Opinion
No. X04 CV 03 4001300 S
October 25, 2006
MEMORANDUM OF DECISION RE POST-TRIAL MOTIONS
This is a case claiming professional negligence on the part of the defendants. The jury returned a verdict on June 29, 2006, in favor of the plaintiff. The defendants filed motions for collateral source reduction and for remittitur; the motions were briefed and argued orally on September 15, 2006.
1. Motion for Remittitur — Reduction in Past Economic Damages — Medical Bills.
The defendants have moved for a remittitur (#154) as to past economic damages. The first ground is that the amount of medical bills should be reduced to reflect the amount actually paid to the medical providers. The defendants consistently took the position at trial that the medical bills presented by the plaintiff were misleading, in that they, generally, did not reflect the economic reality of medical billing. The practice, generally speaking, is that the medical providers would prepare a bill, which would then be presented to the actual payer, in this case the State Administered General Assistance Program (SAGA). SAGA, pursuant to its contractual agreements with the providers, actually paid only a portion of the bill presented by the provider. At trial, the defendants argued that only the "real" bill, the lesser amount, should have been presented to the jury. Because I believed that the resolution of the issue depended on the development of a more complete factual context, I allowed the "full" bills to be presented to the jury, with the understanding that the issue was preserved for resolution after trial, should the occasion arise. It has arisen.
Several bills, the great minority in this case, were presented to an HMO. These will be discussed below in the context of collateral source deductions.
At the post-trial hearing, the defendants presented into evidence a notebook containing an analysis of each bill, including the provider's stated amount of the bill and the amount paid by SAGA. The notebook also contains a copy of the provider manual. In "Section 4 — Provider Information" it is stated that "[p]articipating providers agree to . . . [a]ccept payments made by CHNCT (Community Health Network of Connecticut, Inc., the Medicaid managed care organization administering the medical aspect of the SAGA program) as full payment for covered services. A provider may only bill a SAGA member for goods and services which are not covered, when the member knowingly elects to receive the goods or services and enters into an agreement in writing to pay for such goods or services prior to receiving them. Providers may not bill for cancelled/missed appointments or for record transfers." There is no evidence and no claim that any of the exceptions applied to any of the goods or services provided to Ms. Smallridge. It is clear, then, that the providers who participated in the program and who provided services to Ms. Smallridge agreed that payment by SAGA was payment in full, and there could be no recourse against Ms. Smallridge for the difference between the provider's "full" bill and the amount paid by SAGA.
See SAGA manual, p. 2.
There was no claim that such was not the case, and the figures presented in the notebook of materials were not contested. I have reviewed the figures and accept the mathematical methodology. The plaintiff's objection is not directed at the factual presentation, but rather at the legal ramifications.
It is indeed true that the traditional law of this state, and undoubtedly most others, is that the tortfeasor is not to receive the benefit of a compromised medical bill. Indeed, where a medical bill is voluntarily compromised, a collateral source deduction is unavailable for the difference between the amount actually paid and the amount of the bill. See Hassett v. New Haven, 49 Conn.Sup. 7 (2004) (Blue, J.), aff'd., 91 Conn.App. 245 (2005); see also Jones v. Kramer, 267 Conn. 336 (2004).
Anecdotes abound of physicians' receiving payment from patients during the Great Depression in the form of chickens. Suppose a doctor submitted to the patient a "real bill" for ten dollars, which reflected the value of services rendered, and he received a chicken from the patient in payment. That was all the patient could pay. If the patient successfully sued a tortfeasor and the value of the doctor's services were included in damages, the tortfeasor would owe ten dollars rather than the value of the chicken. The one feasing the tort ought not receive the benefit of the doctor's beneficence. The law developed, of course, in days before the prevalence of health insurance, health maintenance organizations, medicare and the brave new world of medical economics.
The collateral source deduction is limited by statute to the amount actually paid by the qualified collateral source. See General Statutes § 52-225a.
The issue presented, however, is not one involving voluntarily reduced medical bills or deductions for payments actually made by qualified collateral sources. Rather, it is about the amount of the medical bill properly presented to the trier of fact in the first place. The amount is statutorily defined as "the cost of reasonable and necessary medical care." General Statutes § 52-572h(a)(1). One may well argue that if the provider has agreed that the amount paid by SAGA is the entire amount that she can collect, then that is the real amount of the "cost" of that particular service. If there is no recourse against the plaintiff for the difference between the amount paid by the collateral source and the amount of the provider's "full" bill, and if the provider has been paid the contractually designated amount, then it is hard to see how the "cost" of the service is anything other than the amount paid by the collateral source.
