Articles Posted in Damages – Personal Injury

A Tennessee appellate court has ruled that a chiropractic clinic’s assignment agreement unenforceable in lawsuit against former patient injured in car wreck and liability insurance company who settled injury claim with patient. 

In Action Chiropractic, LLC v. Prentice Delon Hyler,, No. M2013-01468-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014), the defendant (patient) was injured in a car crash and was subsequently treated at plaintiff’s chiropractic center (clinic), incurring approximately $5,010 in charges for medical care. In an attempt to secure payment for any treatment provided, the clinic initially required the patient to execute an assignment contract for “medical expense benefits allowable, and otherwise payable” to patient by his “health insurance, auto insurance, or any other party involved.”

The clinic sent a copy of the assignment contract to Erie Insurance Exchange (Erie), which was the auto insurance carrier of the person responsible for causing the patient’s car crash. The clinic demanded that Erie honor the assignment contract by paying the clinic directly the amounts due for patient’s treatment.

Patient eventually settled his personal injury claim with Erie for $8,510, and Erie sent patient a check for the full settlement amount with a letter stating that Erie would not pay medical providers or reimburse health insurance carriers directly and that patient would be responsible for handling any outstanding balances out of the settlement check. In other words, Erie ignored the clinic’s demand that Erie pay the clinic directly. Patient then failed to pay the clinic for the treatment he received.

The clinic sued the patient and Erie based on the assignment contract. The case was dismissed on summary judgment and affirmed on appeal on multiple bases. The appellate court ruled that the clinic’s assignment contract was invalid under Tennessee’s statute governing assignment of rights under insurance policies. Contrary to the clinic’s stretched interpretation of Tenn. Code Ann. § 56-7-120, the statute was inapplicable because the patient was not an insured under the Erie policy and thus was not a “person entitled to benefits under the policy” within the meaning of the statute. Further, under Tennessee common law, even though the patient could have assigned his settlement proceeds to the clinic, the court ruled that Erie still had no obligation to honor the assignment contract. The patient had no rights against Erie that he could assign to the clinic and there otherwise was no contractual privity between Erie and the clinic. Finally, because the clinic was seeking to enforce a duty purportedly arising under the Erie insurance policy, the lawsuit was in essence a “direct action against a liability insurance carrier of a defendant who allegedly caused harm,” and Tennessee does not permit direct actions against insurance carriers. 

I wonder if the chiropractor also brought a claim against the patient’s lawyer.  My guess is the patient did not have a lawyer, because a lawyer probably would have insisted that the chiropractor’s interest be resolved at the time of settlement.

Those of you who regularly do personal injury work in Tennessee will recognize that the language in the chiropractor’s agreement with his patient is similar to the language many hospitals have in their admission contracts.

You can be sure that the Tennessee Supreme Court will be asked to review this case.


For more than a century, Tennessee courts have recognized that a tortfeasor “must accept the person as he finds him” and have allowed injured parties to recover all damages proximately caused by tortfeasors. This means that injured victims of negligence are allowed to recover damages for aggravation of pre-existing injuries as long as there is expert medical proof linking the additional harm suffered by the injured person to the acts of the wrongdoer. 

In the case of Pyle v. Mullins, No. E2012-02502-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2013), the plaintiff was injured in a car crash and at trial received a jury verdict for $15,000 (an amount less than his claimed medical expenses).  Plaintiff believed the verdict was too low and appealed the judgment. One reason for the low damage award, according to the plaintiff’s appeal, was that the judge refused to instruct the jury regarding the defendant’s liability for aggravation of the plaintiff’s pre-existing neck condition. (Note: while it is the jury who determines the amount of compensation to award an injured plaintiff, it is the judge who makes the legal determination on the types of damages that can be awarded.  Exactly why the plaintiff thought the award would have been larger if the jury had been charged on aggravation of a pre-existing condition is not clear.)  The plaintiff argued that the jury should have been allowed to award additional damages because, he claimed, proof at trial showed the crash caused his pre-existing degenerative disc disease to become a chronic condition requiring extended treatment.

