What is a “collateral source”? It is a source of payment or benefit that is not relevant to issue of legal liability and damages in a personal injury case. For example, an injured person may be covered under a group medical plan at work, or have an individual medical policy that covers some of the medical expenses caused by the accident. Or, Medicare, Medicaid or some other governmental program may have paid most of the medical bills. Loss of earnings due to an injury may be partially offset by Social Security disability benefits, or other disability benefits, or workers compensation benefits.
The collateral source rule is a rule of evidence that prohibits consideration of such collateral sources of payment or benefit to the plaintiff in a personal injury case. So, where the collateral source rule is in effect, upon the trial of a personal injury case, a defendant cannot offer evidence that the plaintiff had medical insurance coverage that paid all or part of the medical expenses caused by the accident, or that he or she had a long term disability (LTD) policy, or other disability benefits. Currently, certain advocates of “tort reform” in Tennessee (big business, insurance companies and the Chamber of Commerce) want to abolish the collateral source rule in Tennessee and permit defendants to introduce evidence of the injured plaintiff’s own medical and disability insurance coverage at trial.
Tennessee already gives doctors and hospital a big break by disallowing recovery of many collateral sources of payment or benefit to the plaintiff in medical malpractice or “health care liability” cases, T.C.A. § 29-26-119:
“In a health care liability action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury, including, but not limited to, cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually.” (Emphasis supplied)
But this is not a rule of evidence. It is a limitation on damages, and the Tennessee Supreme Court has held that T.C.A. § 29-26-119 is “in derogation of the common law rule that allowed plaintiffs to recover medical expenses, whether paid by insurance or not” so “it must be strictly construed”, Hunter v. Ura, 163 S.W.3d 686 (2005).
How do neighboring states handle collateral source “evidence”? Collateral sources of payment or benefit to the injured plaintiff are not allowed into evidence in Georgia. See Denton v. Con-way Southern Express, 261 Ga. 41 (1991), (overruled on other grounds).
In Alabama, collateral sources of payment of medical expenses are admissible, under Ala. Code Sec. 12-21-45(a):
“In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.”
But the plaintiff can offer evidence that he or she is “obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed.”
In Alabama, the “collateral source rule has been abrogated, but it is a rule of evidence and not a law of damages. Therefore, the jury has discretion to consider all the evidence and to either reduce the award or not based on the collateral source payments.” AMF Bowling Ctrs. v. Dearman, 683 So. 2d 436, (Ala. Civ. App. 1995).
So, while Georgia does not permit any evidence of collateral sources at trial, Alabama does allow evidence of payment of medical expenses. What should the Tennessee legislature do? If collateral sources are to be considered, should it be a rule of evidence or a rule of damages? Tennessee already limits recovery of medical expenses to those that are reasonable and necessary and places a considerable evidentiary burden on the plaintiff to prove such with expert testimony. And, Tennessee does not allow recovery of most “collateral sources” in medical malpractice cases. In Georgia, by contrast, “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”, without the necessity of any expert testimony, O.C.G.A. § 24-9-921.
If collateral sources are to be admissible, why not ease the evidentiary burden on the plaintiff, and allow the bills to be considered upon testimony by the patient that he or she incurred the bills?
If the plaintiff’s medical or disability insurance coverage is be considered, what about the defendant’s liability insurance coverage? Tennessee currently follows an archaic rule that even prohibits discovery of the defendant’s liability insurance coverage. Why not put all the cards on the table and let the jury know all the facts?
Note: In one of the early “tort reform” efforts, in 1987, the Georgia legislature passed a law allowing evidence of collateral sources into evidence at trial. The law was challenged and declared unconstitutional in 1991, in Denton v. Con-way Southern Express. Hubert E. Hamilton was counsel for the plaintiff, Carol Denton, and successfully argued the case before the Georgia Supreme Court.
It depends! Under T.C.A. § 24-5-113(a), “medical, hospital or doctor bills” incurred due to an injury that are itemized in the complaint and attached as an exhibit are deemed to be “necessary and reasonable” as long as the total amount of the bills does not exceed $4000.