This is the result reached in Bonsanti v. Newman, 2006 WL 413011, though the route was different. There, Judge Gilardi held, quite persuasively, that an involuntary reduction in the bill in effect constituted a payment to the patient, which payment could then be deducted as a qualified collateral source payment.
The issue was largely answered, however, in Madsen v. Gates, 85 Conn.App. 383 (2004). Documentation which included both the "full" bills and the lesser amounts actually paid by the providers was introduced into evidence, and the jury were instructed that they were to ascertain the reasonable value of the services. Apparently the jury opted for the amounts actually paid. The Appellate Court affirmed because the claim had not been properly preserved, but it included, albeit in dicta, a most illuminating footnote:
We decline to review the plaintiffs' claim for lack of preservation. However, our opinion should not be considered an imprimatur to use such an instruction in the future unless the evidence shows a windfall recovery would otherwise result because statutory or contractual provisions prevent a medical provider from billing the patient for any uncovered excess, and no subrogation rights against the plaintiff could be exercised for the amount actually paid by the third party payer. The jury should not be permitted to consider the fact that bills are partially paid in determining the reasonable value of medical services. Permitting juries to hear evidence as to partial payment without more could be unfair. For example, evidence that an impoverished individual paid only $10 toward his $10,000 medical bill, without evidence that the medical provider had accepted the $10 as payment in full, would not support an inference that that was all the services were worth. Such an inference clearly would be improper as $10 could not fairly be deemed the reasonable value of those services simply because that was all the patient could afford to pay until that point.
Madsen v. Gates, supra, 390-91 n. 4.
Connecticut has, of course, a policy against double recovery which results in windfalls. See, e.g., Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 735 (2001); Haynes v. Yale New Haven Hospital, 243 Conn. 17, 22 n. 6 (1997). In the case presented, the award of medical bills greater than actually paid and, of course, greater than any payer's subrogation right, is a windfall. There is no ability on the part of anyone to collect the difference, and the provider of service has contractually agreed to the amount paid.
As stated previously, there appears to be no quarrel with the math. The jury awarded as past economic damages the amount of $422,598.98. In a separate interrogatory, the jury found proved and awarded the full amount of medical bills presented to them, which was $222,918.98. Pursuant to the documentary evidence, the amounts actually paid, the co-pays and the outstanding amounts due are $91,722.21. As to this issue, then the defendants are entitled to a remittitur in the amount of $131,196.77.
2. Motion for Remittitur — Reduction in Past Economic Damages — Lost Wages.
The defendants also claim that a remittitur should be ordered as to the amount of lost wages awarded. The analysis as to this issue is less challenging legally. It is simply whether there was sufficient evidence on which the jury could have reasonably found as it did. Because ordering a remittitur is conceptually setting aside the verdict, the considerations are the same. In deciding whether to set aside a verdict on the ground of insufficiency of evidence, the court must inquire whether the jury reasonably could have returned its verdict on the evidence presented. The guidelines are succinctly stated in Palomba v. Gray, 208 Conn. 21, 24 (1988):
"The supervision which a judge has over the verdict is an essential part of the jury system . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality." Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902). The court has a duty to set aside the verdict where the jury's action is so unreasonable as to suggest that it was the product of such improper influences. State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983); Roma v. Thames River Specialties Co., 90 Conn. 18, 19-20, 96 A. 169 (1915). A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury. Roma v. Thames River Specialties Co., supra, 20.
The test is not only whether a scintilla of evidence exists to support the verdict, but also whether the jury could have reasonably reached its conclusion. The decision-making process is of course tempered by the fact that parties have a constitutional right to jury trials, and a court is not empowered to substitute its judgment for that of the jury, unless the jury, in the court's estimation, could not reasonably on the evidence have reached its result. Palomba v. Gray, supra, 25. The theory is that if the jury could not have reasonably reached its conclusion on the evidence, then its verdict must have resulted from mistake, bias, prejudice, corruption or some other improper reason. ". . . `A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Maroun v. Tarro, 35 Conn.App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994).' Connecticut National Bank v. D'Onofrio, 46 Conn.App. 199, 214-15, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997)." Card v. State, 57 Conn.App. 134, 138 (2000).
Because the total amount of past economic damages awarded was the amount of $422,598.98, and the amount of $222,918.98 was specifically the amount of medical bills included in the amount, then the amount of lost wages awarded had to be the difference between those two amounts, or $199,680. The defendants claim that that amount could not possibly be based on the evidence.
