2024 Transportation Law Compendium: Question 3

Though a Plaintiff may admit testimony regarding the full amount of his or her medical expenses, Alabama has a modified collateral-source rule that provides that “evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence.” Ala. Code § 12-21-45(a) (emphasis added).  But see Crocker v. Grammer, 87 So. 3d 1190, 1193 (Ala. Civ. App. 2011) (Section 12-21-45 does not “dictate any particular outcome,” but “allows a jury to make its own informed decision as to the effect” of collateral benefits.”). Under § 12-21-45(a), the Plaintiff “shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses,” i.e., evidence of medical liens.   However, the Plaintiff generally cannot introduce evidence of liens through his or her own testimony.  See, e.g., Daniels v. Kapoor, 64 So. 3d 62, 66 (Ala. Civ. App. 2010).

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Phone: (312) 642-2532

Yes, Arkansas is a collateral source state.  In Arkansas, the Courts do not consider whether expenses were actually paid; a plaintiff can “blackboard” all billed expenses.  Lienholder claims and evidence of parallel sources of reimbursement to plaintiff are typically discoverable, however testimony regarding such liens are typically excluded at trial unless the plaintiff has “opened the door” by misleading the jury.

In California, under the leading case Howell v. Hamilton Meats, a plaintiff is only entitled to recover the amount of medical expenses actually paid as opposed to the amounts billed. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.App.4th 541.) As necessary background, California’s delineation of what medical expenses are recoverable stems from the collateral source rule, which states that a tortfeasor may not benefit from the fact that a claimant has insurance. The California Court of Appeal’s decision in Hanif v. Housing Authority stands for the proposition that an injured plaintiff is to be compensated for the loss or injury sustained as a result of the tortfeasor’s action. (Hanif v. Housing Authority, (1988) 200 Cal.App.3d 635.)  However, for the injured plaintiff with medical insurance, she cannot recover more than the amount actually paid by her insurer (or others) on her behalf. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.App.4th 541.)

For the uninsured injured plaintiff, who obtains medical treatment via a lien arrangement, the full billed amount is relevant and admissible as evidence in support of economic and noneconomic damage claims, with the caveat that the plaintiff must present an expert qualified to render an opinion as to the reasonable value of the medical treatment. (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311.) Once a Plaintiff has established the amount of treatment, it is incumbent on the defense to establish through expert testimony that the treatment or charges are unreasonable. To avoid reductions, plaintiffs have begun to seek treatment outside of their insurance plan so that they can present their medical specials at (often inflated) retail rates without subsequent reduction.

The Pebley decision allows plaintiffs to go outside their insurance plan to seek treatment. (Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App5th 1566.) In 2021, the California Court of Appeal decided Qaadir v. Figueroa et al., extending the application of Howell and Pebley to unpaid medical bills, including full amounts of liens, as evidence of the reasonable value of plaintiff’s past medical treatment. (Qaadir v. Ubaldo Gurrola Figueroa et al. (2021) 67 Cal.App.5th 790.) On the bright side for defendants, the California Supreme Court held in Qaadir that “the referral evidence [between the plaintiff’s attorney and the lien-physician] was relevant to the question of the reasonable value of the lien-physicians’ medical care because it may show bias or financial incentives on the part of the lien-physicians.” (Id. at 808.)

Pursuant to Colorado’s collateral source rule, plaintiffs are permitted to present the entire “billed” amount of medical expenses and evidence of discounted amounts actually “paid” by insurance is inadmissible.  This rule was originally created by the Colorado Supreme Court and was subsequently codified by the legislature.[i] Likewise, evidence regarding medical liens is inadmissible and generally beyond the scope of discovery. However, defendants may challenge the reasonableness and necessity of medical expenses without referring to discounted amounts “paid” by insurance.[ii]

[i] See C.R.S. § 10-1-135(10)(a)(“The fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against an alleged third-party tortfeasor”). 

[ii] See Volunteers of Am. Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1087 (Colo. 2010) (“[U]nder the collateral source rule, the plaintiff’s damages are not limited to the amount paid by her insurer, but may extend to the entire amount billed, provided those charges are reasonable expenses of necessary medical care.” “[T]he trial setting is the proper forum for the parties to present evidence regarding the proper value of an injured plaintiff’s damages”). (emphasis added).

The Plaintiff is entitled to enter the medical bill in evidence and board the total expense. Post verdict the defendant is entitled to a collateral source offset for the paid amount.

The plaintiff will be entitled to recapture the cost associated with securing the coverage.

Finally, if the carrier maintains lien rights against the plaintiff, no offset is available.

Evidence related to any medical lien would be inadmissible.

Under Delaware law, a person eligible for Personal Injury Protection benefits is precluded from introducing those amounts paid into evidence at trial. 21 Del. C. § 2118. This does not apply when benefits are paid through worker’s compensation. Moore v. McBride, 2001 WL 985115 at *2 (Del. Super. Aug. 21, 2001). Furthermore, under the collateral source rule, courts will not exclude the full amount of the medical bills from trial even though some may have been written off. Mitchell v. Haldar, 883 A.2d 32, 40 (Del. 2005). The collateral source rule holds that “a tortfeasor cannot reduce its damages because of payments or compensation received by the injured person from an independent source.”  Stayton v. Delaware Health Corp., 117 A.3d 521, 527 (Del. 2015) (citation omitted). Under Delaware law, however, both Medicare and Medicaid “write-offs” are no longer “boardable” as special damages in a personal injury action. See Stayton v. Delaware Health Corp., 117 A.3d 521 (Del. 2015). This rule applies to future damages that could be covered by Medicare and/or Medicaid as well. Russum v. IPM Dev. P’ship LLC, 2015 WL 4594166 at *3 (Del. Super. July 15, 2015). These cases have not yet been extended to third-party insurers or self-insureds, and Delaware continues to apply the collateral source rule to non-Medicare/Medicaid provider write-offs as it does to third party payments. Id. at 529; see, e.g., Mitchell v. Haldar, 883 A.2d 32 (Del. 2005); Onusko v. Kerr, 880 A.2d 1022 (Del. 2005).

