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Are They Getting Away with That?

A Discussion and Analysis of Two Ongoing Discovery Disputes1. Objections to Discovery of "Bills Actually Paid" (Omaha area)2. Objections to Discovery of Plaintiffs' Full Medical History (Lincoln area)

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Issue 1: Are discounted medical bill rates (a/k/a amounts actually paid for services) discoverable in a personal injury action? Slide4

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Nebraska Revised Statute § 52-401 (Hospital Medical Lien Statute)

"For persons covered under private medical insurance or another private health benefit plan, the amount of the lien shall be reduced by the contracted discount or other limitation which would have been applied had the claim been submitted for reimbursement to the medical insurer or administrator of such other health benefit plan. The measure of damages for medical expenses in personal injury claims shall be the private party rate, not the discounted amount

." Neb. Rev. Stat. § 52-401.

The Collateral Source Rule Prohibits:

Evidence that the claimant has received compensation from some other source for damages sought.

Evidence relating to the discounted amount of measure of damages for medical expenses in a personal injury case. Slide5

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DEFENSE ARGUMENTS IN SUPPORT OF DISCOVERABILITY

Evidence of the discounted rate is admissible for purposes other than the measure of damages.

Even if not

admissible

, evidence of bills actually paid is

discoverable

as it may lead to discovery of other admissible evidence.

Evidence of private party rate should be admissible for public policy grounds.Slide6

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Evidence is admissible to determine if private party rate is "fair and reasonable." (MRI example)

Although the measure of damages in a personal injury case is determined by the private-party rates, those rates must be "fair and reasonable," and when disputed, these rates become a question of fact for the jury. Renne v. Moser, 241 Neb. 623, 634, 490 N.W.2d 193, 200 (1992).

"The evidence at issue would be offered as to whether the rates were "fair and reasonable" and would be admissible in this context, making this evidence discoverable. In determining what a "fair and reasonable" rate is, the amount that third parties paid helps to determine an objectively fair and reasonable rate.

See

Thomas R. Ireland, Ph.D.,

The Concept of Reasonable Value in Recovery of Medical Expenses in Personal Injury Torts

, J. Legal Econ., March 2008, at 87, 89-90 (noting that courts typically avoid saying the "reasonable value" is always the amount billed, but instead understand that medical care providers may sometimes charge fees that are not "reasonable," and that, in his opinion, it is likely that third-party payments are many times closer than private party rates to a "reasonable value" as legal economists would determine).

1. Evidence of the discounted rate is admissible for purposes

other than

establishing the measure of damages:

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Evidence of dates/times of treatment (if in dispute).

Impeachment (Example)

Difficult to foresee all possible uses for the evidence which should weigh in favor of it being discoverable.6Other Permissible UsesSlide8

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2. Even if not

admissible, evidence of the discounted rate is discoverable as it may lead to discovery of admissible evidence.Neb. R. Disc. § 6-326(b)(1): "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

Inadmissible

≠

undiscoverable

Discovery could lead to important information pertaining to treatment sought, names of medical providers, names of pharmacies with providers, names of pharmacies with prescription records, or amounts related to special damages.

Records don't always match bills.

This is a piece of Plaintiff's medical history.Slide9

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3. Strong policy reasons support the discovery of this evidence.

Discovery of the discounted rate supports the likelihood of settlement of cases which would otherwise go to trial.Nebraska courts favor compromise of disputes through negotiation. Baker v. Blue Ridge Ins. Co.

, 215 Neb. 111, 113, 337 N.W.2d 411, 413 (1983).

When discussing whether the Supreme Court of Nebraska should allow discovery of insurance agreements even if inadmissible, the Court emphasized, "Knowledge as to defendant's insurance permits a more realistic appraisal of a case and . . . leads to settlement of cases which otherwise would go to trial."

Walls v. Horbach

, 189 Neb. at 480-81 (ellipsis in original) (internal citations omitted).

This decision was later codified in Neb. Ct. R. Disc. § 6-326(b)(2). The evidence at hand is akin to insurance-agreement evidence in that it provides "a more realistic appraisal of a case" regardless of whether the information is admissible or not. Walls, 189 Neb. at 480-81. Therefore, even if a judge were to determine that the evidence is inadmissible, it should follow the Supreme Court's rules of discovery for insurance agreements and hold that evidence of third-party payments will be allowed for discovery despite its inadmissibility.Slide10

Issue 2: Objection to Blanket Requests for Medical Records (or Any Medical Records More than 10 Years Old)

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BACKGROUND

Neb. Rev. Stat. §27-504 creates a privilege between a patient and his or her physician. However, filing a personal injury claim waives physician-patient privilege to all information concerning the health and medical history relevant

to the matters which the plaintiff has put at issue.

Vredeveld v. Clark

, 244 Neb. 46 (1993). The court in this case cited to

State ex rel Mapes v. District court

, 250 Mont. 254, 822 P.2d 91 (1991), stating "plaintiff waives her physician-patient privilege to the extent necessary for the defendant to discover whether plaintiff's current condition is the result of some other cause."