And, under T.C.A. § 24-5-113(b):
“ . . . if an itemization of or copies of the medical, hospital or doctor bills which were paid or incurred because of such personal injury are served upon the other parties at least ninety (90) days prior to the date set for trial, there shall be a rebuttable presumption that such medical, hospital or doctor bills are reasonable.”
But what if, after an injury causing accident, a hospital files submits its charges to Blue Cross Blue Shield (BCBS) or some other insurance company, gets paid the reasonable and customary amount provided by their contract, and then tries to collect the difference between the billed amount and the contract amount by perfecting a lien against the cause of action under T.C.A. §§ 29-22-102 (Tennessee Hospital Lien Act)?
In West v. Shelby County Healthcare Corp. 2014 Tenn. LEXIS 1033, (12/19/14), the Tennessee Supreme Court, said, in essence, that hospitals cannot have their cake and eat it too. If they accept the contract amount, that is all they get.
“We have already held that persons insured by an insurance company are intended third-party beneficiaries of the contract between their insurance company and a hospital. Benton v. Vanderbilt Univ., 137 S.W.3d 614, 620 (Tenn. 2004). Thus, with regard to an insurance company’s customers, “reasonable charges” are the charges agreed to by the insurance company and the hospital. Nishihama v. City & County of San Francisco, 93 Cal. App. 4th 298, 112 Cal. Rptr.2d 861, 867 (App. Ct. 2001); Hoffman v. Travelers Indem. Co. of Am., 2013-1575, p. 10 (La. 5/7/2014); 144 So.3d 993, 1000. The Med’s contract with BCBST and BHSG defined what the reasonable charges for the medical services provided to Mses. West and Heags-Johnson would be.”
But even the Court got a bit confused when it pointed out that:
“The presumption in Tenn. Code Ann. § 24-5-113(a)(1) (2000) that itemized medical bills are necessary and reasonable does not apply to this case. That presumption applies only to personal injury actions brought in any court by injured parties against the persons responsible for causing their injuries. Tenn. Code Ann. § 24-5-113(a)(2). In addition, the presumption does not apply when the total cost of the medical bills exceeds $4,000. Tenn. Code Ann. § 24-5-113(a)(3). The claims made by Mses. West and Heags-Johnson are not personal injury claims against the persons who caused their injuries, and the amount of each claim exceeded $4,000. Accordingly, we must assess the reasonableness of the Med’s charges without the presumption that they are reasonable.”
Actually, as we point here, there is a rebuttable presumption of reasonableness, regardless of the amount, if the bills are served on the other parties at least 90 days in advance of trial under T.C.A. § 24-5-113(b).
Plaintiffs usually fare well in FELA cases, which provide compensation for railroad employees injured on the job. Unlike state workers compensation systems, however, which are no-fault systems, under FELA, the plaintiff must prove some negligence on the part of the railroad in causing the injury. In Spencer v. Norfolk Southern Railway Co. 2014 Tenn. LEXIS 626 (8/29/14), the plaintiff injured his back when he threw a switch. The trial court told the jury that the plaintiff had to prove the railroad knew or should have known on the day of the incident that the switch was not operating properly. The jury found in favor of the railroad, and the plaintiff appealed. The Tennessee Court of Appeals found the jury instruction was erroneous and reversed, granting the plaintiff a new trial. Surprisingly, however, the Tennessee Supreme Court reversed the Court of Appeals and reinstated the jury verdict in favor of the railroad, finding the erroneous instruction to have been “substantially accurate.” The Supreme Court acknowledged that the instruction could have been given more precisely and suggested that the jury should have been instructed to determine whether the railroad knew or should have known at a time sufficiently before the incident such that it could have taken action to prevent or ameliorate the incident. But that was no help to the injured plaintiff, who will get not a second chance to prove his FELA case, and who will receive no compensation for his back injuries.
“It’s hard to live your life in color and tell the truth in black and white”
“Few cases go to trial. In virtually all serious injury cases, however, the plaintiff will have to give a deposition. As a result, for most personal injury plaintiffs, the deposition is the trial.”
In its fall issue, The Verdict, the journal of the Georgia Trial Lawyers Association, has published an in-depth article entitled, “Preparing Your Personal Injury Client to Testify,” by Hu Hamilton and Patrick Cruise. The material outlined in the article was gleaned from years of trial experience in the school of hard knocks. It offers detailed practical suggestions for preparing injury clients for depositions, as well as for trial.