For causes of action accruing before March 24, 2023, Florida courts permit plaintiffs to offer evidence of the gross amount of the charges for medical care as long as the bills were not paid by a charitable or governmental source. Further, the defense was not permitted to offer evidence of lesser payments, for example, that private insurance paid those medical bills at substantially discounted rates.Yet, statutory changes effective on March 24, 2023 (“Florida’s Tort Reform”), apply to payments for past medical care, unpaid medical bills, and the costs of future medical care^[i] in personal injury or wrongful death cases accruing on or after March 24, 2023.^[ii]  The changes provide limitations on the introduction of evidence of the amount of medical bills actually paid, regardless of the payment’s source. Specifically, evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid. This evidentiary standard is applicable even if the satisfied medical bills were satisfied at a reduced rate, whether by private insurer, government program, or another payor.^[iii]

However, in evidencing unpaid past medical bills, the new statute also contains language allowing “evidence of reasonable amounts billed […] for medically necessary treatment or medically necessary services”. As such, plaintiffs will likely argue the subjective standard of reasonableness in an effort to have the full amount of unpaid medical bills deemed admissible. Nevertheless, for past medical bills that remain outstanding the new statute permits allows introduction of  evidence of the amount the insurer must pay, as well as the co-pay obligation or other personal contribution such as deductibles required under the policy. Further, if plaintiffs choose to fund medical care through a letter of protection, evidence of the amount the plaintiffs’ health care coverage would pay the health care provider to satisfy the past unpaid medical charges under the insurance contract or regulation is admissible, as is the plaintiffs’ share of medical expenses under the insurance contract or regulation, had they obtained medical services or treatment pursuant to the health care coverage. If plaintiffs do not have health insurance, or have Medicare or Medicaid, then 120% of the Medicare reimbursement rate is admissible, but if there is no rate on the date of the incurred medical treatment, then 170% of the Medicaid rate is admissible.^[iv]

Additionally, in what is arguably the most significant statutory change, plaintiffs must now disclose the existence of letters of protection, along with other pertinent information, such as the existence of health insurance at the time of treatment and the identity of such coverage. Section 768.0427, Fla. Stat. Ann. (3)(a-e) sets forth the detailed list of what must be disclosed. Equally importantly, such disclosures are now admissible.

As to evidence regarding future medical care, statutory changes allow for a wider range of admissibility for both plaintiffs and defendants. If plaintiffs have healthcare coverage other than Medicare or Medicaid, or are eligible for any such health care coverage, evidence of the amount for which future charges could be satisfied if submitted to such coverage is admissible. If plaintiffs do not have health care coverage, or have health care coverage through Medicare or Medicaid (or are eligible for the same), evidence of 120% of the Medicare reimbursement rate in effect at the time of trial is admissible. If there is no applicable Medicare rate for a service, 170% of the corresponding Medicaid rate is deemed admissible. However, the statutory change also allows for admission of “any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services.” Accordingly, the effects of this catchall inclusion again create a largely subjective standard, the true meaning of which will be interpreted by courts in the years to come.

[i] See § 768.0427 (2), Fla. Stat. Ann.

[ii] See Dial v. Calusa Palms Master Ass’n, Inc., 337 So. 3d 1229, 1231 (Fla. 2022).

[iii] See § 768.0427 (2)(a), Fla. Stat. Ann. (“Evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment.”).

[iv] See § 768.0427(2)(b)(3), Fla. Stat. Ann. (“If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, evidence of 120 percent of the Medicare reimbursement rate in effect on the date of the claimant’s incurred medical treatment or services, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate.”)

Georgia law provides that “evidence of the amount of medical bills may be admissible on a claim of pain and suffering to show the seriousness of an injury.” Warren v. Ballard, 266 Ga. 408, 410 (1996) (citing Melaver v. Garis, 110 Ga. App. 267 (1964)). Georgia law also allows testimony regarding the reasonableness and necessity of medical bills. See Allen v. Spiker, 301 Ga. App. 893 (2009) (finding that “in order to recover his medical expenses in excess of those admitted by [the defendant], [the plaintiff] had to prove that such expenses resulted from the collision and were reasonably necessary.”). Thus, testimony at trial of the full amount of medical bills is permitted under Georgia law.

As to testimony regarding medical-legal liens, in Georgia, a medical provider is given a lien for the reasonable charges of its care and treatment of an injured person against all causes of action accruing to that person on account of their injuries, and establishes a process for the hospital to perfect its lien for the amount claimed to be due. See O.C.G.A. §§ 44-14-470, 44-14-471. As a result, Georgia allows discovery regarding the reasonableness of medical bills and charges to challenge or invalidate a hospital lien. See Bowden v. Medical Ctr., Inc., 297 Ga. 285, 286 (2015) (“where the subject matter of a lawsuit includes the validity and amount of a hospital lien for the reasonable charges for a patient’s care, how much the hospital charged other patients, insured or uninsured, for the same type of care during the same time period is relevant for discovery purposes.”).

For example, in WellStar Kennestone Hosp. v. Roman, a personal injury defendant was allowed to question a non-party medical provider, WellStar Kennestone Hospital, regarding the hospital’s rates or charges for services when those services were provided to uninsured patients, insured patients, patients under workers compensation plans, patients with Medicare or Medicaid plans, and to litigant and non-litigant patients. WellStar Kennestone Hosp. v. Ronan, 344 Ga. App. 375, 376 (2018). In that case, the court upheld that the trial court’s holding that there is no authority in Georgia law to support the hospital’s contention that the collateral source rule bars the “discovery of medical rates and charges of third parties that are not involved in the case.”  Id. at   377. However, the court also noted that the issue before the court was not whether “the information sought is relevant and admissible at trial”. Id. at 378.

