PAID OR INCURRED UPDATE The Aftermath of Haygood v. de Escabedo

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1 PAID OR INCURRED UPDATE The Aftermath of Haygood v. de Escabedo JOE ESCOBEDO Escobedo, Tippit & Cardenas, L.L.P N. 10 th Street, Suite 950 McAllen, Texas (956) Paid or Incurred Update South Texas Advanced Civil Trial Law Course April 18, 2013

2 I. INTRODUCTION Section of the Texas Civil Practice & Remedies Code became effective September 1, As drafted, the section appears fairly innocuous but has been the subject of heated debate from the moment it was enacted. Section reads as follows: Evidence Relating to Amount of Economic Damages In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. TEX. CIV. PRAC. & REM. CODE SEC This paper will discuss the interpretation of , often referred to as the paid or incurred statute, by various Texas courts including the Texas Supreme Court s decision in Haygood v. de Escabedo, 356 S.W.3d 390 (Tex. 2011). Lastly, this paper will discuss the numerous unresolved issues that have and may arise as a result of the Haygood opinion. II. Texas Courts of Appeals Decisions A. Mills v. Fletcher In Mills v. Fletcher, 229 S.W.3d 765 (Tex. App. San Antonio 2007, no pet.) the San Antonio Court of Appeals held that limits a plaintiff from recovering medical or healthcare expenses that have been adjusted or written off. The Court explained the rationale for its holding as follows: Here, the statute uses the word incurred twice: recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. TEX. CIV. PRAC. & REM. CODE SECTION (Vernon Supp. 2006) (emphasis added). In referring to incurred the second time, the Legislature chose to modify incurred with the word actually. As such, incurred must mean something different than actually incurred. And, the word actually modifying incurred, as well as the phrase [i]n addition to any other limitation under law, shows an intent by the Legislature to limit expenses simply incurred. Thus, in construing this statute, we believe that medical or healthcare expenses incurred refers to the big circle of medical or healthcare expenses incurred at the time of the initial visit with the healthcare provider, while, as applied to the facts presented here, actually incurred refers to the smaller circle of expenses incurred after an adjustment of the healthcare provider s bill. Id. at 769. The San Antonio Court of Appeals recognized that its holding clearly violated the collateral source rule. However, the Court concluded that the legislature had the power to abolish the common law collateral source rule and, given the plain language of the statute, concluded that the legislature had intended to abolish the rule. Id. at 769, note 3. B. Gore v. Faye The Amarillo Court of Appeals dealt with the paid or incurred statute in Gore v. Faye, 253 S.W.3d 785 (Tex. App. Amarillo 2008, no pet.). Plaintiff Faye s private health insurance paid for some medical bills resulting from an automobile incident. At trial, Faye introduced affidavits proving up her medical expenses which were redacted to conceal adjustments made pursuant to an agreement between the health care provider and the health insurance carrier. Defendant Gore objected to the redactions but the trial overruled Gore s objections. Through an offer of proof, Defendant Gore introduced the unredacted affidavits. The jury returned a verdict that awarded Plaintiff Faye a lesser amount than that 2

