by Robert J. Wulff
As many of you know from handling claims and lawsuits in Missouri, back in 2005 when Missouri underwent significant tort reform measures, Mo. Rev. Stat. §490.715.5 was passed by the Missouri Legislature which provided in pertinent part:
(1) Parties may introduce evidence of the value of medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party.
(2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. Upon motion of any party, the Court may determine, outside the hearing of the jury, the value of the medical treatment rendered based upon additional evidence, including but not limited to:
(a) The medical bills incurred by a party;
(b) The amount actually paid for medical treatment rendered to a party;
(c) The amount or estimate of the amount of medical bills not paid which such party is obligated to pay to any entity in the event of a recovery.
At passage of that statute, the defense bar (or at least me), felt that the statute could not be more clear and that the value of medical treatment to be presented to the jury would be the dollar amount necessary to satisfy the financial obligation to the health care providers. Typically, that would be a reduced amount—and possibly a significantly reduced amount especially if Medicare was involved.
Surprisingly (again at least to me), the trial courts began to rule that even though the statute was in place, the plaintiff’s attorneys simply had to present testimony from a health care provider or records custodian as to the value of the medical bills themselves and that trumped the presumption. The trial courts were ruling that the reduced amount was typically not allowed to be introduced into evidence. The trial courts simply allowed the greater amount “billed” to be the measure of damages. It was, quite frankly, becoming commonplace that we (the defense bar) were losing any argument for reduction of the bills.
Recently, however, the Missouri Supreme Court addressed this issue in the case of Deck vs. Teasley, 322 S.W.3d 536 (Mo. Banc October 26, 2010). In Deck, the Missouri Supreme Court held that §490.715 does create a rebuttable presumption that the dollar amount paid to satisfy the financial obligation to the health care provider is the value of the medical treatment rendered, however, when substantial evidence is provided rebutting that presumption the case must be decided on the basis as if no presumption existed. Accordingly, when the presumption is rebutted (typically through evidence of a health care provider testifying to the fairness and reasonableness of bills), then the presumption disappears and both figures are to be admitted at trial as if no presumption exists. Accordingly, pursuant to Deck, both the total amount of the bills submitted and the reduced amount to satisfy the financial obligation of the health care provider are given to the jury. The jury is then free to determine the true amount of the damages.
Whether or not the juries would then to go with the greater amount billed or the lesser amount paid is unknown. One would think that a smart jury would figure out that insurance was involved to pay the bills and hence why they were reduced.
Bottom line, due to the Deck ruling, at least at this point, what we now have is an argument with our friends on the plaintiff’s side that at least the jury can now consider the lesser amount paid rather than just accepting the greater amount billed.