Nevertheless, testimony regarding a medical lien would likely be admissible to show that a treating physician has financial interest in a lawsuit. See Stephens v. Castano-Castano, 346 Ga. App. 284, 291 (2018) (physical precedent only) (finding a treating provider’s “financial interest in the outcome of the case is highly relevant to the issue of his credibility and potential bias, as [the treating provider] has become an investor of sorts in the lawsuit…[t]hus, [the treating provider] has a financial motivation to testify favorably for [the plaintiff], and the probative value of this testimony outweighs its prejudicial effect.”); see also O.C.G.A. § 24-6-622 (“[t]he state of a witness’s feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury.”). Thus, testimony regarding the medical bills and chares comprised by a medical lien is likely admissible under Georgia law to show the bias of a treating physician holding such a lien.

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Phone: (312) 642-2532

Illinois employs a “reasonable value” approach whereby a plaintiff may recover the entire amount billed, provided the plaintiff establishes the proper foundational requirements to show the bill’s reasonableness. Wills v. Foster, 229 Ill. 2d 393 (2008). The leading and most difficult case for defense attorneys in Illinois is the Wills case, which holds that plaintiffs can collect the full amount of a bill even if only partially paid. The court held that the collateral source rule prohibits defendants from informing the jury that the medical care provider settled for less than the full amount of the bills. The reasoning includes a comment that defendant should not get the benefit of the reduced charges because of the collateral source rule. Thus, a plaintiff may recover sums of money which he or she is not obligated to pay.

The decision of Perkey v. Portes-Jarol, a Second District Case, provides some hope that a Defendant will be entitled to a set-off in cases where the injured Plaintiff had insurance which paid a portion of the bills. 2013 IL App (2d) 120470. The court held that Section 2-1205 of the Code of Civil Procedure modifies the collateral source rule such that a defendant is entitled to a set-off for medical bills which have been paid by an insurer or fund, at a reduced level, to the extent of that reduction. In other words, if the total bill is $100,000.00 and the health insurer pays $40,000.00 to fully satisfy the charges, the remaining $60,000.00 should be set-off from the judgment. The trial court in that case, like most judges in Cook County in the past, refused any set-off finding that no set-off was allowed because the health insurer had a right to recoupment, i.e., a subrogation right. As virtually every health insurance policy has a subrogation clause, the right to a set-off was pretty much non-existent.  The Perkey decision puts some teeth back into the statute. However, a more recent decision from the Fourth District Appellate Court rejects the Perkey analysis and holds that no set-off is allowed even where the bills have been written off and Plaintiff does not have to pay the written off amounts. See Miller v. Sara Bush Lincoln Health Ctr., 2016 IL App. (4th) 150728. Whether our liberal Supreme Court will allow this interpretation to prevail, especially since it contradicts Wills and Miller, remains to be seen.

Indiana allows testimony of both the full amount of billed medical expenses and the paid amount [which is the “net” after adjustments by either public or private insurance as well as any provider write-offs] – the jury then decides how to utilize these figures.

In 2009, the Indiana Supreme Court in Stanley v. Walker, reversed a trial court’s decision holding regarding the admissibility of both the full amount of medical bills and the paid amount, regarding a motor vehicle accident resulting in a trial, in which Plaintiff introduced his total medical bills showing the amounts the medical service providers originally billed him. 906 N.E.2d 852 (Ind. 2009).

At the close of Plaintiff’s testimony, Defendant asked the trial court to admit Plaintiff’s discounted medical bills, to which Plaintiff objected to under Indiana Code 34-44-1-2, which prohibited the introduction of evidence of “insurance benefits” in cases involving personal injury. The trial court sustained the objection. After the jury returned a verdict in favor of Plaintiff.

Defendant appealed both the trial court’s decision and a Court of Appeals decision, affirming the trial court. Thus, holding where reasonableness of medical expenses is a non-issue, medical bills may be introduced under Indiana Evidence Rule 413 as prima facie evidence of the reasonable amount of medical expenses in order to determine damage, and allowing both the full amount and paid amount of medical expenses are both admissible.

Additionally, per Ind. Code 32-33-4-1, medical liens are also admissible at trial. [1]

[1] See also Parkview Hosp. v. Riggs, where the court held that evidence of discounts provided to patients who either have private health insurance or are covered by government healthcare reimbursement programs is relevant and admissible under the Indiana Hospital Lien Act. 52 N.E.3d 804 (Ind. Ct. App. 2016).

Iowa allows plaintiffs to recover expenses for “necessary” medical care, but only to the extent that the medical expenses are “reasonable.” Iowa Code 668.14 (2024); Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa 2004). As of 2020, this item of damage is now capped at the amounts actually paid. See Iowa Code § 668.14A(1) (2024) “I(n an action brought to recover damages for personal injury, the damages that may be recovered by a claimant for the reasonable and necessary cost or value of medical care rendered shall not exceed the sum of the amounts actually paid by or on behalf of the injured person to the health care providers who rendered treatment and any amounts actually necessary to satisfy the medical care charges that have been incurred but not yet satisfied.”)

Regardless, section 668.14A does not preclude defendants from arguing that an amount actually paid was not “reasonable.” Iowa case law requires defendants who wish to dispute the reasonableness of a paid medical charge to do so through expert testimony. See Pexa, 686 N.W.2d at 156 (“The reasonable value of medical services can be shown by evidence of the amount paid for such services or through the testimony of a qualified expert witness”) (emphasis added).  Based on this requirement, this author’s strategy in situations where amounts paid are suspected to be “unreasonable” is to retain a local or regional expert with sufficient experience in the relevant medical billing field in that region to allow him or her to opine on the unreasonableness of the paid medical expenses at issue. The opposing party can counter this testimony by introducing evidence of the amount actually paid. See Id. at 157.

As Iowa has adopted the collateral source rule, evidence of payments made pursuant to any federal program for an injured person’s actual economic loss is precluded. See Id. at 156.

Kansas has adopted the majority position employing the “reasonable value of services” approach when it comes to medical expenses.  Martinez v. Milburn Enters., Inc., 290 Kan. 572, 233 P.3d 205 (2010).  Under this approach, evidence of the “original amount billed” and the “amount accepted . . . in full satisfaction of the amount billed” may both be admitted in evidence for the jury to consider as relevant to determining the reasonable value of the medical services provided to plaintiff, and the collateral source rule does not bar such evidence.  Id. at 611–12.  Kansas Courts have not specifically addressed the issue of medical legal liens.