The Hamilton Firm LLC is committed to improving the practice of law through continuing legal education, leading workshops and seminars, and sharing with others through professional journals and magazines.
Ante litem notice in claims against the State of Georgia has become trickier. To sue the State under the State Tort Claims Act, written notice must be provided to DOAS (Department of Administrative Service) and to the particular agency involved within 12 months of the date “the loss was discovered or should have been discovered”, O.C.G.A. § 50-21-26(a). On October 6, 2014, the Georgia Supreme Court held in Board of Regents v. Myers, 2014 Ga. LEXIS 768, that a student’s ante litem notice of her injuries suffered in a university parking lot failed to strictly comply with notice requirements because it did not state any amount of loss whatsoever. The Court concluded that the plain language of O.C.G.A. § 50-21-26(a)(5)(E) required notice of the amount of the loss claimed at that time, within the belief and knowledge of the claimant, as was practicable under the circumstances. Although the notice stated that the student’s loss was yet to be determined, she was incurring medical bills, and although she did not yet know the full extent of her injury, she had actually incurred medical expenses of $4,180 at the time she gave notice.
That is not exactly what the statute states, and the language is not that plain:
“(5) A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
(B) The time of the transaction or occurrence out of which the loss arose;
(C) The place of the transaction or occurrence;
(D) The nature of the loss suffered;
(E) The amount of the loss claimed; and
(F) The acts or omissions which caused the loss.”
This new interpretation creates a another pitfall for plaintiffs pursing claims against the State of Georgia, as there is always room to argue over the meaning of what “as may be practicable under the circumstances,” but it is clear that the “amount of the loss claimed” should be stated specifically.
For the second year in a row Patrick A. Cruise was selected as a “Mid South Super Lawyer.” Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
On May 12, 2010, Greg and Diane Parker, came to Tennessee from their home in California to visit Ms. Parker’s father. Mr. Parker was paralyzed from the waist down, so the couple rented a handicap accessible room at the Holiday Inn Express in Harriman, Tennessee. After they checked in, they took a look at the bathroom and noticed a “gap between the shower bench and the wall”, and that the bench was loose. They reported the problem and requested a different room, but none was available. Hotel staff assured Mr. Parker that someone would repair the shower bench. They left for dinner, and their upon return they inspected the shower bench. It seemed to be repaired, “bolted up flush to the wall like it should be.” Mr. Parker pushed on the shower bench, and it did not “shake or sound loose.” The next morning he went into the bathroom to shower, transferred himself from his wheelchair to the shower bench and had been showering for approximately ten minutes when the bench suddenly collapsed. He was injured.
Shouldn’t the hotel owner/operator be held responsible? A guest checks in, notices a problem and the hotel sends in a maintenance man to tighten the bolts, but it collapses anyway, injuring a disabled person. Sounds like a no-brainer, but not to the Tennessee Supreme Court.
Incredibly, in Parker v. Holiday Hospitality Franchising, 2014 Tenn. LEXIS 638 (9/12/14), the Supreme Court absolved the hotel of all responsibility. The hotel was built in 2006 by D&S Builders, who had improperly installed the shower bench without using proper blocking to secure it to the interior wall. The contractor could not be sued due to Tennessee’s four year statute of repose on negligent construction claims, T.C.A. §§ 28-3-202 and 203. The hotel owner had accepted the contractor’s work and opened the hotel to the public. However, he claimed to have no notice of the defective condition of the shower bench, even though they sent a maintenance man to adjust it after the guest complained!
According to the Supreme Court, “The general rule in Tennessee is that a property owner is not vicariously liable for injuries third parties sustain from the negligence of an independent contractor who performs work for the property owner.”
”We hold that the undisputed facts fail to establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not liable for the negligence of independent contractors. We also hold that the undisputed facts establish that Mr. Patel had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence.”
Contrast this extremely unfair outcome involving a Tennessee hotel with the decision in Bright v. Sandstone Hospitality LLC, A13A1811 (3/26/14), where the Georgia Court of Appeals reversed the grant of summary judgment to the owner of a Wingate branded hotel in Kennesaw, Georgia that had similarly denied responsibility for a defective grab bar in a shower/bathtub, blaming the contractor who built the hotel several years before. That case was recently settled after mediation for $250,000 with Hu Hamilton as lead counsel for the plaintiff.