A very brief summary of salient portions of the trial may be appropriate. The plaintiff Jo-Ann Smallridge underwent a series of operations beginning in September 2000. Her fundamental claim is that the defendant Dr. Fabry improperly evaluated and failed properly to correct for her propensity to bleed, which propensity was a consequence of hepatitis C. As a result of bleeding during her first surgery, she developed a hematoma in the pelvic area of her abdomen which became infected. This surgery was followed by a series of operations, including small bowel resections, colostomy, hernia repairs and drainage of hematomas. The last surgery occurred in February 2002; trial was held in June 2006.
The same result could have been reached had the jury decided that the initial hematoma should have been addressed by percutaneous drainage. I don't know precisely what avenue the jury took.
The wage history is somewhat complicated. She had been making about $16 per hour as a laborer in construction through the mid-1990s, but was injured and no longer pursued construction. Prior to the series of medical events forming the basis for this trial she was cleaning houses, but no evidence of the earned remuneration was presented. She was also completing training for employment as an assistant in the medical field. Her earnings were understandably interrupted by the progression of operations, though she did work for several periods during the course of the operations. At one point she worked for $11.50 per hour in the medical field. She worked from June 2004, through March 2005, at Foxwoods. If she had never worked after the first operation, the jury's award of about $200,000 for lost wages would reflect a yearly income for the years between the first operation and the trial — with no consideration for taxes — of almost $40,000. To make $40,000 a year, one's hourly wage, with a 40-hour work week, would be about $20/hour — which is almost twice as much as she ever made in the period of time immediately prior to the operation and from then until trial. There was no expert evidence as to the hourly wage to be expected of one who had completed her training in the medical field. When she did work in the medical field, as noted above, she made about $11.50 per hour. There is, in sum, no evidence on which the jury reasonably could have reached its award.
I have reviewed the defendant's calculations regarding the maximum amount of lost wages provided by the evidence and find it to be reasonable. That amount — calculated by using an hourly wage similar to what she actually made, and applying it to all of the time reasonably not working — comes to $50,080. To allow for possible error in calculation, I come to the conclusion that the greatest amount that the jury possibly could have found, with a rational basis in the evidence, would be $75,000. As to this portion of the verdict then, I order a remittitur in the amount of the difference between $199,680.00, the amount awarded, and $75,000, which is $124,680.00. The total amount of the remittitur for the category of past economic damages is, then, $255,876.77.
3. Motion for Remittitur — Future Economic Damages.
The jury awarded the amount of $860,429.37 for future economic damages. Because there was considerable question at the time whether sufficient evidence had been presented to support an award of future economic damages, the court submitted this category as a separate item. The defendant claims that there is no evidence on which the jury could have rationally found future medical bills or loss of earning capacity. I agree in part.
The test for whether evidence supports an award for future medical costs has been stated fairly frequently in our jurisprudence. The fundamental principle is there must be some reasonable basis in the evidence for a jury to find that future medical bills are more probably than not likely to occur, with the understanding that prognostication is necessarily imprecise:
It is well established that "[i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities." Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956). Consequently, as we stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971), "as to future medical expenses, the jury's determination must be based upon an estimate of reasonable probabilities, not possibilities." Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, supra, 221 Conn. 481. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, "[f]uture medical expenses do not require the same degree of certainty as past medical expenses"; id., 479; "[i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . when there is also a degree of medical certainty that future medical expenses will be necessary." (Emphasis added; internal quotation marks omitted.) Id., 478-79.
Marchetti v. Ramirez, 240 Conn. 49, 54-55 (1997).
The defendants argue that there was no explicit testimony regarding the probability of future medical expenses which may be caused by the negligence of Dr. Fabry, nor was evidence from which such expenses could logically be inferred presented. The plaintiff suggests the contrary: because the patient had experienced a series of medical misadventures with continuing symptoms, the plaintiff's expert medical witness had opined that at least one operation was probable, and there was evidence of past medical bills, an inference of future medical bills was logical.
An examination of the state of the evidence in this case is critical. The patient did have seven operations of differing degrees of severity between September 2000, and February 2002. These were for procedures such as dealing with the bowel resection and repairing hernias, draining hematomas, and retrieving a sponge left in the course of one surgery. She testified that she did not want to go through any more surgery. As of the time of trial, more than four years had passed without surgery.
Dr. Steven Cohen was the expert physician retained by the plaintiff. He was a somewhat colorful witness who, it is fair to say, most likely persuaded the jury. My observation during trial was that he did not hold back opinions with an excess of caution. As to future medical procedures, however, he was quite circumspect. He testified that she currently had a hernia which "probably ought to be fixed." Beyond that, he testified that she had permanent injuries as a result of the operations, including but not limited to adhesions, especially in the bowel area, and a great deal of scarring. He testified that she was "at risk" for small bowel obstructions and more hernias. There was no evidence as to the percentage chance of any of these events, no evidence of likely costs of medical procedures and no expression of an opinion that anything other than a hernia repair was more likely than not going to occur.