Kentucky laws allow testimony at trial of the full amount of medical bills, but not testimony about the existence of medical-legal liens.  Kentucky has adopted the collateral source rule.  Baptist Healthcare Systems v. Miller, 177 S.W.3d 676, 682-684 (Ky. 2005).  Pursuant to this rule, a plaintiff is allowed to seek recovery for the reasonable value of medical services for an injury without consideration of insurance payments made on behalf of the injured party.  Id. at 682.  Therefore, the total amount billed is generally admissible and discoverable as evidence of the value of medical services provided.  The amount paid by insurance, lienholder, or any other collateral source is not admissible but may be discoverable.  Chrispen v. USA, Case No. 7:16-cv-00132-ART-EBA (E.D. Ky. Jan. 25, 2017) (collateral source rule does not govern discoverability of amounts paid, only admissibility).

Yes, the full amount of medical bills is allowed to be presented to a jury. However, in certain circumstances, the amount recovered by the claimant can be reduced to the amount actually paid by a health insurer or Medicare via post-trial motions.

Effective January 1, 2021, Louisiana’s legislature instituted the Civil Justice Reform Act of 2020 in an attempt to curtail the quickly rising insurance rates across the state by limiting the windfall being received by plaintiffs who were previously able to recover the full amount billed, even if all bills were significantly reduced when paid by health insurance or Medicare. La. R.S. 9:2800.27 is the codified version of this legislation.

Part of that legislation involved limiting a plaintiff’s recovery to the amount paid by a collateral source, such as health insurance or Medicare, rather than the full amount billed. However, the statute also provides that a court shall award a plaintiff 40% of the difference between the amount billed and the amount paid, “if the award is not unreasonable.” Since the enactment of this statute, there are no reported cases establishing what makes the 40% award, above the amount actually paid, either reasonable or unreasonable. La. R.S. 9:2800.27(B).

La. R.S. 9:2800.27 differentiates between Medicaid and health insurance or Medicare. Subsection C mandates that when the plaintiff’s past medical expenses have been paid in whole or in part by Medicaid, then the Plaintiff’s recovery can only be for the expenses actually paid by Medicaid to the medical provider. La. R.S. 9:2800.27(C).

Similarly, subsection E of 9:2800.27 mandates that when a plaintiff’s past medical expenses have been paid pursuant to Louisiana Workers’ Compensation Law, then the plaintiff’s recovery of past medical expenses is limited to the amount paid under the medical payment fee schedule. La. R.S. 9:2800.27 (E).

Lastly, when a plaintiff’s past medical expenses are paid by another source other than a health insurer, Medicare, or Medicaid, then the recovery of those past medical expenses is limited to the amounts paid to a medical provider by or on behalf of a Plaintiff, as well as the amounts remaining owed to a medical provider, including expenses secured by a contractual or statutory privilege, lien, or guarantee. La. R.S. 9:2800.27(D). Sources included in Subsection D would include self-pay by the plaintiff, or by the plaintiff’s attorney, and/or by a third-party medical finance company. Significantly, recovery of past medical expenses under this provision is limited to amounts remaining owed to a medical provider versus amounts a plaintiff would allegedly owe a third-party medical finance company. As such, Subsection D therefore emphasizes the importance of engaging in discovery to determine the amounts paid to the medical provider.

La. R.S. 9:2800.27 also governs what evidence can and cannot be presented before a jury. Specifically, medical liens are not to be admitted before the jury. The jury shall be informed only of the amount billed by a medical provider for medical treatment. Whether any person, health insurance issuer, or Medicare has paid or has agreed to pay in whole or in part, any of a claimant’s medical expenses shall not be disclosed to the jury. In a jury trial, only after a jury verdict is rendered may the court receive evidence related to the limitations of recoverable past medical expenses provided herein. Conversely, in a bench trial, the court may consider such evidence.

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Under Maryland law, both paid and unpaid medical bills can be introduced through testimony in order to establish the existence or extent of a plaintiff’s damages. It should be noted, however, that a plaintiff will typically need to provide expert testimony that the plaintiff’s medical bills were reasonable, fair, and necessary for those bills to be admitted into evidence to support an award of special damages.[i] In actions for less than $30,000.00, however, medical bills produced under certain procedures prior to trial can be admitted without the support of a health care provider’s testimony as evidence of the amount, fairness, and reasonableness of the charges for the services or materials provided.[ii]

Additionally, it is pertinent to note that Maryland follows the collateral source rule, which “permits an injured person to recover the full amount of his or her provable damages, regardless of the amount of compensation which the person has received for his [or her] injuries from sources unrelated to the tortfeasor.”[iii] The rule generally provides that payment by a collateral source to a plaintiff for items of damage cannot be set up by the tortfeasor as mitigation or as a reduction of damages.

Hence, under Maryland law, the collateral source rule “generally prohibits presentation to a jury of evidence of the amount of medical expenses that have been or will be paid by health insurance.”[iv] Under this rule, a plaintiff generally may seek to recover the full, reasonable value of the medical services rendered to them.[v]

However, there are several exceptions. For example, collateral source evidence may be admissible where there is “evidence of malingering or exaggeration” on the part of a plaintiff,[vi] or to rebut a plaintiff’s misleading claim of impoverishment.[vii]  In addition, for medical malpractice cases, evidence and testimony is allowed to bypass the collateral source rule and the amount of medical bills that has actually been paid or will be paid can be assessed.[viii]

Testimony regarding medical liens is only admissible for attorney disciplinary proceedings, where the attorney’s conduct is being evaluated on their failure to pay outstanding medical liens and/or actions in transferring the funds intended for the liens to themselves.[ix]   

[i] See, e.g., Desua v. Yokim, 137 Md. App. 138, 143-44 (2001). 

[ii] See Md. Code, Cts. & Jud. Proc. § 10-104.

