What’s The Reasonable Medical Expense For Two Aspirin? It Depends…” BY: PETER COLLINS, JR., GUST ROSENFELD
Splitting headache after an accident. You see an ER nurse, an intern, a radiologist and the ER Physician. CT Scan is negative. You get two aspirin. ER billed your insurer $4.00 for the aspirin. Your insurer paid $0.20 each, a total of 40 cents. Your advocate wants to list that aspirin as $4.00 to the jury. Which is the “reasonable expense” of that aspirin? We have a vigorous debate on the admissibility of medical expenses. Judges issue Minute Entries in different directions. State Bar Jury Instruction Committee debates. As of today, no Court of Appeals has directly addressed it. This article discusses the arguments, various rulings, and suggests a defense perspective. (A longer version with references is available upon request.)
PLAINTIFF TACTICS Personal injury Plaintiffs are entitled to compensation only for those medical expenses that were reasonable and necessary. Burns v. Jaquay, 32 Ariz. 375, 379 (App. 1988). Plaintiffs routinely disclose the full medical expenses caused by the accident, using Plaintiff treating physicians as witnesses. They disclose providers as percipient witnesses, claiming that each would testify to reasonableness of expenses. Those witnesses are not listed as experts, and no foundation for their opinions on medical expenses is provided. These physicians may have an excellent basis for medical opinions, but rarely have basis for opinions on reasonable costs of medical care. This is a separate intellectual regime, where most physicians have no basis. But see Benedict v. Total Transit Inc., 499 P.3d 339 (App. 2021), where a physician was allowed to testify regarding reasonableness because he testified he was "aware" of billing practices. Plaintiff always cite Lopez v. Safeway, 212 Ariz. 198 (App. 2006) (See discussion below). More recently, we have seen Plaintiffs’ Requests for Admissions that medical expenses are reasonable and necessary.
Last year, Pima County Judge Metcalf ruled that a simple denial was insufficient: that the defense must assert – with expert testimony – that the medical bills were NOT reasonable or necessary. Plaintiffs attack defense expert witnesses for lack of foundation for opinions on the reasonableness of bills, when they base their opinions on national statistics. (Klopotowski v. Arizona, MCSC, CV 2020-054681 (1.26.22).