It may be useful to compare some of the evidential situations in other cases. In Marchetti, supra, the plaintiff had had to stop working because of a deteriorating medical condition about three years after the accident forming the basis for that case. He had a cervical discectomy and fusion four years after the accident. Six years after the accident he was cleared for light duty in construction. The jury could have found a 30% permanent partial disability to the cervical spine and 15% to the lumbar. The expert testified that he was "likely" to incur future medical expenses. He did not testify to any precise cost of treatment, but the jury had before them evidence that the plaintiff had treated up to the time of trial and knew the costs of treatment before trial. In Marchetti, the Supreme Court did not overturn the trial court's decision not to disturb the jury verdict: if the jury has evidence concerning the sort of treatment and cost of treatment up to the time of trial, and if it can be logically inferred that the plaintiff will continue to seek the same kind of treatment in the future, then an award of future medical costs is not unreasonable. Id., 55-56. An interesting feature of Marchetti is that it is impossible to tell what amount of future medical damages were actually awarded, or even if future medical bills were awarded, because all economic damages, past and future, medical and wage loss, were all lumped into the single category of economic damages. See id., 53-54, notes 6, 8.
Similarly, in Seymour v. Carcia, 221 Conn. 473 (1992), the plaintiff endured pain and underwent treatment up to the time of trial. A doctor testified that the plaintiff would "in all probability" have relapses and he had "no doubt" that she would require medical care in the future. Future economic loss for medical treatment was awarded in the amount of about $68,000. The court noted that the cost and frequency of past medical treatment may be used as a yardstick for future expenses if it can reasonably be inferred that the plaintiff will continue to seek the same kind of treatment in the future. Id., 478. Here, she had suffered relapses up to the time of trial and the cost of treatment for the relapses was in evidence. Citing Jerz v. Humphrey, 160 Conn. 219, 224 (1971), for the proposition that an award of future damages must be based on an assessment of reasonable probabilities rather than possibilities and that the parameters of a reasonable award are somewhat uncertain, the court affirmed the trial court's denial of a motion to set aside the verdict.
It seems clear, then, that where there is a pattern or history of medical treatment continuing to the present, and there is testimony that the same sort of treatment is likely to continue into the future, it is not unreasonable for a jury to infer that similar costs will continue into the future and award future damages accordingly, even where specific testimony regarding future treatment is lacking. Where a necessary evidential component is missing, however, such an inference is not permissible. In Madsen, supra, the trial court had refused to allow the plaintiff's counsel to argue the amount of future medical bills to the jury because of insufficient evidence. The only evidence in that regard was the opinion of the plaintiff's medical expert, expressed in a letter, to the effect that the plaintiff "may need a conversion to a revision total knee replacement based on this loosening at some point in time with an overall expected cost of somewhere between $30,000 and $35,000 in terms of hospital and rehabilitation costs." The court held (at 396-97) that because the expert had opined only that the plaintiff may need further treatment, the jury could not reasonably have concluded that damages for future treatment should have been awarded. An expression that someone "may" need future treatment is not the expression of reasonable probability, but only of reasonable possibility, and thus may not form the basis for an award.
In Calvi v. Agro, 59 Conn.App. 732 (2000), the plaintiff suffered a 7% permanent partial disability of the cervical spine. The expert physician testified that she would be symptomatic for the rest of her life. If she undertook strenuous activity, she would expect to experience muscle spasm. He said that such patients occasionally return to him and receive physical therapy and medication. The plaintiff testified that she still experienced pain that limited her activities. The jury awarded $197,352 for future medical expenses. The Appellate Court affirmed the trial court's decision to set aside the verdict. Although the plaintiff had testified that she still experienced pain, the physician's testimony that a typical person with the plaintiff's condition may occasionally visit his office for therapy and medication was no more than a statement that the plaintiff might require further treatment. A combination of continuing symptoms and an expert's expression that she might need treatment does not remove the issue from the realm of conjecture. Id., 735-36. In the case at hand, there was indeed a flurry of operations, ending in February 2002. Since that time, the plaintiff has undoubtedly experienced discomfort and has suffered from a number of symptoms. Indeed, the jury awarded $750,000 for past and future pain and suffering, which amount is not contested at this point. Even if it may be said that a pattern of treatment had been established — which is somewhat doubtful, given the four and a half year hiatus in surgical treatment prior to trial and the patient's own unwillingness to undergo surgery — there is no expert expression that the same sort of treatment is more likely than not to continue into the future. The statement that the patient is "at risk" for future bowel and hernia difficulties is not an expression of probabilities, pursuant to the case law referred to above.