[iii] Lockshin v. Semsker, 412 Md. 257, 284-85 (2010).

[iv] Id.

[v] See id.; Haischer v. CSX Transp., Inc., 381 Md. 119, 132 (2004); see accord Motor Vehicle Admin. v. Seidel, 326 Md. 237, 253, 604 A.2d 473, 481 (1992) (“Payments made or benefits conferred by other sources are known as collateral-source benefits. They do not have the effect of reducing the recovery against the defendant.”).

[vi] See Kelch v. Mass Transit Admin., 42 Md. App. 291, 296 (1979), aff’d, 287 Md. 223 (1980).

[vii] See Abrishamian v. Barbely, 188 Md. App. 334, 346 (2009).

[viii] Md. Code Ann., Cts. & Jud. Proc. § 3-2A-05(h).

[ix] See Attorney Grievance Comm’n of Maryland v. Mungin, 439 Md. 290, 312, 96 A.3d 122, 134 (2014).

In Massachusetts the plaintiff is allowed to enter into evidence the full amount of the medical bills related to the incident.

Yes. The total amounts of medical bills may be presented at trial, if support for the reasonableness of the charges is also presented.

• MCL 600.6303 provides a post-verdict reduction of damages for medical expenses that were paid by a collateral source.
• Exception: Medical Malpractice actions: MCL 600.1482
  • Limits evidence to “actual damages”:
    • The amounts actually paid by or on behalf of patient (including insurance)
      • Excludes any contractual discounts, price reductions, or write-offs by any person
    • Any remaining dollar amount that the plaintiff is liable to pay for the medical care

Evidence of the full medical expenses billed to the plaintiff are admissible at trial, while evidence of the actual amount of medical expenses paid is not.  See Swanson v. Brewster, 784 N.W.2d 264, 281-82 (Minn. 2010) (citing Minn. Stat. § 548.251, subd. 5).  A jury “shall not be informed of the existence of collateral sources or any future benefits which may or may not be payable to the plaintiff.”  Minn. Stat. § 548.251, subd. 5. 

Mississippi recognizes the collateral source rule which provides that compensation received by a plaintiff from a collateral source, wholly independent of the wrongdoer, cannot be used by a defendant in mitigation or reduction of damages.  Burr v. Mississippi Baptist Medical Center, 909 So. 2d 721 (Miss. 2005). However, the rule is not absolute.  “If evidence is introduced for a purpose other than to mitigate damages, the collateral source rule is not violated, and the evidence may be admitted.”  Burr, 909 So. 2d at 729. 

Under current Mississippi law, a plaintiff may recover for expenses written off by healthcare providers.  Mississippi courts have recognized this as a form of the collateral source rule.  Williams v. Manitowoc Cranes, LLC, 216 U.S. Dist. LEXIS 3553 (S.D. Miss. January 12, 2016); Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001).   

Mississippi allows the plaintiff to submit evidence of incurred medicals to the jury.  McCary v. Caperton, 601 So. 2d 866 (Miss. 1992).  Plaintiff can “board” the face amount of the bills regardless of adjustments/amount actually paid.  Miss. Code Ann. Section 41-9-119 establishes a rebuttable presumption that the face amount of the bills are reasonable and necessary medical expenses incurred by plaintiff.  A defendant is entitled to “rebut the necessity and reasonableness of the bills, and the ultimate question is for the jury to determine.”  Herring v. Poirrier, 797 So. 2d 797, 809 (Miss. 2000).  Defendants in Mississippi are increasingly retaining medical billing experts to audit the face amount of medical bills and testify that the face amounts are unreasonable and have no relation to the cost of the service performed nor to the expected payment.    

R.S.Mo. §490.715.5 controls the introduction of evidence regarding the value of medical treatment at trial.  When first adopted in 2010, the statute created a rebuttable presumption that the amount paid represented the reasonable value of medical services that were recoverable by a plaintiff.  However, the presumption was easily rebuttable.  In 2017, the statute was revised:

5. (1) Except as provided in subsection 2 of this section, parties may introduce evidence of the actual cost of the medical care or treatment rendered to a plaintiff or a patient whose care is at issue. Actual cost of the medical care[*2] or treatment shall be reasonable, necessary, and a proximate result of the negligence or fault of any party.

(2) For purposes of this subsection, the phrase “actual cost of the medical care or treatment” shall be defined as a sum of money not to exceed the dollar amounts paid by or on behalf of a plaintiff or a patient whose care is at issue plus any remaining dollar amount necessary to satisfy the financial obligation for medical care or treatment by a health care provider after adjustment for any contractual discounts, price reduction, or write-off by any person or entity.

Id. 

Despite a commonsense reading of the statute suggesting only the amount paid is recoverable, the Missouri Court of Appeals has interpreted the statute differently.  It held that although the statute states a party “may” introduce evidence of the actual cost (i.e. the amount paid), nothing in the statute precludes the introduction of evidence of the amount billed.  Brancati v. Bi-State Dev. Agency, 571 S.W.3d 625, 635 (Mo.Ct.App. 2018).  Thus, both evidence of the amount billed, and the amount accepted as payment are generally introduced, and the jury must award such sum as it believes is fair and reasonable to compensate a plaintiff for its medical expenses.

Under Mont. Code Ann. sec. 27-1-308, an injured Plaintiff may not seek recovery of medical expenses that were written off due to contractual discount, price reduction, disallowance, gift, write off, or otherwise not paid. Stated simply, an injured Plaintiff may only recover the reimbursed amount, not the billed amount if the billed amount has been written off. These statutory amendments went into effect in 2021. Prior to the amendment the rule is the same. Gibson v. United States, 499 P.3d 1165.

Generally, parties may offer any evidence concerning medical expense related damages, subject to the standard Nebraska Rules of Evidence and Discovery. Specifically, the full amount of medical bills is admissible. Neb. Rev. Stat. § 52-401 (stating that the measure of damages for medical expenses in personal injury claims is the private party rate, not the discounted amount).

