the services which plaintiff is entitled to is the amount actually paid by Medicare.”5  He explained that this determination was consistent with the New Hampshire Supreme Court cases applying the collateral source rule because, in those cases, “the collateral source rule was applied to expenses which were actually paid by a third party.”6

            Judge Sullivan also said his decision was in accord with other jurisdictions that had addressed the issue in the context of Medicaid.  However, the cases he cited for this proposition included a federal district court case from Virginia that, as it turns out, incorrectly predicted how the Virginia Supreme Court would rule7; the Kansas Court of Appeals decision in Bates that was subsequently found by the Kansas Supreme Court to be inapplicable to Medicare cases; and the California Court of Appeal decision, discussed above, that has been criticized by other courts.8  In addition, Judge Sullivan relied on Restatement §911 comment h which other courts have subsequently described as inapplicable to medical expense write offs.

            The next trial court decision appears to be Judge DiClerico’s November 2000 opinion in Williamson v. Odyssey House, Inc.9  In that case, the defense sought to exclude evidence of the billed cost of medical services and to limit the evidence of damages for medical expenses to the amount actually paid by Medicaid.10           

            Judge DiClerico reviewed New Hampshire’s collateral source rule and case law defining the elements of damages and concluded that “under New Hampshire law, a plaintiff's recovery is not limited to the actual amount that has been paid or will be paid for medical services, but is instead measured by the reasonable value of such services.”11

            He then identified the out-of-state cases, which by this time included a number of cases supporting the plaintiff’s side, and determined that

 

                        In light of New Hampshire's collateral source rule and the standard

                        for the measure of damages for medical costs, the court concludes

                        that the reasonable value of medical services that [the minor plaintiff]

                        has required and probably will require in the future is the proper

                        measure of damages, regardless of the amount paid for those services

                        by Medicaid.”12          

 

            Ten days later, Judge McHugh issued his decision in the medical negligence case of Plummer v. Optima Health - Catholic Medical Center.13  Although Judge McHugh did not cite, and probably was not aware of, Judge DiClerico’s order, he expressly rejected Judge Sullivan’s analysis in the Debski case.14  Instead, Judge McHugh held that, under New Hampshire’s collateral source rule, the plaintiff was entitled to recover the amount billed by her providers without regard for the reduced amount paid by Medicaid.15  In a similar case decided five years later, Judge McHugh stood by his earlier decision.16

            In January of 2007, Judge Houran issued an order in the auto accident case of Cook v. Morin-Binder.17  Prior to trial, the plaintiff moved in limine for permission to submit her full medical bills even though her providers accepted a discounted amount from her health insurer.  Relying on the Pennsylvania Supreme Court’s decision in Moorhead and §911 comment h from the Restatement (Second) of Torts, Judge Houran held that “the collateral source rule does not apply to the written off amounts” because “[t]hese amounts were not paid by a third party, and the plaintiff incurred no expense or obligation to pay the written off amounts.”18

            Judge Houran did not acknowledge that Moorhead represents the distinct minority position on this issue and he did not cite or distinguish any of the numerous cases that have gone the other way.  Nor did he address the fact that Restatement §911 comment h, by its terms, appears to apply to an entirely different factual scenario.  

            Judge Houran reiterated his same reasoning in Sica v. Britton19, decided a few weeks after Cook, in which he held that a plaintiff could not recover Medicare and private health insurance discounts.

            In March 2007, Judge Brennan addressed this issue in McManus v. DeMoulas Supermarkets, Inc.20  The plaintiff in that case fell at a grocery store and injured her leg.  The defendant moved in limine to preclude the plaintiff from offering her medical bills at trial since the plaintiff’s health insurance carrier had paid a discounted amount.  In its motion, the defense cited Judge Sullivan’s Debski decision and Judge Houran’s decisions in Cook and Sica

            In response, plaintiff’s counsel, Paul Moore, crafted a masterful objection, mixing a discussion of New Hampshire’s collateral source rule with citation to Judge DiClerico’s Williamson decision and out-of-state cases representing the majority view across the country.  Judge Brennan ultimately issued a one sentence order stating “Motion denied.  The Court agrees with the legal reasoning in plaintiff’s objection and adopts that reasoning.”21

            The next order was from Judge Mohl, who cited Judge DiClerico’s Williamson decision and ruled that the defendant in a motorcycle accident case was precluded from introducing evidence of medical expense write offs.22

            Seventeen days after Judge Mohl’s decision, Judge Houran issued an order in which he reconsidered his prior conclusions in Cook and Sica and wondered aloud if they were mistaken.23  After deciding the pending motion on other grounds, Judge Houran noted the split among the Superior Court reflected in Debski on one hand and Plummer on the other and stated

 

                        The plaintiff's Objection sets forth a series of well thought out

                        arguments as to why the former position, which in appropriate

                        cases permits the consideration of amounts written off by a

                        plaintiffs health care providers as potentially bearing on the

                        reasonable value of medical expenses, with which position this

                        court has previously agreed, is in error.”24

 