It has long been the law in Georgia that anyone having a tort claim against a municipality (a city or town) had to serve written notice of the claim within six months of the event causing the injury. This, of course, was a trap for the unwary and could lead to a legitimate injury claim being barred simply because timely notice was not given the city or town. The injured person might not seek legal advice until it was too late, and occasionally, lawyers without much experience handling personal injury cases might not be aware of the notice requirements.
Effective July 1, 2014, not only must notice of the claim be presented within six months, but a demand for a specific sum of money must be included, even though the injured person may not have completed medical treatment, may still be out of work and may have no idea of the extent of permanent impairment and disability.
O.C.G.A. § 36-33-5(e) now provides: “The description of the extent of the injury required in . . . this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.”
Anyone having an injury claim against a Georgia city or town should seek competent legal advice as soon as possible, so that proper ante litem notice can be given. Otherwise even a very serious injury claim against a city will be barred.
Although we generally confine our blog posts to developments in the law from Tennessee, Georgia and Alabama (as well as law firm announcements), this California case is worthy of comment.
In Alexander v. FedEx Ground Package System, Inc., a major decision by the 9th Circuit Court of Appeals (August 27, 2014) the Court determined that Federal Express could not necessarily avoid claims by the drivers for employment expenses and unpaid wages under California law, or duck federal liability under FMLA, by calling the drivers “independent contractors”:
“Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so when viewed in the light of (1) the entire agreement, (2) the rest of the relevant “common policies and procedures” evidence, and (3) California law.”
This decision could have broad application nationally to other types of claims against Fed Ex. As the Court stated, “As a central part of its business, FedEx Ground Package System, Inc. (“FedEx”), contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards. FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.”
The concurring opinion includes this delightful and appropriate comment:
“Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” Justice Cardozo made the same point in W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 62 (1935), counseling us, when called upon to characterize a written enactment, to look to the “underlying reality rather than the form or label.” The California Supreme Court echoed this wisdom in Borello, saying that the “label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.’ ”
In a unanimous opinion today (7/15/14), Mary C. Smith v. UHS of Lakeside, Inc. the Tennessee Supreme Court has determined that the Tennessee Rules of Civil Procedure require trial judges to explain why they are granting or denying a motion for summary judgment before they ask the lawyer for the winning party to prepare a proposed order.
Motions for summary judgment are requests by one or more parties to a lawsuit for the court to rule on the merits of an issue before a case goes to trial. The court can determine prior to the start of a trial that there is no genuine issue of material fact and all or a portion of the case will come to an end.
In the specific case the Court decided today, Mary C. Smith sued UHS of Lakeside, Inc. in the Shelby County Circuit Court following the death of her husband who had been treated at the Lakeside Triage Center in September 2004. UHS filed motions for summary judgment asking the trial court to dismiss Ms. Smith’s lawsuit. During hearings in March 2010 and September 2011, the trial judge orally granted UHS’s motions but did not explain the basis for her decisions. Instead, the trial judge asked UHS’s lawyer to draft orders that provided the legal basis for her decisions. The trial judge signed the orders prepared by UHS’s lawyer despite Ms. Smith’s objections.
Ms. Smith appealed, and the Court of Appeals set aside the summary judgment orders. The Court of Appeals decided the trial court failed to comply with Rule 56 of the Tennessee Rules of Civil Procedure, which requires trial courts to “state the legal grounds” when deciding a motion for summary judgment.
The Supreme Court agreed that the trial court failed to comply with Rule 56. The Court emphasized that deciding a motion for summary judgment is a high judicial function. The requirement that a trial court state its grounds promotes respect for the judicial system by ensuring that a summary judgment decision is the product of the trial court’s own independent analysis.
The Court held that the trial court erred by granting UHS’s motions for summary judgment without providing legal grounds and by asking UHS’s lawyers to supply the orders that articulated the reasons for the court’s decision. The Court concluded the trial court must, “upon granting or denying a motion for summary judgment … state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”
In this case, the Court determined the contested orders were not the product of the trial court’s independent judgment, therefore the case was returned to the trial court for further proceedings.