After reviewing the evidence at trial with a focus on the testimony of plaintiff’s medical expert, the court of appeals disagreed with the plaintiff and affirmed the trial court’s decision to not instruct the jury on plaintiff’s pre-existing neck condition. While the plaintiff’s medical expert testified that a person with degenerative changes like the plaintiff’s is more susceptible to injury and that car crashes commonly cause neck pain to manifest itself in a person with degenerative changes, the medical expert did not testify, as required by law, that the plaintiff’s car crash aggravated his degenerative disc disease or had any specific effect on it at all. In other words, the medical expert’s testimony about general observations and correlations between neck pain and car crashes was insufficient and not material because it did not specifically relate to the plaintiff’s injury.

This ruling does not mean that the plaintiff was faking his injury. Nor does it mean that the courts thought the plaintiff did not suffer additional pain after the crash. It simply means the plaintiff did have the appropriate expert proof relating his injury to the crash as required by Tennessee law. A jury cannot find a defendant liable and award damages to a plaintiff for the exacerbation of a neck injury unless a medical expert testifies that (1) there was a pre-existing injury at the time of the wreck (2) that was aggravated because of the wreck.

Lastly, in affirming the jury’s verdict, the Pyle court also ruled, contrary to the plaintiff’s arguments, that there was material evidence to support the damage award and found no reversible errors in several of the trial court’s evidentiary rulings.  

Read this opinion to see a laundry list of things that can go wrong in the trial of a soft tissue injury case.  I don’t know what the plaintiff was offered in this case but given the summary of the evidence set forth in the Court of Appeals’ opinion this case was, shall we say, weak.

Click on the link to see more Tennessee case law on aggravation of pre-existing condition.

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis"  for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2),   This was a disaster waiting to happen.  Why?

Here is an example.  Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident.  She will never work again and she has a significant future medical expenses over her lifetime.  Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy.  There is also a dispute over the inflation rate and the discount rate.

Under the original version of the law, the jury would have up to 240 separate lines  to complete on future damages – 80 entries on lost earning capacity, 80 lines for future medical bills, 80 lines for non-economic damages.  This is not only an unnecessary hassle for the jury, but it also creates lots of opportunities for error.

If she had been married at the time of the incident, another 80 lines would be required for future loss of consortium.

The new legislation – State of Tennessee Public Chapter 379 –  eliminates the words "on an annual basis."  Thus, the jury still must still break out past and future damages by class, and if life expectancy is disputed it must still determine the plaintiff’s life expectancy, but it need not determine each class of damages on a year-by-year basis.

The change in the law became effective on the date it was signed by the Governor.  (May 14, 2013)

The Tennessee Judicial Conference gets the credit for getting the General Assembly to make this important change in the law.  A crazy law just got a little less crazy. 

The fungal meningitis outbreak discovered in Nashville and now spread to other states (Minnesota, Ohio,  Florida, North Carolina, Indiana, Michigan, Virginia and Maryland) will shed new light on compounding pharmacies and epidural steroid injections.  But it will also shed a light on the tort reform statutes that placed limitations on the amount of money that wrongdoers have to pay when their conduct kills or injures a human being.

Usually, the effects of tort reform remain hidden, known only to the those who get harmed and find out their rights are limited, the legal community, and of course  those members of the business and insurance communities who persuaded the General Assembly to pass the laws.  But now that we have a tragedy that is in the national spotlight, millions of people will come to know that the Tennessee General Assembly does not permit Tennesseans to put a value on human life or on suffering or pain.  Rather, the value of those losses has been arbitrarily capped by  lobbyists and business interests.

In other words, the public will soon find out that tort reform will provide yet another harm to the victims of fungal meningitis and their families.