3 presented in the redacted affidavits; therefore, the trial court decided that it was not reasonable to apply the offset that was the basis of Defendant Gore s offer of proof. On appeal, Defendant Gore did not contest the trial court s refusal to apply the offset after the verdict. Rather, Gore argued that the trial court had abused its discretion by disallowing the evidence of the adjusted medicals. The Amarillo Court of Appeals disagreed with Gore and held that it was within the trial court s discretion to disallow the adjusted medical bills based upon the common law collateral source rule which prohibits a party from mentioning that the other party has insurance. Id. at 790 (citing Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 625 (Tex. App. Houston [14 th Dist.] 2004, pet. denied) ( held that trial court had not abused its discretion in applying Section post-verdict) C. Irving Holdings Inc. v. Brown The specific issue in the case of Irving Holdings Inc. v. Brown, 274 S.W.3d 926 (Tex.App. Dallas 2009, pet. denied) was the timing of the application of the paid or incurred statute vs. the comparative responsibility statute (TEX CIV. PRAC. & REM. CODE section (a)). In a trial involving a motor vehicle incident, plaintiff Brown submitted affidavits to the jury showing total medical bills of $89,000. Outside the presence of the jury, it was established that Brown s workers compensation insurance paid $45, and the defendant argued that this was the amount actually incurred pursuant to The jury awarded Brown $89,000 for his past medical expenses but also found Brown was 50% comparatively responsible for the incident. After the verdict, the trial court first applied section (a) and reduced the plaintiff s damages by 50% which resulted in damages of $44,500. Then, the trial court determined that since this amount was less than the medical expenses actually incurred ($45,428.95), section did not apply and plaintiff was awarded $44,500. On appeal, the defendant argued that the trial court had erred in failing to reduce the $89,000 to the amount actually incurred before reducing plaintiff s recovery by the 50% comparative negligence. The Dallas Court of Appeals rejected the defendant s argument and held that is to be applied after all other calculations limiting or reducing the amount of recoverable damages because limits a plaintiff s recovery but not damages. Id. at 933. D. Matbon, Inc. v. Gries The Eastland Court of Appeals was presented with the issue of a trial court allowing a plaintiff to introduce unadjusted medical bills in Matbon v. Gries, 288 S.W.3D 471 (Tex. App. Eastland 2009, no pet.). The Eastland Court cited the Mills opinion and concluded the trial court had erred by not reducing the plaintiff s damage award for past medical expenses by the amount that had been adjusted and subsequently written off by the health care providers. Id. at Unlike the Mills decision, the Eastland Court of Appeals held that did not require the admission of collateral source evidence before the jury; rather, the trial court could consider the evidence post-verdict. Id. See also Goryews v. Murphy Exploration & Prod. Co., 2007 WL (S.D. Tex. 2007) (held that trial court should apply post verdict). III. Haygood v. de Escabedo The Texas Supreme Court weighed in on the paid or incurred issue in the case of Haygood v. de Escabedo, 356 S.W.3d 390 (Tex. 2011). Haygood and Escabedo were involved in a motor vehicle incident and Haygood sued Escabedo. Haygood s medical providers accepted payment from Medicare and wrote off a substantial portion of the bills. Escabado moved to exclude evidence of the medical expenses that had been written off. Haygood, citing the collateral source rule, filed a motion to exclude evidence of the payments by Medicare and the fact that part of the bills had been written off. The trial court granted Haygood s motion, denied Escabedo s motion, and the jury returned a verdict awarding Haygood the full amount of his past medical expenses. 3

4 The Texas Supreme Court agreed with Escabedo and, therefore, held that the evidence admitted by the trial court was legally insufficient to support the verdict. In essence, the Court held that recovery of past medical expenses is limited to what a health care provider has been paid or has a legal right to be paid under law or contract. Because a claimant is not entitled to recover medical expenses that a health care provider is not entitled to be paid, evidence of such charges is irrelevant to the issue of damages. Relating to the collateral source rule, the Court held that it still applies but that the common-law collateral source rule does not allow recovery as damages of medical expenses a health care provider is not entitled to charge. Id. at 396. IV. Unresolved Issues After the Haygood Decision A. Categories of Past Medical Expenses Given the Texas Supreme Court s focus on what a health care provider has been paid or has a legal right to be paid under law or contract, the parties will have to determine in which category (the paid category or the legal right to be paid category) the past medical expenses in a given case fall under. Further complicating this analysis is the fact that each case will have its own unique set of facts relating to past medical expenses. Numerous factors will have an effect on this analysis including: whether the applicable insurance is private or governmental (Medicare, Medicaid, workers compensation); whether balance billing 1 is allowed (determined by the type of insurance) and whether the past medical bills have been completely or partially paid. The following are the categories: 1. Paid Bills Governmental Insurance This category does not present any problems; the bills have been paid by Medicare, Medicaid or workers compensation and there is no balance billing. Therefore, we know the actual amount of past medical expenses. 2. Unpaid Bills Governmental Insurance Here, the health care provider has not been paid; therefore, plaintiff will need to determine the amount that the provider has a legal right to be paid under law or contract. Some form of discovery will be needed from the health care provider relating to any reimbursement agreement he has with the governmental insurance. 3. Paid Bills Private Insurance Initially, it would appear that this category would not present a problem because we can easily determine the amount that the health care provider has been paid. The problem arises due to the fact that health care providers are allowed to balance bill in the context of private insurance. If the health care provider seeks to obtain the amount which was not paid by the private insurance carrier, the amount actually incurred may be the entire amount that the provider is owed. Under these circumstances, the health care provider has a legal right to recover the entire amount. Of course, the unpaid portion must be proven up in some manner in order to recover them. See Section IV(B) infra. 4. Unpaid Bills Private Insurance Once again, the health care provider has not been paid; therefore, plaintiff will need to determine the amount that the provider has a legal right to be paid under law or contract. Some form of discovery will be needed from the health care provider relating to any reimbursement agreement he has 1 Balance billing describes the situation where a healthcare provider attempts to recover from the patient the amount for services rendered that insurance did not pay. By statute or regulation, balance billing is generally not allowed in cases involving Medicare, Medicaid or Workers Compensation. 4

