CACI 3903A Medical Expenses—Past and Future (Economic Damage)

California Civil Jury Instructions CACI

3903A Medical Expenses—Past and Future (Economic Damage)

[Insert number, e.g., “1.”] [Past] [and] [future] medical expenses.

[To recover damages for past medical expenses, [name of plaintiff] must prove the reasonable cost of reasonably necessary medical care that [he/she/nonbinary pronoun] has received.]

[To recover damages for future medical expenses, [name of plaintiff] must prove the reasonable cost of reasonably necessary medical care that [he/she/nonbinary pronoun] is reasonably certain to need in the future.]

Sources and Authority

“ ‘In tort actions, medical expenses fall generally into the category of economic damages, representing actual pecuniary loss caused by the defendant’s wrong.’ ‘A person who undergoes necessary medical treatment for tortiously caused injuries suffers an economic loss by taking on liability for the costs of treatment. Hence, any reasonable charges for treatment the injured person has paid or, having incurred, still owes the medical provider are recoverable as economic damages.’ ” (Williams v. The Pep Boys Manny Moe & Jack of California (2018) 27 Cal.App.5th 225, 237 [238 Cal.Rptr.3d 809].)

“[A] person injured by another’s tortious conduct is entitled to recover the reasonable value of medical care and services reasonably required and attributable to the tort.” (Hanif v. Housing Authority of Yolo County (1988) 200 Cal.App.3d 635, 640 [246 Cal.Rptr. 192], internal citations omitted; see also Helfend v. Southern Cal Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [84 Cal.Rptr. 173, 465 P.2d 61 [collateral source rule].)

“The jury in this case was properly instructed with CACI No. 3903A, which directs the jury to determine ‘the reasonable cost of reasonably necessary medical care that [plaintiff] is reasonably certain to need in the future.’ ” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050 [208 Cal.Rptr.3d 363]; see also Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 183 [217 Cal.Rptr.3d 519] [CACI 3903A is an accurate statement of the law].)

“The jury was properly instructed in this case to determine ‘the reasonable cost of reasonably necessary medical care that [plaintiff] has received’ and ‘the reasonable cost of reasonably necessary medical care that [plaintiff] is reasonably certain to need in the future.’ But as a consequence of the discrepancy in recent decades between the amount patients are typically billed by health care providers and the lower amounts usually paid in satisfaction of the charges (whether by a health insurer or otherwise), controversy has arisen as to how to measure the reasonable costs of medical care in a variety of factual scenarios.” (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1328 [188 Cal.Rptr.3d 820].)

“[A] plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less. California decisions have focused on ‘reasonable value’ in the context of limiting recovery to reasonable expenditures, not expanding recovery beyond the plaintiff’s actual loss or liability. To be recoverable, a medical expense must be both incurred and reasonable.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 [129 Cal.Rptr.3d 325, 257 P.3d 1130], original italics, internal citations omitted.)

“[A]n injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial. In so holding, we in no way abrogate or modify the collateral source rule as it has been recognized in California; we merely conclude the negotiated rate differential—the discount medical providers offer the insurer—is not a benefit provided to the plaintiff in compensation for his or her injuries and therefore does not come within the rule.” (Howell, supra, 52 Cal.4th at p. 566.)

“[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. 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.” (Howell, supra, 52 Cal.4th at p. 567, internal citation omitted.)

Howell offered no bright-line rule on how to determine ‘reasonable value’ when uninsured plaintiffs have incurred (but not paid) medical bills. [Defendant] is correct that the concept of market or exchange value was endorsed by Howell as the proper way to think about the ‘reasonable value’ of medical services. But she is incorrect to the extent she suggests (1) [Plaintiff] is necessarily in the same market as insured health care recipients or wealthy health care recipients who can pay cash; or (2) Howell prescribes a particular method for determining the ‘reasonable value’ of medical services.” (Bermudez, supra, 237 Cal.App.4th at p. 1330.)

“In sum, the measure of medical damages is the lesser of (1) the amount paid or incurred, and (2) the reasonable value of the medical services provided. In practical terms, the measure of damages in insured plaintiff cases will likely be the amount paid to settle the claim in full. It is theoretically possible to prove the reasonable value of services is lower than the rate negotiated by an insurer. But nothing in the available case law suggests this will be a particularly fruitful avenue for tort defendants. Conversely, the measure of damages for uninsured plaintiffs who have not paid their medical bills will usually turn on a wide-ranging inquiry into the reasonable value of medical services provided, because uninsured plaintiffs will typically incur standard, nondiscounted charges that will be challenged as unreasonable by defendants.” (Bermudez, supra, 237 Cal.App.4th at pp. 1330–1331.)

“Here, we are confronted with an insured plaintiff who has chosen to treat with doctors and medical facility providers outside his insurance plan. We hold that such a plaintiff shall be considered uninsured, as opposed to insured, for the purpose of determining economic damages.” (Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1269 [232 Cal.Rptr.3d 404].)

“[T]he inquiry into reasonable value for the medical services provided to an uninsured plaintiff is not necessarily limited to the billed amounts where a defendant seeks to introduce evidence that a lesser payment has been made to the provider by a factor … . In such cases, the inquiry requires some additional evidence showing a nexus between the amount paid by the factor and the reasonable value of the medical services.” (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996, 1007 [194 Cal.Rptr.3d 364].)

“Where a medical provider has (1) rendered medical services to a plaintiff, (2) issued a bill for those services, and (3) subsequently written off a portion of the bill gratuitously, the amount written off constitutes a benefit that may be recovered by the plaintiff under the collateral source rule.” (Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 769 [133 Cal.Rptr.3d 342].)