Like other confidentiality privileges, this privileged communications between a patient and physician can be waived. "When a party claims damages for physical or mental injury, he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality to the extent that it is necessary for a defendant to discover whether plaintiff's current medical or physical condition is the result of some other cause." State ex rel. Mapes v. Dist. Court of Eighth Judicial Dist. In & For Cnty. of Cascade, 250 Mont. 524, 530, 822 P.2d 91, 94-95 (1991)

2 ExamplesSlide12

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Step One: Determine the nature of Plaintiff's damage claims to determine the extent to which Plaintiff's medical history is "at issue".

The type, nature and permanency of the injury are all relevant.For instance, The Supreme Court of Colorado has held general "garden variety" claims of general pain and suffering may not be enough to discover a complete medical history. See

Weil v. Dillon Companies, Inc

109 P.3d 127, 130-32 (Colo. 2005) (holding “garden variety mental suffering claim” raised in complaint did not inject plaintiff's mental.

The test is whether the claimant significantly injected his physical and mental condition as the basis of his claim.

Hoffman,

87 P.3d at 863–64;

Johnson

, 977 P.2d at 157;

Clark

, 668 P.2d at 10. This is determined on a case-by-case inquiry into “the cause and extent of the injuries which form the basis for a claim for relief.”

Samms v. Dist. Court

, 908 P.2d 520, 525 (Colo. 1995) (citing

Clark

, 668 P.2d at 10.

Weil.

, 109 P.3d 127, 131 (Colo. 2005)Slide13

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Step Two: Determine the Nature of the Objection.

Assuming you can clear the first hurdle and establish that the Plaintiff's medical condition is "at issue", there are three possible grounds for objecting to a complete medical history: 1. Overbroad and Unduly Burdensome

2. Not Calculated To Lead to Discovery of Admissible Evidence

3. Privacy Grounds

Make sure to pin the Plaintiff down because objections often combine and confuse these factors.Slide14

Responding to "Overly Broad and Unduly Burdensome" Objections

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The purpose of this objection is to prevent broad discovery requests where the burden and expense of responding to discovery outweigh the likely benefits of that discovery. NOTE: The Plaintiff in a personal injury case bears no burden and no expense in responding to one of these subpoenas.

ALSO NOTE

: Most medical records custodians have internal records retention policies which limit the breadth of discovery.

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Responding to "Not Calculated to Lead To the Discovery of Admissible Evidence".

Depending on the nature of the injury claimed, this is an easy argument to make. (Example)

"The mischief of an arbitrary time limit, such as five years preceding the incident alleged in the complaint, should be obvious. A claim of permanent disability as a result of lower back problems asserted ten years before an accident is far more relevant to a personal injury claim alleging damage to the inter-vertebral discs and related nervous system than a back strain two

years preceding the accident. Likewise, that a physician diagnosed a herniated disc at the L4-5 level of the lumbar spine twelve years before the incident is highly relevant to a plaintiff who claims that she herniated her disc at L4-5 as

a

result of a motor vehicle accident." "Privacy vs. Honesty – The Necessity of Full Disclosure of Medical Records" Illinois Association of Defense Trial Counsel - By: James E. DeFranco and Darrell J. Flesner DeFranco & Bradley, P.C.,

Swansea.

Tougher cases (no permanency, singular injury)

i) Prior records can be relevant to causation

ii) Holistic approach to medical history

A complete medical history is necessary to understand the claimant's pain and suffering.

See

Personal Injury Forms: Discovery & Settlement

. John A. Tarantino, David J. Oliveria, James Publishing (1985) citing Dar. et. al "The Effect of Past Injury Pain on Threshold and Tolerance," 60 Pain 189 (1995) See also Jones & Subar, Proving What Seems Unprovable," 32 Trial 12 at 47.49 (December 1996) describing ways to prove client's pain and suffering at trial, including the importance of obtaining a complete medical history."

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Responding to Objections Based on Privacy Issues

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Privacy concerns are secondary once a Plaintiff puts their medical condition "at issue".Play your trump card: agreeing to a protective order should short circuit this objection.15Slide17

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Final Words On These and Other Discovery Disputes:

Courts should err on the side of allowing discovery.

The

discovery rules were broadly written so as to allow discovery of any relevant matter not privileged.

State ex rel. Acme Rug Cleaner, Inc. v. Likes

, 256 Neb. 34, 41, 588 N.W.2d 783, 787 (1999

).

The

Nebraska Supreme Court has stated that “relevancy” for discovery is broader than relevancy for trial.

Stetson

v. Silverman

, 278 Neb. 389 (2009

).

Information must appear reasonably calculated to lead to discovery of evidence. The primary purpose of the discovery process is to explore all available and properly discoverable information to narrow the fact issues in controversy so that a trial may be an efficient and economical resolution of a dispute. . . . The discovery process also provides an opportunity for pretrial preparation so that a litigant may conduct an informed cross-examination.

2. Prejudice is KeySlide18

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