5 with the private insurance carrier and the unpaid amount must be properly proven up. See also Section IV(D) infra. 5. Unpaid Bills No Insurance Every so often, plaintiff s counsel will be presented with a case where the plaintiff has no private insurance and does not qualify for any governmental insurance. This can happen when the claimant is an illegal alien or a transient. Like category number 1, this category does not present any problems; the health care provider has not been paid but there is no insurance carrier. Therefore, there is no need to determine what agreement the provider has with the carrier. Quite simply, the amount actually incurred is the full amount billed by the doctor because he has a legal right to be paid that amount. See infra Big Bird Tree Serv. v. Gallegos, No CV, 2012 WL (Tex. App. Dallas March 22, 2012, no pet. h.) (discussion of paid or incurred where bills written off by an indigent charity program). 6. Partially Paid Bills Governmental or Private Insurance It is not uncommon for a plaintiff s medical treatment to be ongoing at the time of trial or the court s discovery deadlines. Since all of plaintiff s past medical bills have not been paid, the plaintiff will need to determine the amount that the provider has a legal right to be paid under law or contract on the unpaid and/or ongoing medical treatment. B. CPRC / Affidavits Section (b) of the Texas Civil Practice & Remedies Code provides that an affidavit stating that the amount a person charged was reasonable and that the service provided was necessary is sufficient evidence to support a finding of fact to that effect. TEX CIV. PRAC. & REM. CODE (b) Section sets out the specific form for said affidavit. TEX CIV. PRAC. & REM. CODE The problem is that under Haygood, a affidavit may constitute no evidence relating to plaintiff s past medical expenses because the affidavit does not address the paid or incurred issue. Lawyers throughout the state are attempting to address this problem by adding language to the affidavit reflecting the amount which have been paid and the amounts that the health care provider is owed (ie. has a legal right to recover). The problem with the solution to the problem is that by adding language to the affidavit it no longer complies with As a result, defense counsel can move to strike the affidavits and/or object on grounds of hearsay. The Task Force for Rules in Expedited Actions has recognized this problem; in its Final Report to the Supreme Court of Texas, the Task Force stated: The affidavit currently provided for in is insufficient to prove up medical expenses in light of Haygood. Thus, the task force drafted an affidavit to allow medical expenses to be proven up without live testimony. The Task Force suggests that this new medical records affidavit be placed not in the Rules of Civil Procedure, but in Texas Rules of Evidence Rule 902 [Exhibit E], which sets forth the general business records affidavit. See Task Force for Rules in Expedited Actions - Final Report to the Supreme Court of Texas. On February 12, 2013, those rules were adopted by the Texas Supreme Court. Rather than changing TEX CIV. PRAC. & REM. CODE (b), the Supreme Court amended TEX.R.EV. 902 and provided us with an affidavit that complies with the Haygood decision. See Medical Expenses Affidavit Attached Hereto as Exhibit A. 5

