In most personal injury lawsuits, medical bills make up a large portion of the damages that the Plaintiff is seeking in the suit. Still, in others, the pain and suffering portion of the damages being sought are based heavily on the amount of medical bills. In other words, if the injured Plaintiff has a lot of medical bills, it follows hand-in-hand that she has suffered a great deal and should be awarded for this inconvenience, suffering and pain. In order to place the correct emphasis on medical bills, the proper jury charge is critical. One such charge addresses the concern that the jury may assume there is health insurance which covers (and has paid for) the medical bills being sought by the Plaintiff and addresses the Georgia legal concept of collateral estoppel. It is as follows:
If you find the Plaintiff is entitled to damages, you should give no consideration to other potential sources of payment or benefit to either party as you consider the issue of damages. You are not permitted to consider or speculate whether the Plaintiff has been or will be compensated, in whole or in part, by any other source or whether some third-party has made or will make any payment for expenses or damages that you find the Plaintiff has suffered as a result of the matters alleged in this case.
In other words, it should be on no concern to the jury as to whether the Plaintiff has medical insurance that may cover some or all of the medical bills being sought in the case nor should the jury guess or speculate about this. In addition, with the advent of document production and editing software, it is much easier to make redactions in bills so that references to insurance are removed from the jury’s purview and this, at a minimum should be done in every case in which the medical bills will be going back to the jury as an exhibit to consider and take into account in order to arrive at an amount of damages that will fairly and adequately compensate the Plaintiff in the lawsuit. In order to protect against the jury penalizing the Plaintiff for making the correct legal redactions, the Plaintiff attorney in the case should strongly consider a jury charge such as the following:
During the trial of this case the parties have tendered documentary evidence including medical bills, records, photos and other items for use by you, the jury, in considering your verdict. Some of these items may have redactions or portions missing or appear to be missing, or may have obvious edits. The rules of evidence must be adhered to in a strict manner so that only items of evidence allowed by law are considered by you in rendering your verdict. You are not to regard any redactions, omissions or edits as being done to deceive, affect or hide anything from you. You are to look at only what you have been presented and are not to speculate about what was redacted, omitted or edited. Any evidence that you have before you is lawful and appropriate in the form presented to you.
The pattern charge for the recovery of medical expenses says that the bills have to be reasonable and necessary and defense lawyers will use this to argue that the bills put into evidence
by the plaintiff are not reasonable in their amount. However O.C.G.A. §24-9-921 makes no reference to the need for the plaintiff to prove that the medical bills being used to recover damages were necessary and reasonable, and in fact, it states that “it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary. However, nothing in this Code section shall be construed to limit the right of a thorough and sifting cross-examination as to such items of evidence.” The full text of O.C.G.A. §24-9-921 is as follows:
(a) Upon the trial of any civil proceeding involving injury or disease, the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial and that the bills were received from:
(1) A hospital;
(2) An ambulance service;
(3) A pharmacy, drugstore, or supplier of therapeutic or orthopedic devices; or
(4) A licensed practicing physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist.
(b) Such items of evidence need not be identified by the one who submits the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary. However, nothing in this Code section shall be construed to limit the right of a thorough and sifting cross-examination as to such items of evidence.
The language of the statute should be used to limit the argument of defense counsel in situations in which defense counsel attempts to argue that the medical bills are not reasonable and necessary during closing argument, but had not developed that argument during cross-examination during the evidentiary portion of the trial.
For more than 20 years, Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the negligence of others in and around the Atlanta, Georgia area, including Alpharetta, Austell, Brookhaven, Chamblee, College Park, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation or if you would just like to consult about your potential case, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.