First Quarter 2020
By: Charles Kramer
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?
In Wisconsin, what a jury is able to see about medical bills is controlled by statute. Under Wis. Stat. §908.03(6m)(bm):
Billing statements or invoices that are patient health care records are presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient. Any party attempting to rebut the presumption of the reasonable value of the health care services provided may not present evidence of payments made or benefits conferred by collateral sources.
This statute is perhaps best broken down into its parts.
- First, the face amount of the medical bill is presumed to be a reasonable value for the services provided. Because of this presumption, there is no longer any need to have a doctor or any other expert testify to the reasonableness of the bill. Under the statute, once the bill is authenticated, the bill, itself, goes to the jury.
- Second, under the statute, the presumption of reasonableness can be rebutted. If the defense wants to rebut the presumption, it can bring in an expert to testify that the bill does not represent the reasonable value of the service provided. The expert could use databases, etc. to prove that the face amount of the bill is not reasonable. This may be valuable where a particular doctor or other provider’s bill is a clear outlier in comparison to the average bills in the community.
- Third, there are limitations on what can be used to rebut the presumption. The expert cannot use evidence of insurance or collateral source payments to rebut the presumption of reasonableness. How far this goes is an open question. The statute may go so far as to bar evidence of what health insurers generally pay for the same service in the community. But it certainly means that evidence of particular collateral source payments in the particular case is inadmissible. What the health insurer paid towards the plaintiff’s bills is generally not going to go in front of the jury.
Despite the presence of Wis. Stat. §908.03, all may not be lost. There may be a way around the bar on collateral source payments under Wis. Stat. §908.03. Wis. Stat. §803.03 requires that any party with a subrogated interest be joined as a party in the action. Pursuant to this statute, a defendant could insist that the subrogated party actually prove up the amount of its lien. This would necessarily entail the subrogated insurer telling the jury how much it paid towards the various bills. The jury would also be instructed that it cannot duplicate any award of medical bills to a subrogated carrier in any award to the plaintiff. A good plaintiff’s lawyer can find ways around this. But this is perhaps the only way to get collateral source payments before the jury in the face of the Wisconsin statute.