6 Changes to TEX CIV. PRAC. & REM. CODE and , including the form of the affidavit, have been proposed to address the paid or incurred issue. See Proposed Bill attached hereto as Exhibit B. C. Does paid or incurred apply to future medical expenses? No Texas court has tackled whether the paid or incurred statute applies to future medical expenses. However, given the wording used in the statute, it appears that the answer is that it does not. Section uses past tense language for both the words paid and incurred. Even under the Texas Supreme Court s opinion in Haygood, future medical expenses have not been incurred because no healthcare provider has a legal right to recover for those services because the services have not yet been provided. D. How do you apply Haygood to letters of protection? Letters of protection (LOP) are sometimes used by attorneys in personal injury litigation to guarantee payment to healthcare providers from the proceeds of any future recovery. See, e.g., Sealift v. Satterly, 2003 Tex. App. LEXIS 6054, No CV, 2003 WL , at *3 n.2 (Tex. App.-- Houston [14th Dist.] July 17, 2003, no pet.) (mem. opinion). Can plaintiff s counsel use a letter of protection to recover the full amount of past medical expenses in light of Haygood? The honest answer is we do not know until we get some direction from the courts. However, given the fact that letters of protection are enforceable contracts, it appears that plaintiff s counsel could argue that the full protected amount is incurred because the doctor has a legal right to recover it. Obviously, this strategy will be questioned by defense counsel and the uncertainty behind this issue will only lead to complicate cases further. Defense counsel might choose to depose the doctor about the LOP and inquire about the past relationship between the lawyer and the doctor. Does the doctor have other LOPs with this attorney? Who drafted the LOP? Is a standard LOP used in each case? Has the doctor ever reduced the amount in a LOP before? If so, what was the amount of the reduction? Is there a standard reduction in each case? What would the reimbursement amount have been had the plaintiff submitted the bills to his insurance carrier? Does the non-submission of the bills violate any agreements between the medical provider and the insurance carrier? Further, if the case merits it, defense counsel might have to consider hiring an expert to testify on what the reasonable reimbursement rate would have been had the plaintiff submitted the bills to his insurance provider. Many of these same issues will arise in cases where the plaintiff or the healthcare provider does not submit the bills to the applicable insurance. Does the failure of a plaintiff to submit past medical expenses to available insurance amount to a failure to mitigate damages? As you see, these issues will not be resolved without extended litigation. V. POST-HAYGOOD CASES 1. Cavazos v. Pay and Save, Inc., 357 S.W.3d 86 (Tex.App. Amarillo, 2011, no pet. h.) The issue in Cavazos was the application of the percentage of fault reduction against the plaintiff in cases involving the paid or incurred statute. In a pre-haygood opinion, the Dallas Court of Appeals had held that is to be applied after all other calculations limiting or reducing the amount of recoverable damages because limits a plaintiff s recovery but not damages. See Irving Holdings Inc. v. Brown, 274 S.W.3d 926, 931 (Tex. App. Dallas 2009, pet. denied). In Cavazos, the Amarillo Court of Appeals disagreed with Irving Holdings. It noted that in Haygood the Texas Supreme Court had agreed that is a limitation on recovery but also held that only evidence of recoverable medical expenses is admissible at trial. Therefore, the court in Cavazos held that it logically follows that any calculation of what was paid or incurred precedes any reduction for plaintiff s percentage of responsibility. 6

