Strategies, Challenges, and Answers

Trial Judge Let’s Plaintiff Have Cake And Eat It Too.

Birthday cakeSetting: A courtroom somewhere in Las Vegas

Cast of Characters:

  • Treating Doctor
  • Plaintiff’s Attorney (P.A.)
  • Defendant’s Attorney (D.A.)
  • Judge

Doctor:         I performed surgery on Plaintiff and my charges are reasonable.

D.A.:              But wait!  Doctor’s opinions regarding reasonableness are not believable.  He is biased.  He performed the surgery on a lien and the lien is admissible to prove bias. If you don’t believe me, take a look at the case of Craigmiles v. Egan, 618 N.E.2d 1242, 1253 (Ill. App. Ct. 1993) in support of my argument.

P.A.:               Hold your horses.  Doctor can’t be biased because he no longer holds a lien.  Evidence of the lien is not relevant.  Even if he is biased, liens must be considered a “collateral source” under the rule of Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853 (1996) and should not be admitted.

D.A.:               So Doctor, what happened to the lien?

Doctor:          I sold it to a litigation lender and satisfied Plaintiff’s obligation to pay me anything further.

D.A.:               Great!  Judge, I move to exclude evidence of any amount of Doctor’s charges in excess of the amount he accepted in full satisfaction of his bill. The case of Howell v. Hamilton Meats and Provisions, Inc., 52 Cal. 4th 541, 550-51 257 P.3d 1130, 1134 (Cal. 2011) says the court should allow my client the benefit of that reduction. At the very least, the defense should be allowed to introduce evidence of the reduction to contradict Doctor’s opinion that his billed charges are reasonable

P.A.:                Not so fast.  The amount paid by the litigation lender is a collateral source. Plaintiff still has to pay the lender.  Therefore, it would be a violation of Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853 (1996) to introduce evidence of Doctor’s reduction as well.

Judge:            That seems right.  I will exclude the evidence of any write-down by Doctor because it is a collateral source.

D.A.:               Okay.  Then I move to introduce evidence of the lien to impeach Doctor.

Judge:            Nope. That’s excluded too.  It wouldn’t be right to impeach Doctor who no longer has an interest in the case

This summary dialog conveys the essence of two important issues presently pending before the Nevada Supreme Court in the appeal of Khoury v. Seacrest, Supreme Court Case No. 64702.

The first is whether a lien can be introduced as evidence of a provider’s bias, whether the lien is a collateral source and whether, if the bill is paid, does that bias go away?

The second issue is whether an obligation to a litigation lender deserves the same “collateral source” protection as would a payment by the Plaintiff’s own insurance company.  Or can Defendant use any reduction of the charges to disprove the Doctor’s claim that his bills were reasonable.

If the record substantiates the arguments of counsel, it seems to the Nevada Law Blog that the Supreme Court will need to go one way or the other. By sustaining the trial court, the Supreme Court would effectively deprive the defense of any opportunity to challenge the physician’s opinion of the reasonableness of his own charges. To leave things as is would seem to mock the immutable law of the universe that “you can’t have your cake and eat it too.”

If you have a question about either of these issue, contact Mike Mills at 702-240-6060 for consultation.

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