Nebraska has, however, adopted the collateral source rule, making evidence of any discounts to medical bills by independent sources, such as health insurance, inadmissible. As such, plaintiffs put on evidence of the retail value of their medical expenses. Strasburg v. Union Pac. R.R. Co., 286 Neb. 743, 839 N.W.2d 273 (2013). In some cases, plaintiffs have elected not to introduce medical expenses as evidence. In these situations, defendants may seek to offer the medical expenses. There have been mixed results in the courts, though in our experience, courts have deemed a defendant’s offer of plaintiff’s medical expenses relevant evidence to the issues at hand, and therefore allowed for the evidence to be introduced.

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There is a split of authority on this issue among the trial courts of New Hampshire.  Some trial judges allow only the amount of the medical bill actually paid, while some find the so-called “negotiated rate” between the insurance carrier and the provider to be inadmissible pursuant to the collateral source rule.  There is no governing Supreme Court precedent.  There is no basis for post-verdict reductions or offsets of medical expenses proven by the evidence.

Although the New Hampshire Supreme Court has not provided definitive guidance on this issue, parties are unlikely to have much success in obtaining the amounts actually charged and accepted by a healthcare provider for certain procedures, outside of a particular personal injury.  Seeking such documents as insurance contracts with healthcare providers often attracts the objection of those third parties and, particularly with respect to trial judges who do not allow evidence of the amount of medical bills actually paid, courts may find such discovery not relevant to a given action.

However, if possible, the better practice is to obtain discovery of amounts actually paid v. amounts billed.  In addition, the better practice is to raise as an affirmative defense that allowable damages for medical expenses are limited to the amount actually paid.

While not yet addressed specifically by New Hampshire courts, the same result is likely with respect to medical-legal liens.  Such evidence is likely barred by the collateral source rule and at least one trial court in New Hampshire has determined that medical-legal liens do not rise to a level of relevance sufficient to trigger their discoverability.  See Michaud v. Bridges, No. 07-C-055, 2008 WL 4829387 (N.H. Super. Ct. June 30, 2008).  That said, it is not uncommon for counsel to disclose the existence of any liens for the purposes of settlement negotiations.

The total amount of medical bills is admissible into evidence. Dias v. A.J. Seabra’s Supermarket, 310 N.J. Super 99 (App. Div. 1998) sets forth the procedure for the introduction of medical bills into evidence. The total amount of the medical bills incurred are introduced into evidence, subject to sufficient proof that they are reasonable, necessary, and causally related to the subject accident. Where a jury verdict awards those medical bills as an item of special damages, the trial court molds the awarded amount based upon payments made by collateral sources and any remaining out-of-pocket losses. Thomas v. Toys “R” Us, Inc.,282 N.J. Super 569 (App. Div. 1995). There are currently no rules regarding testimony at trial about medical-legal liens.

This remains an undecided issue and hotly disputed in virtually all cases. New Mexico does not have a definitive ruling on this matter and there are conflicting state court rulings. The issue is currently dependent on the trial judge and their inclination on the issue.

New Mexico retains the collateral source rule, which provides that payments made to, or benefits conferred on, an injured party from a collateral source are not credited against the tortfeasor’s liability. See Prager v. Campbell County Mem. Hosp., 731 F.3d 1046, 1058–59 (10th Cir. 2013). As recently as 2013, the New Mexico Supreme Court held that the “collateral source is an exception to the rule against double recovery.” See Sunnyland Farms, Inc. v. Central New Mexico Elec. Co-op., Inc., 2013-NMSC-017, ¶48, 301 P.3d 387. 

The Tenth Circuit somewhat recently held that hospital defendants in a medical malpractice case could not benefit from discounts or write-offs of reduced medical bills that came as a direct result of negotiations between the plaintiff’s medical providers and Worker’s Compensation.  See Prager, 731 F.3d at 1058–59. The court in this case quoted the Restatement (Second) of Torts, Section 920A, comment b, in stating that “[t]he law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him.” Id. at 1059. This does not bode well for defendants hoping to rely on the amount actually paid, at least as far as federal cases in New Mexico go. Indeed, in 2018, a New Mexico federal court sitting in diversity quoted the Prager opinion when it ruled that evidence of write-offs should be excluded “so as to safeguard the collateral source doctrine and avoid jury confusion.” Williamson v. Metro. Prop. & Cas. Ins. Co., No. 1:15-CV-958 JCH/LF, 2018 WL 1787510 (Apr. 12, 2018 D.N.M.).  The court stated that it predicted New Mexico appellate courts would apply the collateral source rule, but optimistically, it did acknowledge that New Mexico appellate courts “have yet to address whether the collateral source rule bars evidence of the amount the Plaintiff’s medical provider wrote off of the medical bills pursuant to an agreement with Plaintiff’s health insurer.” Id. Also of note is that the court explicitly ruled that the defendant could still introduce evidence of the reasonable value of medical services and could question the records custodian about the practice of inflating medical invoices. 

New Mexico does not have a definitive ruling on this matter and there are conflicting state court rulings. In 2013, a court in Taos, NM, held that the amount of medical bills actually paid was the appropriate amount to be submitted to the jury. See De Anne Santistevan v. Taos Municipal School Dist., No. D-820-CV-2011-00156 (Eighth Judicial Dist., Taos County). In 2009, a court in the Sixth Judicial District granted defendant’s motion to limit evidence of plaintiff’s medical expenses to the amounts actually paid by the insurer. See Daniel Flores v. Prasad Podila, M.D., No. CV-2009-00144 (Sixth Judicial Dist., Grant County).

In every case, plaintiffs argue for the amount billed and defendants argue for the amount actually paid.  Most often, the amount billed is what a jury sees.

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Under Rule 414 of the North Carolina Rules of Evidence, the admissible medical expenses are the amounts actually paid to satisfy the bill, regardless of the source of payment, and/or the amounts actually necessary to satisfy the bills that have not been paid.  This rule deviates from the common law collateral source rule followed by a majority of states which prohibits the admission of evidence that a plaintiff received compensation from some other source other than the damages sought against the defendant.  