So what damages are available to the victims of the fungal meningitis outbreak?  Under Tennessee law, the personal injury victims (those who contract fungal meningitis and survive) will be able to receive medical expenses and lost wages.  Those losses – called economic damages – are not limited under the law.  (Note,however, that to the extent that insurance ()government or private)) pays any of the medical bills the insuring entity probably will have to be repaid.)

 Likewise, those personal injury victims will be able to recover damages for pain, suffering, and loss of enjoyment of life.  These damages are called non-economic damages. 

in addition, the spouse of the person who got fungal meningitis can recover damages for loss of consortium.  All of these damages (economic, non-economic and loss of consortium damages are called "compensatory damages."

If the fungal meningitis is successfully treated and if there are no permanent effects, the only other damages that he or she might be able to  recover are punitive damages.  Punitive damages will be discussed below.

Economic damages are not limited under the law.  Non-economic damages are limited to $750,000 except under very limited circumstances.  The General Assembly lumped the victim and the spouse’s damages together for purposes of the damage cap.   This means that fungal meningitis patient and his or her spouse can recover only $750,000 for non-economic damages, even if the total amount awarded by a jury for such losses exceeds that for either or both of them.

Thus, a person who survives fungal meningitis without any ongoing problem as a result will have been able to recover all of his or her economic damages, but both the patient and his or her spouse will be able to recover no more than $750,000 in non-economic damages.  (Note:  once again, there are a couple of exceptions to this damages cap.  Much more information is needed about the specific case and the conduct of the defendant to now whether an exception will apply.  Some exceptions raise the non-economic damages cap to $1,000,000.  Other exceptions lift the cap completely..  The statute that discusses this area of the law is T.C.A. Sec. 29-39-102.)    Under prior law there was no cap on non-economic damages.

If the person contracting fungal meningitis has a permanent injury as a result, he or she can recover damages for loss of future earning capacity and for future medical bills that are likely to be incurred as a result of having fungal meningitis.  There is no cap on the damages that may be awarded for these economic losses. 

In addition, damages may be awarded for the future pain, suffering, loss of enjoyment of life, and other non-economic damages.  And the patient’s spouse can recover damages for future loss of consortium.  But the damage cap still applies – $750,000 for the combination of the patient’s losses and the spouse’s losses. T.C.A. Sec. 29-39-102.

In other words, past and future non-economic losses for both the spouse and the patient are capped at $750,000 unless one of the limited exceptions to the damage cap applies.  Under former law, there was no artificial cap on non-economic losses.

If the fungal meningitis patient dies, his or her family can recover economic losses (related medical bills, funeral bills, loss of earning capacity reduced by future defined living expenses) and non-economic losses (pain, suffering and the loss of enjoyment of life before death, as well as the damages for the loss of a loved one after death) but the non-economic damages are capped at $750,000 absent certain circumstances.  T.C.A. Sec. 9-39-102.

Under prior Tennessee law non-economic damages in wrongful death cases were not limited by an artificial cap.

Punitive damages can be awarded if it is determined that the defendant acted "recklessly." Reckless conduct occurs when the defendant "is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances." Hodges v. S.C.Toof  & Co, 833 S.W.2d 896, 901 (Tenn. 1992)  (Punitive damages can also be awarded for intentional, malicious, or fraudulent conduct.) 

The new tort reform law limits punitive damages to two times the compensatory damages or $500,000, whichever is greater.  There are four  exceptions to this cap on punitive damages – it is too early to tell whether any of those exceptions will be applicable to these cases.  (T.C.A. 29-39 -104 (a)

I wrote yesterday about the limited liability of the sellers of the steroid that caused fungal meningitis under Tennessee law.  Even if a seller is determined to be liable, the seller has liability for punitive damages under extremely narrow circumstances.  T.C.A. Sec. 29-39-104 (c).

There was no artificial cap on punitive damages under prior law.  It is certainly true that judges – both trial and appellate – tended to examine punitive damage awards very carefully, but there was not a predefined limit on the amount of damages that could be awarded.