He declined to determine “whether [his] prior views of the law may be in error” on this issue since he had denied the defendant’s motion on other grounds.25

            Judge Mangones leapt into the fray in November 2007 in Price v. Goodsell and denied a defense motion to preclude the plaintiff from introducing evidence of the billed amount of her medical bills.26  He cited Williamson and Restatement (Second) of Torts §920A(c) in support of his conclusion.27

            The next relevant opinion came from Judge Groff in Rollins v. Hitesh Rawel & Shivum, LLC in December 2007.28  We do not have a copy of the Rollins decision but it is clear from a later order of Judge Groff’s that he ruled in favor of the defense and barred evidence of the billed amount of the plaintiff’s medical expenses.29

            In the seventeen months following Rollins, judges issued seven consecutive decisions in favor of the plaintiffs.  The first was Veilleux v. Noonan30, in which Judge Houran answered the question he left open in Cromeenes v. Pease.31   In Cromeenes, Judge Houran signaled a possible change in his view on this subject although he decided the pending motion on different grounds.  However, in Veilleux, he squarely rejected the personal injury defendants’ arguments and held that the plaintiffs were entitled to introduce evidence of the full amount billed for their medical care despite the fact that the providers accepted a lesser amount from the plaintiffs’ third party payors.  He concluded that New Hampshire law permits the plaintiffs to introduce evidence of the reasonable value of their past and future medical care and the fact that the plaintiffs’ providers agreed to forego collection of the difference between what the third party payors paid and the reasonable value of the services is irrelevant.32

            Next, in Christiansen v. Kunze33, Judge Arnold conducted a thorough review of our Supreme Court’s collateral source decisions and case law from other jurisdictions and determined that the plaintiff may present evidence of the amount billed by his health care providers even though the providers accepted less from Medicaid.34  Judge Arnold described the basis for his holding as follows:

 

                        the Court cannot find that [our Supreme Court’s] prior decisions

                        limit the plaintiff’s recovery to amounts actually paid.  Prior cases

                        do not support a holding that the amount paid is dispositive of the

                        reasonable value.  New Hampshire law generally seeks to avoid

                        a windfall to the tortfeasor.  The Court is, therefore, disinclined

                        to adopt a rule that would differentiate between the types of

                        benefits received by injured parties and effectively grant a tortfeasor

                        a windfall for having injured an individual who receives public

                        assistance.35

 

            In Bradshaw v. Matzkin36, Judge Vaughn adopted what he referred to as the majority rule and held that “the plaintiffs are not precluded from presenting evidence of the reasonable value of medical expenses, even though some expenses may have been written off by medical providers.”37

            Judge Brown weighed in on June 30, 2008 and held that “the plaintiff is entitled to damages based on the reasonable value of her medical care caused by the defendant’s negligence and is not limited to the amount actually paid by her health care insurers.”38

            Judge Abramson followed suit on July 15, 2008 citing four of the aforementioned Superior Court orders.39

            Judge O’Neill, relying largely on Williamson, adopted the majority rule in Whiteman v. Cityside Management Corp.40  He held that “the plaintiff is not precluded from introducing evidence of the full value of medical expenses incurred, including the amount written off by her healthcare providers.”41  He added that “the reasonable value of the plaintiff’s medical care is not limited to the amount actually paid for such services” and expressly barred the defense from introducing evidence of the paid amount.42

            Judge Laplante of the Federal District Court took up the issue next in Aumand v. Dartmouth Hitchcock Medical Center.43  Applying New Hampshire law and relying on Williamson and a list of out-of-state cases, he held that the malpractice defendant was barred from offering evidence of what it, or any other provider, accepted as payment for the decedent’s medical expenses.44

            The plaintiffs’ run of success was interrupted by Judge Lynn’s August 12, 2009 decision in Taranov v. Vella.45  The procedural setting of the decision is unclear from the order.  It appears that the plaintiffs did not object to the defendant’s motion in limine so it was granted as a matter of course.  The state, as the Medicaid lienholder, apparently attempted to intervene and moved for reconsideration.  The plaintiffs then filed a belated objection to the original motion in limine.  Judge Lynn denied the motion for reconsideration without mentioning the collateral source rule at all or addressing any of the relevant Supreme Court precedent, trial court orders, or out-of-state authority.46

            Six months after Taranov was issued, Judge Laplante was asked by a personal injury defendant to reconsider his conclusion in Aumand.  He conducted an exhaustive review of the various Superior Court orders and out-of-state authorities cited by the defense and reiterated his prior holding.  He added

 

                        unless and until this state’s version of the collateral source rule

                        is changed by the New Hampshire legislature or New Hampshire

                        Supreme Court, this court will continue to apply it to billed

                        amounts “written off” by a plaintiff’s providers, in accordance

                        with existing law here and in the vast majority of other jurisdictions.47

 

