Reasonableness of Medical Bills

Brien Roche

In a Virginia personal injury action, there may arise issues of the reasonableness of medical bills.  Sometimes what the defense will do is to challenge reasonableness on the grounds that the bills are too high.  That challenge may have some merit if the provider who is being challenged, is a so-called “frequent flyer” for plaintiffs’ lawyers.  That is, if the provider is someone to whom the plaintiff was referred by the plaintiff’s attorney, there may be some merit to such a challenge.  Frequently these providers accept the plaintiff as a patient on what is called an “assignment”.  That assignment means that the provider doesn’t get paid until the case settles or goes to judgment.  Those providers tend to charge a higher rate because they recognize there is going to be a certain percentage of their bills that are non-collectable.  Therefore those types of providers may be subject to challenge.

However a more traditional provider who is simply treating a plaintiff as would any other healthcare provider typically renders bills that are “reasonable”.  Some providers of course charge more than others.  

Challenges to these traditional types of providers by the defense can and should be contested on several grounds.

Reasonableness of Medical Bills Presumed

The bills are presumed to be authentic and reasonable.  Virginia Code § 8.01-413.01(A) states that in personal injury actions, the authenticity and reasonableness of bills are rebuttably presumed as long as the bill has been properly identified. 

However that presumption can be overcome.  It may be rebutted by “…ascertained or established facts or by substantial evidence showing the true facts to the contrary”.  Kiddell v. Labowitz, 284 Va. 611, 627 (2012); Lewis v. House, 232 Va. 28, 31 (1986)  In other words the defendant must introduce evidence to show the bill is “…excessive in amount, considering the prevailing cost of such services”.  McMunn v. Tatum, 237 Va. 558, 568 (1989)  This evidence may be comparative studies of prevailing medical costs or expert testimony as to the prevailing cost. 

However expert testimony as to the prevailing medical cost on a national basis or based on some other locality probably does not meet the criteria.  Likewise simply reliance upon the Medicare rate is not appropriate because that has nothing to do with the prevailing geographical costs.  Likewise what insurance companies may pay or that a provider may accept is not evidence of what reasonable medical charges are.  Radvany v. Davis, 262 Va. 308, 310 (1989)  Also any such payments are a collateral source and therefore not admissible.

Medicare Reimbursement

As mentioned above, Medicare reimbursement is not necessarily the correct standard.  Medicare reimbursement in some instances may be evidence of what is reasonable and customary.  However if the plaintiff is not even eligible for Medicare, then certainly Medicare rates should not apply.  

The Plaintiff had no Choice as to Treatment

To the extent that the plaintiff has no choice as to treatment, then certainly the plaintiff can’t be charged with incurring bills that are unreasonable.  The bills are what they are.  If the plaintiff was taken by ambulance from the scene to a particular hospital, the plaintiff had no input as to what those bills might be.  Therefore the fact that the bills are higher than what is customary should not work to the detriment of the plaintiff.  

The Collateral Source Rule Governs

In Acuar v. Letourneau, 260 Va. 180 (2000), the court stated that the defense cannot reduce the amount of medical bills recoverable by the plaintiff to the amount actually paid by the carrier.  That is, the full amount of the bill is the proper amount to be presented to the jury.  The payment of such bills from a collateral source in no way relieves the wrongdoer of its obligation.  If this results in some windfall to the injured party, then so be it.  It is better that this windfall goes to the injured party than to the wrongdoer.  Schickling v. Aspinall, 235 Va. 472, 475 (1988)

Lack of Foundation

Experts who challenge the reasonableness of medical bills frequently base their opinions on certain assumptions.  Sometimes they base them upon an inadequate factual basis.  Opinions must be based upon fact.  Keesee v. Donigan, 259 Va. 157, 161 (2000)  In particular the defendant has to present evidence that the bills are excessive based upon the prevailing cost.  McMunn v. Tatum, 237 Va. at 568  These prevailing rates can be determined by looking at what other providers in that community with similar skill and experience charge.  Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 706 (2012) 

Where the expert looks at costs that predate the injury, that may not be a proper foundation.  That is if the defendant’s expert looks at five (5) years of costs for emergency room service, that could well confuse or mislead a jury.  The jury may conclude that those costs that predate the injury somehow are relevant to what should have been charged on the date of the injury.  That type of evidence simply is confusing and/or prejudicial pursuant to Rule 2:403.

Average Rates as not Necessarily Reasonable

Sometimes what the defense expert will do is try to average out rates over a period of time or based upon a particular locale.  However average does not necessarily mean reasonable.  Average is simply a mid-point between extremes.  Reasonable simply means that it is not extreme.  Although average could be reasonable, it is not always.  In other words a bill could be above average and still be reasonable.  Gerlach v. Cove Apts. LLC, 446 P.3d 624, 633 (Washington Ct. of App. 2019)

Balance Billing

Balance billing is where an out-of-network provider collects from health insurance or its equivalent and tries to collect the balance from the patient. For the most part that practice and the practice of simply not submitting bills to the carrier is outlawed. See Va. Code 38.2-3445.01 and 8.01-27.5. Also take a look at 14 V.A.C. 5-405-10 et seq. for rules governing balance billing for out-of-network services. 

Medicare Payments

Typically no balance billing is allowed if the provider has accepted Medicare. 5 U.S.C. § 8904(b)(1)(B)(ii); 42 U.S.C. § 1395.cc(a)(1)(A)(i). There is however some authority from a CMS handbook that the provider may opt to seek fully recovery from the liability settlement exclusively.  

Virginia Code § 8.01-27.5 does include Medicare in the definition of healthcare policy and requires the submission of bills within a specific time frame. If that governs, then it would be hard to imagine how a provider could await settlement of the liability claim. CMS Policy Memo SE 17018 does require the submission of medical bills within one year of the date of service.

Huge Air Ambulance Bills

In 2020 Congress passed the No Surprises Act.  It bans most surprise medical bills with the exception of those from ground ambulances.  What it says is that patients will only have to pay the in-network rate dictated by the insurance policy.  Providers and insurance will have to negotiate the remainder of the cost between themselves and if they can’t agree, then they arbitrate.  This should also protect the patient from out-of-network air ambulance bills.  

Call, or contact us for a free consult. Also for more info on reasonableness of medical bills see the Wikipedia pages. Also see the post on this site dealing with damage issues.