We can see that the cap on compensatory damages also provides yet another limitation on punitive damages.  How? When compensatory damages are capped it means that there is a smaller number than can be multiplied by two to fix the punitive cap.

We can also see that those with higher economic losses (medical bills or loss of income or earning capacity) will be able to recover higher punitive damages than others. Why/  The punitive damages cap based on a multiplier of two.  Thus, for an example, a person who is killed by fungal meningitis who was working will be able to recover more punitive damages (if they are warranted under the facts) than would a retired person.

In summary, those who are victims of this tragedy and whose rights are determined by Tennessee law will have less rights than they would have if they had been injured or killed before October 1, 2011 (when the new law went into effect).  These people, and their families, will now see what others are beginning just beginning to see: our General Assembly and Governor have limited the responsibility of those who cause harm to others at the expense of those who suffer the consequences of wrongful acts.  And, because of very public nature of this tragedy, perhaps the public will begin to understand what our elected officials have done to us.

Eric Turkewitz, a plaintiff’s personal injury lawyer in New York,  wrote about it first.  He told us about a plaintiff’s lawyer in New York who sought $30,000,000 for damages to a child who lost part of his ear lobe after a dog bite.

Eric was upset because this "courtroom bulldog who won’t be leashed" (according to her website) either didn’t know or didn’t care about a 9-year old law that prohibits mentioning the amount sought when filing a lawsuit.  These actions, in Eric’s view, make the job of plaintiff’s lawyers who choose to follow the law more difficult.  He is right.

Then, Max Kennerly, a plaintiff’s personal injury lawyer in Philadelphia, weighed in.  He agreed with Eric, but went on to explain that the $30,000,000 request bore absolutely no relationship to amount of the damages in the case.  Once again, I agree.

I will add this thought:  how in heaven’s name does the New York lawyer who filed this case ever expect to have a satisfied client at the end of this case?  Although we do not state an ad damnum in our complaints (except in products liability cases, where they are required by statute), trial judges will normally require us to state an amount  certain some number of months into a case.  Our view is that we will have a better feel for the case as time goes on and, when we state an ad damnum provision, it will have some basis in reality.

We take this course of action for several reasons, but mainly for our clients.  Stating an ad damnum too early will almost always result in it being higher than it should ultimately be.  Our experience is that regardless of what we say to our clients, whatever number we put in the ad damnum is a number that sticks in their heads.  And, when the number is way too high, it will often lead to dissatisfied clients.

In the New York dog bite case, the incident occurred on May 18, 2012.  The article is dated June 5, 2012, so the lawsuit was filed less than three weeks after the incident.  There is no way – no way – that any lawyer can truly evaluate that case in three weeks – before plastic surgery has been attempted to repair the damage (except for the initial surgery), before the results of any counseling have been known, and before the impact of the incident is truly known.

So, what has happened is that the plaintiff’s lawyer has, in violation of state law, stated an ad damnum that at the end of day will bear little resemble to the ultimate recovery in the case and has likely set very unrealistic expectations for the clients.   

Of course, it did have one other effect:  it got the lawyer’s name mentioned in the New York Post.  

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases.  The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited.  However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

  • there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
  • the injured person had extensive three degree burns; 
  • the injured person had two hands, two feet or one of each amputed in the wreck; or
  • in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

Damage limits do not apply when the wrongdoer was drunk or in certain other limited circumstances.

For injuries and deaths in accidents before October 1, 2011 the jury is permitted to determine the damages and there are no artifical limits.  The Tennessee business community persuaded the Legislature to limit the power of juries during the 2011 legislative session.

The applicable statute is TCA Sec. 29-39-102.

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife.  Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes.  The toes were amputated secondary to frostbite – the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium.  Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

The 7th Circuit affirmed the decision of the lower courts, holding that the debts were not dischargeable because   they  were debts “for willful  and malicious injury  by  the debtor to another entity or  to  the property of another  entity”  within  the meaning of  11 U.S.C. § 523(a)(6).