“[T]he collateral source rule is not violated when a defendant is allowed to offer evidence of the market value of future medical benefits.” (Cuevas, supra, 11 Cal.App.5th at p. 180.)

“It is established that ‘[t]he reasonable value of nursing services required by the defendant’s tortious conduct may be recovered from the defendant even though the services were rendered by members of the injured person’s family and without an agreement or expectation of payment. Where services in the way of attendance and nursing are rendered by a member of the plaintiff’s family, the amount for which the defendant is liable is the amount for which reasonably competent nursing and attendance by others could have been obtained. The fact that the injured party had a legal right to the nursing services (as in the case of a spouse) does not, as a general rule, prevent recovery of their value … .’ ” (Hanif, supra, 200 Cal.App.3d at pp. 644–645, internal citations omitted.)

“Two points about the sufficiency of evidence to support a judgment can fairly be taken from Howell. First, the amount paid to settle in full an insured plaintiff’s medical bills is likely substantial evidence on its own of the reasonable value of the services provided. Second, consistent with pre-Howell law, initial medical bills are generally insufficient on their own as a basis for determining the reasonable value of medical services. Ensuing cases have held that a plaintiff who relies solely on evidence of unpaid medical charges will not meet his burden of proving the reasonable value of medical damages with substantial evidence.” (Bermudez, supra, 237 Cal.App.4th at p. 1335, internal citations omitted.)

Nor is it necessary that the amount of the award equal the alleged medical expenses for it has long been the rule that the costs alone of medical treatment and hospitalization do not govern the recovery of such expenses. It must be shown additionally that the services were attributable to the accident, that they were necessary, and that the charges for such services were reasonable.” (Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 216 [16 Cal.Rptr. 308].)

“The intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment. Nor does the rule [that a plaintiff in a tort action cannot recover more than the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services might be a greater sum] forbid the jury from considering the amounts billed by the provider as evidence of the reasonable value of the services.” (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1291 [62 Cal.Rptr.3d 309]; see also Moore v. Mercer (2016) 4 Cal.App.5th 424, 436 [209 Cal.Rptr.3d 101] [“Nothing in Howell suggests a need to revisit the issues we addressed in Katiuzhinsky”].)

“The fact that a hospital or doctor, for administrative or economic convenience, decides to sell a debt to a third party at a discount does not reduce the value of the services provided in the first place.” (Uspenskaya, supra, 241 Cal.App.4th at p. 1003.)

“Because the provider may no longer assert a lien for the full cost of its services, the Medicaid beneficiary may only recover the amount payable under Medicaid as his or her medical expenses in an action against a third party tortfeasor.” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827 [135 Cal.Rptr.2d 1, 69 P.3d 927], internal citation omitted.)

“ ‘To entitle a plaintiff to recover present damages for apprehended future consequences, there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d 576, 588 [81 P.2d 894], internal citation omitted.)

“It is for the jury to determine the probabilities as to whether future detriment is reasonably certain to occur in any particular case. [Citation.] It is ‘not required’ for a doctor to ‘testify that he [is] reasonably certain that the plaintiff would be disabled in the future. All that is required to establish future disability is that from all the evidence, including the expert testimony, if there be any, it satisfactorily appears that such disability will occur with reasonable certainty. [Citations.]’ [Citation.] The fact that the amount of future damages may be difficult to measure or subject to various possible contingencies does not bar recovery.” (J.P., supra, 232 Cal.App.4th at pp. 341–342.)

“[W]hile an injured plaintiff is entitled to recover the reasonable value of medical services that are reasonably certain to be necessary in the future, evidence of the full amount billed for past medical services cannot support an expert opinion on the reasonable value of future medical services. It does not appear, however, that [expert] used the full amount billed for past medical services in making the calculations for her life care plan. We observe ‘the “requirement of certainty … cannot be strictly applied where prospective damages are sought, because probabilities are really the basis for the award.” ’ At the time of trial, the precise medical costs a plaintiff will incur in the future are not known. Nor is it known how a plaintiff will necessarily pay for such expenses. It is unknown, for example, what, if any, insurance a plaintiff will have at any given time or what rate an insurer will have negotiated with any given medical provider for a particular service at the time and location the plaintiff will require the medical care. The fact finder is entrusted with the tasks of evaluating the probabilities based on the evidence presented and arriving at a reasonable result.” (Cuevas, supra, 11 Cal.App.5th at p. 182, internal citations omitted.)

“[I]t seems particularly appropriate for the trial court to perform its traditional gatekeeper role as to the admissibility of evidence and, pursuant to Evidence Code section 352, to determine whether evidence that is minimally probative should be admitted or whether it will require an undue consumption of time to try the collateral issues that evidence of what a third party paid for an account receivable and lien will necessarily raise.” (Moore, supra, 4 Cal.App.5th at p. 443.)

“[E]vidence which might be admissible in one case might not be admissible in another. ‘[T]he facts and circumstances of the particular case dictate what evidence is relevant to show the reasonable market value of the services at issue … .’ ” (Moore, supra, 4 Cal.App.5th at p. 442.)

Secondary Sources

9 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1846 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-A, Damages: Introduction, ¶¶ 3:1–3:19.4 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of Compensatory Damages, ¶ 3:351 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.19–1.31
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss, §§ 52.01, 52.03 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.192 (Matthew Bender)
California Civil Practice: Torts § 5:12 (Thomson Reuters)