The rule’s applicability in federal court depends on whether the federal courts view the North Carolina statute as substantive rather than procedural.  To date, North Carolina federal courts have followed Rule 414 in the following instances:

Sigmon v. State Farm, where a federal court in North Carolina prohibited the admission of evidence of billed medical expenses, mentioning in a footnote that “[t]he application of Rule 414 may affect the outcome of litigation and is substantive North Carolina law.”  2019 WL 7940194, at *1, n.1 (W.D.N.C. 2019).  Although none of the medical bills had been paid, the medical providers wrote off substantial portions of the bills. Plaintiff was prohibited from entering evidence of the written off expenses, despite Plaintiff’s argument that amount written off should come into evidence to corroborate his testimony about the extent of his injuries and his pain and suffering.

Verma v. Walmart, Inc., 2023 WL 6516921 (2023), where the court granted defendants’ motion in limine to preclude the plaintiff from presenting evidence of medical expenses prohibited by North Carolina Rule of Evidence 414.  Carmely v United States, 2023 WL 2314873 (2023)(docket entry granting defendant’s motion in limine).

Medical-legal liens are generally admissible.

North Dakota district courts are split on whether testimony of the full amount of medical bills is permitted or whether testimony is limited to the amount of medical bills actually paid. The amount actually paid, or the liability incurred, is evidence which can go to the jury to assist in determining the reasonable value of the medical services. See Klein v. Harper, 186 N.W.2d 426, 432 (N.D. 1971); see also N.D.J.I.-Civil 70.35. However, in tangentially addressing the issue, the North Dakota Supreme Court has signaled that courts should permit testimony as to the full amount of medical bills. See Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 340 (N.D. 1993).

The North Dakota Supreme Court has not addressed the admissibility of testimony concerning a medical-legal lien.

Yes, Ohio courts allow testimony at trial of the full amount of medical bills; however, in response, the defendant may offer evidence of the amount paid – these are the only items you can introduce. Well-established Ohio Supreme Court authority permits evidence at trial of both the original medical bills rendered and the amount accepted as full payment to prove the reasonableness and necessity of charges rendered for medical care. Robinson v. Bates, 112 Ohio St.3d 17 (2006); Jaques v. Manton, 125 Ohio St.3d. (2010). Further, R.C. 2315.20(A) provides that “[i]n any tort action, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury, death, or loss to person or property that is the subject of the claim upon which the action is based, except if the source of collateral benefits has a mandatory self-effectuating federal right of subrogation, a contractual right of subrogation, or a statutory right of subrogation . . . .”

Although expert testimony is not required to establish the foundation for the introduction of past medical bills, the Fifth District Court of Appeals allowed a plaintiff to testify as to his injuries and medical treatments. Turner v. Progressive Ins. Co., 5th Dist. Holmes No. 2007 CA 015, 2008-Ohio-4988.

Under certain circumstances, Oklahoma does not allow testimony at trial of the full amount of medical bills. Okla. tit. 12, § 3009.1(A) states:

Upon the trial of any civil action arising from personal injury, the actual amounts paid for any services in the treatment of the injured party, including doctor bills, hospital bills, ambulance service bills, drug and other prescription bills, and similar bills shall be the amounts admissible at trial, not the amounts billed for such expenses incurred in the treatment of the party.

If a lien has been filed, bills in excess of the amount paid will be admissible, but only up to the amount of the lien. (Okla. tit. 12, § 3009.1(A)).

Oregon allows testimony at trial of the full amount of medical bills.  Plaintiffs are entitled to recover damages for reasonable medical expenses incurred for treatment, regardless of whether they have actually paid for or become obligated to pay these expenses.  White v. Jubitz Corp., 347 Or. 212, 234, 219 P.3d 566 (2009).  In White, the court held that, in a personal injury action to recover medical expenses, the plaintiff could recover “the reasonable value of the medical expenses for which he was billed and which were necessary to treat his injuries.”  Id. at 243. 

Medical-legal liens are not admissible at trial but are subject to a post-verdict offset under Oregon’s collateral source rule.  Or. Rev. Stat. 31.580(1).  The statute allows (but does not require) a trial court to subtract the value of collateral benefits from the damages award.  White v. Jubitz Corp., 347 Or. at 234.  However, by the terms of Or. Rev. Stat. 31.580(1), courts are precluded from subtracting certain sources of collateral benefits, including benefits which the plaintiff is required to repay, life insurance or other death benefits, and some other insurance benefits.  Evidence of these benefits and the cost of obtaining it is not admissible at trial.  Or. Rev. Stat. 31.580(2).

No. Testimony regarding medical bills is limited to only the amount of medical expenses actually paid, rather than amounts billed. Moorhead v. Crozer Chester Medical Center, 765 A.2d 786, 789 (Pa. 2001). However, testimony regarding the amount of medical expenses paid is permissible, regardless of whether those expenses have been paid by the plaintiff’s insurance. Abed-Rabuh v. Hoobrajh, 2019 U.S. Dist. LEXIS 177189 (W.D. Pa. Jul. 2, 2019). This testimony is admissible as a component of economic damages, and not as evidence of pain and suffering. Id., See also Carlson v. Bubash, 630 A.2d 458, 461–62 (Pa. Super. 1994) (discussing Martin v. Soblotney, 466 A.2d 1022 (Pa. 1983)). Medical liens for past medical expenses are admissible when offered by plaintiffs to prove past medical expenses. See Chavers v. 1605 Valley Ctr. Pky, L.P., 294 A.3d 487, 494–96 (Pa. Super. 2023). Defendants are generally not allowed to admit medical liens under the collateral source doctrine, to avoid the improper inference of double recovery diminishing Plaintiff’s damages, unless it is relevant to some other material issue at trial. See Gallagher v. Pa. Liquor Control Bd., 883 A.2d 550, 558 (Pa. 2005).