For a debt to be nondischargeable under this provision, a deliberate or intentional injury is required, not merely a deliberate or intentional act that leads to injury.  Kawaauhau v. Geiger, 523  U.S. 57, 61-62  (1998).

Larsen attempted to argue that he did not intend to cause the specific injuries suffered by his ex-wife – such as the loss of her toes.  The Court quickly rejected this argument, holding that "obviously he  intended to injure  her—he was convicted of attempted murder, after all—and the  destruction of her  toes and the miscarriage were foreseeable consequences of the intent ional torts that gave rise to  the debt he seeks to discharge."

Likewise, the debt arising from the judgment for $1.5 million in punitive damages was not dischargeable because it was " a debt consequent upon a willful and malicious injury."

Finally, Larsen argued that he should not be liable for the loss of consortium damages because he did not intend to injury his ex-wife’s husband or her children.   That argument too was rejected, the Court holding that these losses arose from his malicious conduct.  The Court explained that the Bankruptcy Code exists in part to help the "honest but unfortunate debtor," and that Larsen did not fall within that category.

This opinion serves as a good reminder of the law on this subject and, in fact, it is now the only opinion in our jurisprudence that addresses the dischargeability of loss of consortium judgments in such circumstances.

The case is Jendus-Nicolai v. Larsen, No. 11-1256 (7th Cir. April 18, 2012).

"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means.  The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.

Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year.  According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.

At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same.  When factoring in the effects  of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346. 

In the first trial, the jury awarded $148,000 for lost future damages- the jury did not break down whether the money was for loss of earning capacity or future medical expenses.

The jury verdict was reversed on a substantive law issue and remanded.  On remand, the district court excluded expert proof on the issue of lost earning capacity, claiming that it was speculative.

This time, the jury awarded only $10,000 in future economic losses.

In Andler v. Clear Channel Broadcasting, Nos. 10-3264/3266 (6th Cir. Feb. 29, 2012), the district judge was reversed.  The 6th Circuit determined that the expert testimony should have been admitted into evidence.  (Defendant sought reversal on liability grounds – those efforts were rejected.)

Andler argued that she should have been permitted to introduce expert testimony on loss of earning capacity.  Here is Ohio law on the issue:

A tort plaintiff can recover future economic damages for any loss of earning

capacity caused by her injury.  A plaintiff claiming lost earning capacity must offer sufficient proof of (1) “‘future impairment’” and (2) “‘the extent of prospective damages flowing from the impairment.’”    The measure of damages in the second step is “‘the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.’”    Because predictions about future earning potential are necessarily somewhat speculative, an exact calculation of what the plaintiff could have earned but for the injury is not required; a plaintiff must prove damages with “reasonable certainty.

The damages are awarded for loss of earning power, not simply loss of earnings.
The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned or will earn in any given year.  See id. (plaintiff must show that “the amount of wages [he] will be capable of earning over his working life after his injury is less than the amount of wages he was capable of earning over his working life before his injury”). Accordingly, the fact that a plaintiff earns a higher annual salary after an injury than she did prior to the injury does not bar her from recovering for loss of earning capacity. … ‘[T[he jury may consider the earnings of the plaintiff at the time of the injury, but the jury is not bound to accept such earnings as conclusive of his future earning power.’

[Citations omitted.]

Tennessee law is very similar to Ohio law on this subject.

The accountant expert on loss of earning capacity was excluded because he testified that Andler’s pre-injury earning capacity was higher than her actual earning capacity.  This testimony was based on BLS statistics for people of Andler’s age, education and experience.  The district judge found the expert’s testimony to be unreliable.

