CACI No. 3903A. Medical Expenses - Past and Future (Economic Damage)

Judicial Council of California Civil Jury Instructions (2024 edition)

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3903A.Medical Expenses - Past and Future (Economic Damage)
[Insert number, e.g., “1.”] [Past] [and] [future] medical expenses.
[To recover damages for past medical expenses, [name of plaintiff] must
prove the reasonable cost of reasonably necessary medical care that [he/
she/nonbinary pronoun] has received.]
[To recover damages for future medical expenses, [name of plaintiff] must
prove the reasonable cost of reasonably necessary medical care that [he/
she/nonbinary pronoun] is reasonably certain to need in the future.]
New September 2003
Sources and Authority
‘In tort actions, medical expenses fall generally into the category of economic
damages, representing actual pecuniary loss caused by the defendant’s wrong.’
‘A person who undergoes necessary medical treatment for tortiously caused
injuries suffers an economic loss by taking on liability for the costs of treatment.
Hence, any reasonable charges for treatment the injured person has paid or,
having incurred, still owes the medical provider are recoverable as economic
damages.’ (Williams v. The Pep Boys Manny Moe & Jack of California (2018)
27 Cal.App.5th 225, 237 [238 Cal.Rptr.3d 809].)
“[A] person injured by anothers tortious conduct is entitled to recover the
reasonable value of medical care and services reasonably required and
attributable to the tort.” (Hanif v. Housing Authority of Yolo County (1988) 200
Cal.App.3d 635, 640 [246 Cal.Rptr. 192], internal citations omitted; see also
Helfend v. Southern Cal Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [84 Cal.Rptr.
173, 465 P.2d 61 [collateral source rule].)
“The jury in this case was properly instructed with CACI No. 3903A, which
directs the jury to determine ‘the reasonable cost of reasonably necessary
medical care that [plaintiff] is reasonably certain to need in the future.’
(Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050 [208 Cal.Rptr.3d 363]; see
also Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 183 [217
Cal.Rptr.3d 519] [CACI 3903A is an accurate statement of the law].)
“The jury was properly instructed in this case to determine ‘the reasonable cost
of reasonably necessary medical care that [plaintiff] has received’ and ‘the
reasonable cost of reasonably necessary medical care that [plaintiff] is reasonably
certain to need in the future.’ But as a consequence of the discrepancy in recent
decades between the amount patients are typically billed by health care providers
and the lower amounts usually paid in satisfaction of the charges (whether by a
health insurer or otherwise), controversy has arisen as to how to measure the
reasonable costs of medical care in a variety of factual scenarios.” (Bermudez v.
Ciolek (2015) 237 Cal.App.4th 1311, 1328 [188 Cal.Rptr.3d 820].)
“[A] plaintiff may recover as economic damages no more than the reasonable
value of the medical services received and is not entitled to recover the
reasonable value if his or her actual loss was less. California decisions have
focused on ‘reasonable value’ in the context of limiting recovery to reasonable
expenditures, not expanding recovery beyond the plaintiff’s actual loss or
liability. To be recoverable, a medical expense must be both incurred and
reasonable.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th
541, 555 [129 Cal.Rptr.3d 325, 257 P.3d 1130], original italics, internal citations
“[A]n injured plaintiff whose medical expenses are paid through private
insurance may recover as economic damages no more than the amounts paid by
the plaintiff or his or her insurer for the medical services received or still owing
at the time of trial. In so holding, we in no way abrogate or modify the
collateral source rule as it has been recognized in California; we merely
conclude the negotiated rate differential - the discount medical providers offer
the insurer - is not a benefit provided to the plaintiff in compensation for his or
her injuries and therefore does not come within the rule.” (Howell, supra, 52
Cal.4th at p. 566.)
“[W]hen a medical care provider has, by agreement with the plaintiff’s private
health insurer, accepted as full payment for the plaintiff’s care an amount less
than the providers full bill, evidence of that amount is relevant to prove the
plaintiff’s damages for past medical expenses and, assuming it satisfies other
rules of evidence, is admissible at trial. Evidence that such payments were made
in whole or in part by an insurer remains, however, generally inadmissible under
the evidentiary aspect of the collateral source rule. Where the provider has, by
prior agreement, accepted less than a billed amount as full payment, evidence of
the full billed amount is not itself relevant on the issue of past medical
expenses.” (Howell, supra, 52 Cal.4th at p. 567, internal citation omitted.)
