Should accident victims recover the full amount of their bills for hospital and medical treatment from those who injure them, or only the amount of the bills actually paid by the victims and their private health care insurers? What if those bills are paid entirely by Medicare or Medi-Cal at a substantially discounted rate? By unanimously voting to grant review of a San Diego appeals court decision, Howell v. Hamilton Meats & Provisions (4th Dist.) (2009), the California Supreme Court is likely to weigh in on these issues and the high stakes battle between personal injury plaintiffs and insurers of those who injure them.

After the precedent-setting decisions in Hanif v. Housing Authority (1st Dist.) (1988) and Nishihama v. City and County of San Francisco (1st Dist.) (2001), defendants often successfully filed pre-trial motions limiting medical specials a plaintiff could blackboard to the jury to the amount the plaintiff and her health insurer paid to her doctors at the discounted rates contractually negotiated between the doctors and the health insurer, not the much higher rates the doctors billed the plaintiff's insurer.

Recent appellate decisions require trial judges to permit jurors to receive into evidence the full amount billed by the plaintiff's treating providers on the basis that the billed amount gives the jury a more complete picture of the extent of plaintiff's injuries. Defendants are still permitted to file post-trial motions asking the judge to reduce the medical specials awarded by the jury to the amount actually paid by the injured party.

The Howell court reached a different conclusion, holding that an injured person who has insurance can collect the full amount billed by her treating providers, with no post-trial reduction of the jury verdict to the amount actually paid. Rebecca Howell, a San Diego County woman who was seriously injured when a truck made an illegal U-turn and hit her car, underwent spinal fusion surgeries and other treatment at two hospitals. The trial judge reduced the jury's award against the employer of the truck driver, Hamilton Meats, from $190,000 the hospitals billed to Howell and her health insurer to $60,000 the hospitals accepted from Howell's insurer. But the Fourth District Court of Appeal said the company and its insurer should pay the entire $190,000. The appellate court held that the discount was a collateral source - "a direct result of [Howell's] own thrift and foresight in procuring private health insurance" - and Hamilton "should not garner the benefits of Howell's providence."

Hamilton's attorney argued that Howell was not entitled under Nishihama to recover the amount of the discounted medical bills because she incurred no debt for the negotiated rate differential, and her insurer did not pay that portion of her bills to the hospitals. The Howell court disagreed, holding that when Howell executed written financial agreements with the hospitals before she received treatment from them, she became financially liable for the full combined charges the providers billed for the services they provided. The court also distinguished Hanif as a case involving a discount paid by Medi-Cal. There was no evidence in Hanif that the minor plaintiff was or would become liable for the difference between the undisputed reasonable value of the medical services and the amount Medi-Cal paid, and, as a minor, he also lacked the capacity to enter into financial responsibility agreements with his medical providers. Howell, on the other hand, was a privately insured plaintiff who incurred personal liability for her medical providers' usual and customary charges.

Until the Supreme Court expresses its opinion on the subject, defense counsel may still file post-trial motions asking the judge to reduce the medical specials awarded by the jury to the medical bills actually paid by the patient in both private- and public-pay cases. However, judges who grant motions in limine precluding jurors from hearing evidence of medical expenses billed by the plaintiff's doctors, but not actually paid, risk reversal on appeal.


Colin H. Jewell is a senior associate in the firm's San Francisco office. Please feel free to contact him at (415)781-7072, cjewell@wfbm.com.

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