Further, there is no evidence of future costs sufficient to guide the jury. No one offered any direct evidence of the cost of future treatment. The evidence of medical costs submitted to the jury consisted of summaries by provider, and did not include any breakdown of the costs of any particular procedures. Without some guideline as to costs, either by direct testimony or through inference from the costs of similar procedures performed in the past, the jury is left to speculate. See Seymour v. Carcia, supra, 481 n. 7; Sheiman v. Sheiman, 143 Conn. 222, 225-26 (1956). There is sufficient evidence on which the jury could have concluded that a hernia repair would more likely than not take place, but there is no evidence on which a jury could determine the cost of that procedure. And there most certainly is no evidence on which an award of $860,000 can be rationalized.
The final question is whether there is evidence, regardless of future medical expenses, on which a loss of earning capacity can be logically inferred. Again, there was no expert economic testimony to that effect. Again, Ms. Smallridge testified that she intended to go back to work in the medical field. The considerations informing future loss of earning capacity are similar to those underlying the question of future medical expenses:
There was no testimony at all about taxes, reduction to present value, and other considerations ordinarily necessary to determine loss of earning capacity or loss of future earnings.
In order to recover for an impairment of earning capacity, there must be a reasonable probability that the injured person did sustain such an impairment and that the evidence allows a finding of the reasonable estimate of the dollar amount. Mulligan v. Rioux, 38 Conn.App. 546, 553, 662 A.2d 153 (1995). In 4 Restatement (Second), Torts § 920A, comment (b) (1979), it is noted that the plaintiff is entitled to damages for the future loss or the impairment of earning capacity. A plaintiff is entitled to the difference between the value of the impairment, given the injury, and what it would have been if there had been no harm to the plaintiff by the defendant. Id., § 924, comment (d). That sum should be reduced to its present value. Id., § 913A, comment (a). In evaluating the loss, the fact finder should take into account the type of work the plaintiff had done before the accident and the type of work he will be able to do after the accident in view of his physical condition, education, experience and age. Id., § 924 comment (d).
Nunez v. Palmer, 96 Conn.App. 707, 709-10 (2006)
It may be inferred that there would be a loss of future wages for whatever period of time was required for future medical procedures and recuperation, but again there was insufficient basis to find it more probable than not that any future surgery, other than a hernia repair, would occur. I do believe, however, that the jury had evidence on which it could find that a future hernia repair was reasonably likely to occur, and will somewhat arbitrarily allow $6,000 for the amount of wages Ms. Smallridge would lose as a result.
The jury had before it evidence that Ms. Smallridge customarily made $10-12 per hour in the relevant time frame. If we allow $15/hour, and allow 10 weeks recovery time, then the wage loss would be $6,000. I believe this is as much as the evidence rationally could allow.
The verdict is clearly beyond any rational consideration of the evidence in any event. As noted above, the plaintiff's usual hourly wage was in the ten to twelve dollars per hour range, at least since she left the construction industry. Suppose, however, that she made fifteen dollars per hour. With no deduction for taxes or other consideration, she would make $600 per week or $30,000 per year. If she worked for 16 years, until she was sixty-five years old, the total amount, with no reduction for present value or taxes, would be $480,000 — if she never works again.
The motion for remittitur is granted, then. The amount of the remittitur is $854,429.37 ($860,429.37 less $6,000.00) as to future economic damages.
Pursuant to General Statutes § 52a-216a, the plaintiff is ordered to remit a total of $1,110,306.14. Because the verdict is subject to a 15% reduction because of Hartford Hospital, the effective amount of the remittitur is $943,760.22. If the plaintiff does not agree to the remittitur within thirty days, the verdict is ordered to be set aside and a new trial ordered.
4. Collateral Source Deduction.
The plaintiff does not contest the defendant's request for the collateral source deduction (#155). Medical payments paid by a qualified collateral source total $17,950.09. The plaintiff paid $170.00 for premiums. The verdict shall be reduced by a further amount of $17,780.09.
5. Conclusion.
The verdict is set aside and a new trial ordered unless the plaintiff accepts judgment in the amount of $769,200.80. This amount represents the sum of $750,000 (non-economic damages), $91,722.21 (past medical expenses), $75,000 (past lost wages), and $6,000 (future wages), less $17,780.09 (collateral source), totaling $904,942.12, and times 0.85 (Hartford Hospital deduction) for a total of $769,200.80.