Howell offered no bright-line rule on how to determine ‘reasonable value’ when
uninsured plaintiffs have incurred (but not paid) medical bills. [Defendant] is
correct that the concept of market or exchange value was endorsed by Howell as
the proper way to think about the ‘reasonable value’ of medical services. But she
is incorrect to the extent she suggests (1) [Plaintiff] is necessarily in the same
market as insured health care recipients or wealthy health care recipients who
can pay cash; or (2) Howell prescribes a particular method for determining the
‘reasonable value’ of medical services.” (Bermudez, supra, 237 Cal.App.4th at p.
“In sum, the measure of medical damages is the lesser of (1) the amount paid or
incurred, and (2) the reasonable value of the medical services provided. In
practical terms, the measure of damages in insured plaintiff cases will likely be
the amount paid to settle the claim in full. It is theoretically possible to prove
the reasonable value of services is lower than the rate negotiated by an insurer.
But nothing in the available case law suggests this will be a particularly fruitful
avenue for tort defendants. Conversely, the measure of damages for uninsured
plaintiffs who have not paid their medical bills will usually turn on a wide-
ranging inquiry into the reasonable value of medical services provided, because
uninsured plaintiffs will typically incur standard, nondiscounted charges that will
be challenged as unreasonable by defendants.” (Bermudez, supra, 237
Cal.App.4th at pp. 1330-1331.)
“Here, we are confronted with an insured plaintiff who has chosen to treat with
doctors and medical facility providers outside his insurance plan. We hold that
such a plaintiff shall be considered uninsured, as opposed to insured, for the
purpose of determining economic damages.” (Pebley v. Santa Clara Organics,
LLC (2018) 22 Cal.App.5th 1266, 1269 [232 Cal.Rptr.3d 404].)
“[T]he inquiry into reasonable value for the medical services provided to an
uninsured plaintiff is not necessarily limited to the billed amounts where a
defendant seeks to introduce evidence that a lesser payment has been made to
the provider by a factor . . . . In such cases, the inquiry requires some additional
evidence showing a nexus between the amount paid by the factor and the
reasonable value of the medical services.” (Uspenskaya v. Meline (2015) 241
Cal.App.4th 996, 1007 [194 Cal.Rptr.3d 364].)
“Where a medical provider has (1) rendered medical services to a plaintiff, (2)
issued a bill for those services, and (3) subsequently written off a portion of the
bill gratuitously, the amount written off constitutes a benefit that may be
recovered by the plaintiff under the collateral source rule.” (Sanchez v. Strickland
(2011) 200 Cal.App.4th 758, 769 [133 Cal.Rptr.3d 342].)
“[T]he collateral source rule is not violated when a defendant is allowed to offer
evidence of the market value of future medical benefits.” (Cuevas, supra, 11
Cal.App.5th at p. 180.)
“It is established that ‘[t]he reasonable value of nursing services required by the
defendant’s tortious conduct may be recovered from the defendant even though
the services were rendered by members of the injured person’s family and
without an agreement or expectation of payment. Where services in the way of
attendance and nursing are rendered by a member of the plaintiff’s family, the
amount for which the defendant is liable is the amount for which reasonably
competent nursing and attendance by others could have been obtained. The fact
that the injured party had a legal right to the nursing services (as in the case of a
spouse) does not, as a general rule, prevent recovery of their value . . . .’
(Hanif, supra, 200 Cal.App.3d at pp. 644-645, internal citations omitted.)
“Two points about the sufficiency of evidence to support a judgment can fairly
be taken from Howell. First, the amount paid to settle in full an insured
plaintiff’s medical bills is likely substantial evidence on its own of the
reasonable value of the services provided. Second, consistent with pre-Howell
law, initial medical bills are generally insufficient on their own as a basis for
determining the reasonable value of medical services. Ensuing cases have held
that a plaintiff who relies solely on evidence of unpaid medical charges will not
meet his burden of proving the reasonable value of medical damages with
substantial evidence.” (Bermudez, supra, 237 Cal.App.4th at p. 1335, internal
citations omitted.)