7 2. Big Bird Tree Serv. v. Gallegos, 365 S.W.3d 173 (Tex. App. Dallas 2012, no pet. h.) In this case, the plaintiff submitted affidavits from UT Southwestern and Parkland hospitals proving up past medical expenses. In an offer of proof outside the presence of the jury, the defendant called record custodians for both hospitals who testified that the plaintiff had qualified for an indigent charity program and would only be required to pay small co-pays. Both custodians further testified that plaintiff would have to pay the expenses if he recovered them at trial. The issue was whether the trial court erred in awarding medical expenses that were not actually incurred when it included the full amounts of the past medical expenses in the judgment. In a very fact specific opinion, the Dallas Court of Appeals held that does not preclude recovery under the facts of this case. The Court reasoned that based upon Haygood and the collateral source rule allowing a negligent tortfeasor to avoid liability for medical expenses born by a charity program designed to benefit indigent patients, not only results in a windfall to the tortfeasor, it rewards the tortfeasor for injuring an indigent. 3. Henderson v. Spann, 367 S.W.3d 301 (Tex. App. Amarillo March 27, 2012, pet. denied) In yet another post-haygood opinion, the Amarillo Court of Appeals addressed the issue whether the trial court can fix the admission of inadmissible unadjusted medical bills at the judgment stage. The Court of Appeals answered this question with an emphatic no. First, the appellate court found that the admission of plaintiff s unadjusted medical bills and the exclusion of defendant s proffered adjusted medical bills was an abuse of discretion because the unadjusted bills were irrelevant and inadmissible. The Court then held that despite the fact that the trial court reduced the jury s award of past medical expenses to reflect the adjustments and write-offs, the trial court s evidentiary ruling was reversible error. The court noted: Id. at *3 As a result of the trial court s evidentiary rulings, the judgment, even as adjusted, is based on what amounts to no evidence, and the post-verdict adjustment itself serves as a deprivation of the constitutional right to trial by jury. 4. Prabhakar v. Fritzgerald, 2012 Tex. App. LEXIS 7154 (Tex. App. Dallas, Aug. 24, 2012, no pet.h.) In an appeal from a jury verdict in a medical malpractice lawsuit, Fritzgerald cross-appealed arguing that the trial court erred by reducing the jury s award for past medical expenses. At trial, the parties stipulated to the jury that the amount of Fritzgerald s medical bills was $1,280, The jury awarded $1,280,000 for past medical expenses but the Court reduced those damages by $347,391. The reduction was based upon a signed Rule 11 agreement which set out that $347,391 of the past medical expenses had been written off. Fritzgerald acknowledged that the parties signed the agreement and stipulated to the actual amount paid; however, Fritzgerald argued that the agreement was irrelevant because the stipulation was not read to the jury and the only evidence offered at trial was the larger amount ($1,280,000). The Dallas Court of Appeals disagreed with Fritzgerald and held that under Haygood, the trial court was required to reduce Fritzgerald s recovery pursuant to section if the court had the necessary information to do so and concluded that the trial court had the necessary information based upon the Rule 11 agreement. IV. CONCLUSION The paid or incurred statute and its interpretation by the Texas Supreme Court in Haygood will result in additional discovery and motion practice in the recovery of past medical expenses. Numerous issues remain and, no doubt, other issues will be raised as trial courts and appellate courts attempt to apply the statute and the Texas Supreme Court s holding. 7

8 New Rule 902(10)(c), Texas Rules of Evidence: EXHIBIT A Rule 902. Self-Authentication (10)Business Records Accompanied by Affidavit (c) Medical expenses affidavit. A party may make prima facie proof of medical expenses by affidavit that substantially complies with the following form: Affidavit of Records Custodian of STATE OF TEXAS COUNTY OF Before me, the undersigned authority, personally appeared, who, being by me duly sworn, deposed as follows: My name is. I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated. I am a custodian of records for. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that provided to on. The attached records are a part of this affidavit. The attached records are kept by in the regular course of business, and it was the regular course of business of for an employee or representative of, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original. The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided. The total amount paid for the services was $ and the amount currently unpaid but which has a right to be paid after any adjustments or credits is $. Affiant SWORN TO AND SUBSCRIBED before me on the day of,. Notary Public, State of Texas Comment to 2013 Change: Rule 902(10)(c) is added to provide a form affidavit for proof of medical expenses. The affidavit is intended to comport with Section of the Civil Practice and Remedies Code, which allows evidence of only those medical expenses that have been paid or will be paid, after any required credits or adjustments. See Haygood v. Escabedo, 356 S.W.3d 390 (Tex. 2011). 8

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