In considering whether a party may present testimony concerning the full amounts of medical bills and liens turns on relevancy and is subject to various other evidentiary rules. The major barrier to the relevance of this evidence is the collateral source rule. The “collateral source rule” prohibits “defendants in tort actions from reducing their liability with evidence of payments made to injured parties by independent sources.” Esposito v. O’Hair, 886 A.2d 1197, 1199 (R.I. 2005). Therefore, the proffering party would need to show an independent ground for its relevance other than reducing their own liability such as challenging the reasonableness of the medical expenses. The determination would then be made on a case-by-case basis depending upon the specific facts and circumstances presented to the court.

R.I.G.L. § 9-19-27 is a statutory exception to the hearsay rule that applies only to medical records.  See R.I Gen. Laws § 9-19-27.  Under Section 9-19-27, medical records and bills that are certified by affidavit (in a form in compliance with the statute) are admissible evidence of (1) the fair and reasonable charge for treatment, (2) the necessity of treatment, (3) diagnosis, (4) prognosis, (5) the physician’s expert opinion as to proximate causation of the diagnosed condition, and (6) the physician’s expert opinion as to disability, incapacity or permanency, if any.  Id. There is no current legal authority addressing the issue of admissibility of medical-legal liens in Rhode Island. We would anticipate that a trial court would exclude evidence of medical-legal liens on the grounds that such evidence is not relevant.

Yes, South Carolina allows the testimony at trial of the full amount of medical bills. The collateral source rule states that payments or services rendered by third parties to aid an injured plaintiff should not be used to reduce the amount of damages owed by the defendant. Under the collateral source rule, a tortfeasor has no right to any mitigation of damages because of payments or compensation received by the injured person from a source wholly independent of the wrongdoer.[i] Evidence of medical legal liens are inadmissible at trial, because of the collateral source rule. As a medical provider’s lien would be evidence of services rendered by third parties to aid an injured plaintiff.

[i] Johnston v. Aiken Auto Parts, 311 S.C. 285, 428 S.E.2d 737

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Tennessee’s version of the collateral source rule allows plaintiffs to claim the entire amount of billed medical expenses at trial as opposed to the amounts actually paid by a health insurer or other source. Dedmon v. Steelman, 535 S.W.3d 431, 433 (Tenn. 2017) (“Under the present law in Tennessee, plaintiffs in personal injury cases may use their full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses. To rebut the plaintiffs’ proof that those charges are reasonable, defendants are free to submit any competent evidence in rebuttal that does not run afoul of the collateral source rule. A defendant is permitted to introduce relevant evidence regarding necessity, reasonableness, and whether a claimed service was actually rendered.”). Tennessee has no specific rule regarding medical-legal liens.   

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Yes, Plaintiffs are permitted to prove up the full, non-discounted amount of their medical bills.

As to medical bills and medica-legal liens, that information is barred by Vermont’s collateral source rule. See Buker v. King, Docket No. 523-11-05 Wrcv (Vt. Super. Ct. Jun. 23, 2008)(Morris, J.)(refusing to limit the reasonable value of plaintiff’s medical services to the amounts plaintiff’s medical providers agreed to accept as a recipient of Medicaid funds); See also Beaudin v. Kupersmith, Docket No. S 0803-07 Cncv, (Vt. Super. Ct. Oct. 26, 2010) (Skoglund, J.) (“To the extent that Defendant’s argument is that reasonable value of medical services can most accurately be proven through market transaction, i.e. the amount of payment the providers accepted, it is unavailing.”) The public policy reasoning is that a plaintiff’s arrangement with a medical provider should not benefit the tortfeasor in a civil action.

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Yes. Medical liens are considered irrelevant. The plaintiff lawyer may introduce the full amount of the charges. The only option for a defense lawyer is to introduce expert testimony that the charges were unreasonable, or the treatment was unnecessary.

In West Virginia, the admissibility of medical bills as evidence is allowed but is governed by several principles. For instance, in Kenney v. Liston, the plaintiff introduced and sought to recover the entire billed amount as his necessary and reasonable medical expenses. 233 W. Va. 620, 760 S.E.2d 434 (2014). Proof that medical bill was paid or incurred is prima facie evidence that the expense was necessary and reasonable. See W. Va. Code § 57-5-4j.

There are limitations, such as the “collateral source rule” which, as to evidence, bars the submission that an injured plaintiff received payment for any part of his or her damages, including medical expenses from other sources. Kenney v. Liston, 233 W. Va. 620, 627 n.17, 760 S.E.2d 434, 441 (2014) (quotation omitted). This principle is supported by other cases, such as Gardner v. A.W. Chesterton Co., where the court held that plaintiffs’ damages for past medical services should be limited to their actual expense or cost, meaning the amounts accepted as full and final payment by the healthcare providers. No. 11-C-168, 2012 W. Va. Cir. LEXIS 1603, at *7 (Cir. Ct. Mar. 20, 2012).

West Virginia law allows the state to place a lien on the property of individuals who are inpatients in a nursing facility, intermediate care facility for individuals with an intellectual disability or other medical institution who, after notice and an opportunity for a hearing, the state has deemed to be permanently institutionalized to recover Medicaid expenditures for services provided by medical institutions. W. Va. Code § 9-5-11c. In any civil action implicated by this section, the Department of Human Services, or its contracted designee may file a notice of appearance and shall thereafter have the right to file and receive pleadings, intervene and take other action permitted by law. W. Va. Code § 9-5-11(c)(3).

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Wyoming applies the collateral source rule, which states that “payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or part of the harm for which the tortfeasor is liable.” Prager v. Campbell County Mem. Hosp., 731 F.3d 1046, 1059 (10^th Cir. 2013). This means that an injured plaintiff may recover more than the medical expenses actually owed by the plaintiff or paid on their behalf.

The Wyoming Supreme Court has not had an opportunity to rule on the admissibility of medical-legal liens.  However, a federal district court judge in Wyoming ruled in a motion in limine hearing that evidence of a medical lien or evidence that plaintiff was referred by plaintiff’s counsel to a medical provider is relevant to show bias and credibility of the medical practitioner. The Court also held that medical-legal liens may be relevant to showing if the provider has an interest in the judgment or is testifying for the plaintiff to ensure their payment.