Many times when a plaintiff answers Form Interrogatory 6.4, responds to requests for production of medical bills or prepares a settlement demand, they use the total medical bill without any regard to if the bill has been reduced or paid by another. This is because of the collateral source. The collateral source rule, which is a rule of evidence, states that
“if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor… [It] expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. If we were to permit a tortfeasor to mitigate damages with payments from plaintiff’s insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance. Helfend v. Southern California Rapid Transit Dist. (1970) 2 C3d 1, 6-10 (pdf)
Because of the collateral source rule courts found that defendants could not discover whether or not any of plaintiff’s medical bills were paid by the plaintiff’s insurance, the medical treaters reduced their bill or there was gratuitous medical treatment. See Weil and Brown, Civil Procedure Before Trial (TRG 2012) ¶ 8:96.
Last year, the California Supreme Court in Howell v. Hamilton Meats & Provisions (2011) 52 C4th 541 (pdf) punched a hole in the collateral source rule by limiting plaintiff’s recovered damages to the actual economic loss incurred. The Supremes held that
When 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. Howell at 567
Since what plaintiff’s actual medical costs incurred is now admissible, it is now discoverable.
SEE: Jefferson’s California Evidence Benchbook (CEB 2013) §36.40-36.45 for more discussion.