First Quarter 2020
By: Rubina Khaleel
A Hennessy & Roach, P.C., seven state Liability Group analysis on the question of Collateral Source Issues related to Medical Bills, specifically, what is admissible before the jury?
The Collateral Source Rule is an evidentiary rule in negligence actions that which excludes damages from any source of collateral compensation available to the party seeking recovery. “This rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. The theory underlying the adoption of this rule by a majority of jurisdictions is to prevent a tortfeasor from escaping liability because of the act of a third party, even if a possibility exists that the plaintiff may be compensated twice.” Hiway 20 Terminal, Inc. v. Tri-Cty. Agri-Supply, Inc., 232 Neb. 763, 767, 443 N.W.2d 872, 875 (1989
Evidence of compensation from a collateral source is not necessarily inadmissible to issues other than the measure of damages. The evidence may not be admissible as evidence to the “value” of the injury, it may be admissible as evidence of the “extent” of the injury. Ferlise v. Raznick, 202 Ne. 745, 748-49, 277 N.W.2d 94, 95 (1979).
The Nebraska Supreme Court has decreed that “Damages, like any other element of a plaintiff’s cause of action, must be pled and proved, and the burden is on the plaintiff to offer evidence sufficient to prove the plaintiff’s alleged damages.” J.D. Warehouse v. Lutz & Co., 263 Neb. 189, 195 (2002).
The rule on recovery of past and future medical expenses in Nebraska states that “[a] plaintiff, injured by another’s negligence, is entitled to recover the reasonable value of medical expenses incurred as the result of the negligently caused injury and to recover the value of future medical expenses that are reasonably certain to be incurred as the result of the injury.” Renne v. Moser, 241 Neb. 623, 634 (1992). “A plaintiff’s evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages.” Shipler v. General Motors Corp., 271 Neb. 194, 231 (2006). “[U]ncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss.” Id. “The proof is sufficient if the evidence is such as to allow the trier of fact to estimate actual damages with a reasonable degree of certainty and exactness.” Id. “The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder’s decision will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved.” Id. at 232. Whether the evidence of damages is reasonably certain is a question of law and not a matter to be decided by the trier of fact. Id. “The trial court must first determine whether the evidence of damages provides a basis for determining damages with reasonable certainty, i.e., is not speculative or conjectural. If such a basis is provided, the issue of damages can be submitted to the jury.” Shipler, 271 Neb. at 231. “The jury is instructed that the plaintiff must prove the nature and extent of the damages by the greater weight of the evidence, not whether the evidence of damages is reasonably certain.” Id.
With regard to future medical expenses, “the amount of future medical expenses is not required to be established with mathematical certainty before the plaintiff may recover their value.” Renne, 241 Neb. at 634. The nature of future medical expenses “requires consideration of future events that can only be reasonably predicted, but not conclusively proved, at the time of trial.” Pribil v. Koinzan, 266 Neb. 222, 229 (2003). However, “conjecture or possibility regarding future medical expenses is insufficient to submit to a fact-finder the issue of future medical expenses.” Id. “The need for future medical services and the reasonable value thereof may be inferred from proof of past medical services and their value.” Schaefer v. McCreary, 216 Neb. 739, 743 (1984). “Before a trial court may submit to a jury any question concerning the permanency of a plaintiff’s injury and future medical expense, the plaintiff must have presented sufficient relevant evidence for the jury to determine whether the plaintiff has sustained a permanent injury and will incur future medical expenses as a result of the injury.” Renne, 241 Neb. at 635. If the plaintiff makes this showing, “the jury should be instructed . . . that the plaintiff may recover damages for injuries ‘reasonably certain’ to be incurred in the future.” Shipler, 271 Neb. at 232, quoting Pribil, 266 Neb. at 229. In doing so, the following factors may be considered: the reasonable value of medical care and supplies actually provided and reasonably certain to be needed in the future, lost wages, the reasonable value of the earning capacity [the plaintiff] was reasonably certain to lose in the future, the reasonable monetary value of the physical pain and mental suffering she had experienced and was reasonably probable to experience in the future, and the reasonable monetary value of her loss of enjoyment in the past and which s/he is reasonably probable to experience in the future. Id.
“Social legislation benefits, including payments by Medicare and Medicaid, are excluded by the collateral source rule.” Finckle v. State, 273 Neb. 990, 1009, 735 N.W.2d 754, 772 (2007).