Nor is it necessary that the amount of the award equal the alleged medical
expenses for it has long been the rule that the costs alone of medical treatment
and hospitalization do not govern the recovery of such expenses. It must be
shown additionally that the services were attributable to the accident, that they
were necessary, and that the charges for such services were reasonable.”
(Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 216 [16 Cal.Rptr. 308].)
“The intervention of a third party in purchasing a medical lien does not prevent
a plaintiff from recovering the amounts billed by the medical provider for care
and treatment, as long as the plaintiff legitimately incurs those expenses and
remains liable for their payment. Nor does the rule [that a plaintiff in a tort
action cannot recover more than the amount of medical expenses he or she paid
or incurred, even if the reasonable value of those services might be a greater
sum] forbid the jury from considering the amounts billed by the provider as
evidence of the reasonable value of the services.” (Katiuzhinsky v. Perry (2007)
152 Cal.App.4th 1288, 1291 [62 Cal.Rptr.3d 309]; see also Moore v. Mercer
(2016) 4 Cal.App.5th 424, 436 [209 Cal.Rptr.3d 101] [“Nothing in Howell
suggests a need to revisit the issues we addressed in Katiuzhinsky”].)
“The fact that a hospital or doctor, for administrative or economic convenience,
decides to sell a debt to a third party at a discount does not reduce the value of
the services provided in the first place.” (Uspenskaya, supra, 241 Cal.App.4th at
p. 1003.)
“Because the provider may no longer assert a lien for the full cost of its
services, the Medicaid beneficiary may only recover the amount payable under
Medicaid as his or her medical expenses in an action against a third party
tortfeasor.” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827 [135
Cal.Rptr.2d 1, 69 P.3d 927], internal citation omitted.)
‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
“It is for the jury to determine the probabilities as to whether future detriment is
reasonably certain to occur in any particular case. [Citation.] It is ‘not required’
for a doctor to ‘testify that he [is] reasonably certain that the plaintiff would be
disabled in the future. All that is required to establish future disability is that
from all the evidence, including the expert testimony, if there be any, it
satisfactorily appears that such disability will occur with reasonable certainty.
[Citations.]’ [Citation.] The fact that the amount of future damages may be
difficult to measure or subject to various possible contingencies does not bar
recovery.” (J.P., supra, 232 Cal.App.4th at pp. 341-342.)
“[W]hile an injured plaintiff is entitled to recover the reasonable value of
medical services that are reasonably certain to be necessary in the future,
evidence of the full amount billed for past medical services cannot support an
expert opinion on the reasonable value of future medical services. It does not
appear, however, that [expert] used the full amount billed for past medical
services in making the calculations for her life care plan. We observe ‘the
“requirement of certainty . . . cannot be strictly applied where prospective
damages are sought, because probabilities are really the basis for the award.”
At the time of trial, the precise medical costs a plaintiff will incur in the future
are not known. Nor is it known how a plaintiff will necessarily pay for such
expenses. It is unknown, for example, what, if any, insurance a plaintiff will
have at any given time or what rate an insurer will have negotiated with any
given medical provider for a particular service at the time and location the
plaintiff will require the medical care. The fact finder is entrusted with the tasks
of evaluating the probabilities based on the evidence presented and arriving at a
reasonable result.” (Cuevas, supra, 11 Cal.App.5th at p. 182, internal citations
“[I]t seems particularly appropriate for the trial court to perform its traditional
gatekeeper role as to the admissibility of evidence and, pursuant to Evidence
Code section 352, to determine whether evidence that is minimally probative
should be admitted or whether it will require an undue consumption of time to
try the collateral issues that evidence of what a third party paid for an account
receivable and lien will necessarily raise.” (Moore, supra, 4 Cal.App.5th at p.
“[E]vidence which might be admissible in one case might not be admissible in
another. ‘[T]he facts and circumstances of the particular case dictate what
evidence is relevant to show the reasonable market value of the services at
issue . . . .’ (Moore, supra, 4 Cal.App.5th at p. 442.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1846 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-A, Damages:
Introduction, ¶¶ 3:1-3:19.4 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, 3:351 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.19-1.31
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.01, 52.03 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.192 (Matthew
California Civil Practice: Torts § 5:12 (Thomson Reuters)

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