Howell and Uninsured Plaintiffs
by Karen A. Feld on October 19, 2015
posted in Damages,
A new case came out from the 4th District Court of Appeal applying the Howell rule to uninsured plaintiffs. Bermudez v. Ciolex.
The plaintiff in this case was an uninsured pedestrian. His medical bills were $450,000, none of which were paid. He requested $691,000-984,000 in future medical expenses. Defense counsel argued the necessity and reasonableness of past medical expenses and suggested that past medical expenses should be $135,000. He did not provide a number for future medicals. The special verdict form awarded $460,431 in past medicals and $425,000 in future medical expenses. The total jury verdict was $3,751,969.
The court addressed the following issues (1) what is the proper measure of medical damages; (2) what evidence is admissible to prove the proper measure of medical damages; and (3) what evidence is sufficient to affirm an award of medical damages based on the proper measure? (Id. at p. 1328, italics in original.)
In Howell, the court stated that “a plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less.” (Id. at p. 555). The Howell case was based on the “paid or incurred” prong of the test, not the “reasonable value” prong.
The rule in Howell made sense when applied to an insured plaintiff because an insurer had already paid the medical bills. The measure of damages is generally what the insurance company had paid. The rule was ambiguous when applied to uninsured plaintiffs because there was no insurance company to pay the medical bills. The bills remained at the full value, without any insurance discounts or write-offs. A plaintiff would argue that since the bills were not paid, the correct measure of damages is the amount charged. The effect of this ambiguity is that defendants were be penalized in cases where the plaintiff did not bother to get insurance.
The Bermudez court concluded that the jury erred because the amount in incurred is not sufficient evidence on its own to prove reasonableness. An uninsured plaintiff must introduce substantial evidence of the amount incurred AND the reasonable value of the services.