            Judge Groff issued the latest decision that excludes evidence of the billed amount of a plaintiff’s medical expenses.48  His two page order dated June 4, 2010 acknowledges the existence of contrary decisions from fellow Superior Court judges and Federal District Court judges, but concludes that “written off costs are outside of New Hampshire’s collateral source rule . . .”49

            The two most recent decisions we are aware of on this issue both come from Judge Laplante and they state his continued adherence to his prior orders barring evidence of medical expenses write offs.50

 

III.       Conclusion:

            The foregoing establishes that twelve New Hampshire trial court judges have decided that evidence of the discounted amount accepted by a medical care provider is barred by the collateral source rule, while only three trial court judges have held otherwise.  This is in keeping with the majority rule in other jurisdictions and it suggests that our Supreme Court will eventually follow suit.

 

 

 

ENDNOTES  

 


1.  See “Application of the Collateral Source Rule to Medical Expenses Written Off in Medical Negligence and Personal Injury Cases,” 29 TBN 177 (Fall, 2007); “Update: Application of the Collateral Source Rule to Written Off or Reduced Medical Expenses,” 30 TBN 71 (Spring 2008).

3. Id., Order at 2.

4. Id., Order at 5.

5. Id.

6. Id. (citing Clough, 94 N.H. at 138; Bell, 104 N.H. at 227).

7. McAmis v. Wallace, 980 F.Supp. 181 (W.D. Va. 1997).  The Virginia Supreme Court subsequently held in Acuar v. Letourneau, 531 S.E.2d 316 (Va. 2000), that medical expense write offs constitute collateral sources.

8.  Supra Note 2; Debski, Order at 5-6 (citing McAmis, Robinson v. Bates, 857 N.E.2d 1195 (Ohio 2006), and Hanif v. Housing Authority, 246 Cal.Rptr. 192 (Cal.App. 1988)).

10. Id. 2000 WL 1745101 at *1.

11. Id.

12. Id.

14. Id., Order On Defendant Catholic Medical Center’s Motion to Compel Production of Medicaid Information at 4.

15. Id., Order On Defendant Catholic Medical Center’s Motion to Compel Production of Medicaid Information at 4-5.

16. Raley v. Albertson, No. 04-C-163, Order on Motion to Compel (Rockingham County Superior Court, December 22, 2005).

18. Id., Order at 3-4.

19. Sica v. Britton, No. 05-C-213, Order on Motion in Limine (Strafford County Superior Court, February 1, 2007).

20. No. 06-C-148, Order on Motion in Limine (Hillsborough County Superior Court Southern District, March 28, 2007).

21. Id.

22. Galluscio v. Hall, No. 06-C-0045, Order (Belknap County Superior Court, October 1, 2007).

23. Cromeenes v. Pease, Order on Motion in Limine to Limit Damages (Strafford County Superior Court, October 18, 2007).

24. Id., Order on Motion in Limine to Limit Damages at 3.

25. Id.

27. Id., Order at 6.

28. No. 06-C-0905 (Hillsborough County Superior Court Southern District, December 13, 2007).

29. See Charbonneau v. Charette, No. 09-C-0464, Order on Defendant’s Motion in Limine at 2 (Hillsborough County Superior Court Southern District, June 4, 2010) (Groff, J.).

30.  No. 06-C-207, Order on Motion in Limine (Grafton County Superior Court, April 7, 2008).

31.  Supra Note 23.

32.  Veilleux, Order at 2.

34.  Id., Order on Defendant’s Motion for Summary Judgment as to the Measure of Medical Expense Damages at 5.

35.  Id.

36. No. 06-C-0025, Order on Defendant’s First Motion in Limine - Exclusion of Evidence of Unpaid Medical Expenses (Grafton County Superior Court, April 23, 2008).

37. Id., Order on Defendant’s First Motion in Limine - Exclusion of Evidence of Unpaid Medical Expenses at 5.

38. Michaud v. Bridges, No. 07-C-0055, Order (Strafford County Superior Court, June 30, 2008).

39. Couturier v. Park, No. 07-C-0397, Order (Hillsborough County Superior Court Northern District, July 15, 2008).

41.  Id., Order on Motions in Limine at 6.

42.  Id., Order on Motions in Limine at 7.

44.  Id., 611 F.Supp.2d at 92.

46.  Id., Order at 1-2.

47.  Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18, 2010 WL 432355 at *10 (D.N.H. February 3, 2010).

48. Charbonneau v. Charette, supra Note 29.    

49. Id., Order on Defendant’s Motion in Limine at 2.

50.  See Bartlett v. Mutual Pharmaceutical Co., Inc., 2010 DNH 125, 2010 WL 3156555 at *2 (D.N.H. July 26, 2010); Herbst v. L.B.O. Holding, Inc., 2011 DNH 072, 7-9 (D.N.H. May 2, 2011).