The appeals court rejected this basis for exclusion of the testimony:

The concern with the use of BLS averages rather than Andler’s actual historical

earnings suggests a confusion of the concepts of lost earnings and lost earning capacity. As explained above, lost earning capacity does not necessarily rely on a plaintiff’s historical earnings.  What matters is what Andler would have earned over the course of her working life, not what she earned in any given year.  Andler’s historical earnings are relevant, but the fact that she did not meet her earning capacity in the two years prior to her injury does not necessarily render Selby’s projections inaccurate or even unreasonable.  Although Andler did not work full-time before her injury, Selby’s projection that she would work full-time is not “clearly contradicted by the evidence.”  Andler testified that she took the childcare job after her divorce because it was located in the district where her children attended school and she ‘wanted things to pretty much stay the same for my kids until they got out of elementary school.’  Working at the childcare center, she was able to ‘be[] there for them before and after school.’   This testimony suggests she may have changed jobs once her children were older. Moreover, Andler had attended massage school and had worked for a chiropractor before working at the childcare center, training that could position her for a switch in career.  Finally, Andler explained that her post-injury switch to cosmetology work was “what I was already wanting to do.”

[Citations omitted.]  
The above language included this footnote:
Andler’s situation is thus somewhat akin to the case of the injured homemaker, who can recover for lost earning capacity even if he or she had never worked outside of the home prior to the injury.  Cf. 29 Am. Jur. Proof of Facts 3d 259, § 8 (2005) (“The homemaker who has never worked outside the home a day in her married life . . . is entitled to damages for lost earning capacity, if she is injured by a tortfeasor and thereby becomes unable to seek or perform work outside the home.”); William Danne, Jr., Annotation, Admissibility and Sufficiency, in Personal Injury or Wrongful Death Action, of Evidence as to Earnings or Earning Capacity from Position or Field for Which Person Has Not Fulfilled Education, Training, or Like Eligibility Requirement, 7 A.L.R. 6th 1, § 2 (2005) (“[D]amages for loss or impairment of earning capacity may be awarded to . . . an injured housewife, even if she had left employment with the intention of confining her future activities to homemaking.”

Thus, concluded the 6th Circuit, a new trial was necessary on the issue of damages.

The 6th Circuit got this one right.  Loss of earning capacity is an important element of damages in personal injury litigation.  Expert testimony about such losses in the future always includes some degree of speculation (it is the future, after all) but the jury should be permitted to weigh the testimony and determine whether the evidence supports an award of these damages.  

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

Total number?  $96, 261 per year if one includes cooking, house cleaning, child care, driving, laundry service, and lawn maintenance expenses.

I don’t know that this article can be reasonably relied upon by an expert in a Tennessee personal injury or wrongful death case, but the article does provide a nice list of the many services performed by those who choose to stay home and support the family through work in the home.



The California Supreme Court has ruled that a tortiously injured person who receives medical care for his or her injuries may recover medical expenses only in the amount that the plaintiff’s health insurer paid, not the amount charged by the health care provider but later reduced by a contract between the provider and the insurer.

Whether a plaintiff can recover the amount paid or the medical "charges" is a hot issue in tort law.  The California opinion falls on the pro-defendant side of that issue.

Plaintiffs have sought the right to claim the higher amount by invoking the collateral source rule. 
The California Court said the collateral source rule did not protect the plaintiff, because a negotiated discount – whether negotiated by the plaintiff or the plaintiff’s health insurer – means that the plaintiff has not suffered a pecuniary loss in the greater amount.

Here is the new rule in California:

[W]hen a medical care provider has, by agreement with the plaintiff‘s private health insurer, accepted as full payment for the plaintiff‘s care an amount less than the provider‘s full bill, evidence of that amount is relevant to prove the plaintiff‘s damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial.  Evidence that such payments were made in whole or in part by an insurer remains, however, generally inadmissible under the evidentiary aspect of the collateral source rule.  (Hrnjak v. Graymar, Inc., supra, 4 Cal.3d at p. 732.)  Where the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed amount is not itself relevant on the issue of past medical expenses.

The 30-page majority opinion was accompanied by a 15-page dissent. 

The opinions in Howell v. Hamilton Meat & Provisions, Inc.,  No. S179115 (Cal. S. Ct. 8/18/11) do a fine job setting out the arguments pro and con on this important issue.