SEQ CHAPTER \h \r 1THE EXTENT OF ATTORNEY-PHYSICIAN COMMUNICATIONS

The extent of an attorney’s ability to communicate with a doctor is stated in Va. Code § 8.01-399. That statute provides in pertinent part as follows:

A. Except at the request or with the consent of the patient, no duly licensed practitioner of any branch of the healing arts shall be required to testify in any civil action, respecting any information which he may have acquired in attending, examining or treating the patient in a professional capacity.

B . Notwithstanding subsection A, when the physical or mental condition of the patient is at issue in a civil action, facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no disclosure of facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence.
(Balance of statute not set out).

In a non-medical malpractice personal injury case, subsections A and B usually come into play. Under subsection (B), once a plaintiff puts in issue his physical or mental condition, then facts communicated to, or otherwise learned by a doctor, can be disclosed but only through discovery, or testimony at trial. See Harper v. B & W Bandag Ctr., 226 Va. 469, 311 S.E 104 (1984).

A question arises as to whether a treating physician, not named as a testifying expert, can be used by a defendant to render opinion testimony. Two circuit opinions on point were found, each reaching a different result. In Holper v. Gill, 13 Cir. LW 1627A (1994), the court ruled that a treating doctor, not named by the plaintiff, could give opinion testimony if the doctor consented and the defendant followed Rule 4:10 (the medical exam rule). In O’Dell v. Cedar Lakes Limited Partnership, et al., 19 Cir. L150335 (1997), the court ruled that a defendant can call a treating doctor to testify to opinions at trial. In that case, the plaintiff argued that the statute, by its terms, was limited to facts. The Court rejected that argument stating that the statute was silent on opinions, and since the rule was in derogation of common law, it must be strictly construed. The Court then concluded that opinion testimony is either not precluded or is it included in “any information” in subsection A.

Subsection D of Code § 8.01-399 was amended by the 1998 legislature to set forth the parameters of an attorney’s contact with a physician which are not subject to the Rules of discovery. A copy of the Amended statute is attached.

INCURRED MEDICAL EXPENSES IN THE THIRD-PARTY CASE

A hot issue in the third-party personal injury case is what is the amount of the medical bills incurred by a plaintiff. The answer to that question determines the amount of bills that get submitted to the jury. This first became an issue in medical payment cases, with decisions split, some courts holding the full amount admissible, others reducing the plaintiff’s proof by the amount “written off” by a doctor. In 1997, the legislature added subsection (A)(3) to Va. Code § 38.2-2201 which defines when a bill is “incurred” for medical expenses benefits provided by an auto liability policy. There has been no statutory action on this issue in the third party context. Thus, counsel is free to argue the applicable case law.

The definition of incurred stems from the case of Sykes v. Brown, 156 Va. 881, 159 S.E. 202 (1931). In that case, the court held the fact that the plaintiff did not pay a bill which he sought to have admitted was not determinative of the issue. Rather, the question was whether the plaintiff was liable for paying the bill. Sykes, 156 Va. at 887. The argument made by the defense to exclude written off bills is that the plaintiff was never liable for the written off amount, and therefore, consistent with Sykes, never incurred the expense and therefore the defendant is not liable for it. Many circuit courts agreed with this analysis. See Comley v. Shephard, 15 Cir. CL95487 (1997).

The argument in response to the defendant’s position is that the collateral source rule is violated by reducing the plaintiff’s bills by the amount written off by the doctor. Virginia’s century long adherence to the collateral rule was most recently reaffirmed by the Court in Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988) in which the Court stated:

The collateral source rule is designed to strike a balance between two competing principles of tort law: (1) a plaintiff is entitled to compensation sufficient to make him whole, but no more; and (2) a defendant is liable for all damages that proximately result from his wrong. A plaintiff who receives a double recovery for a single tort injury is a windfall; a defendant who escapes, in whole or in part, the liability for his wrongdoing enjoys a windfall. Because the law must sanction one windfall and deny the other, it favors the victim of the wrong rather than the wrongdoer.
For more than a century, this Court has approved and applied the collateral source rule in tort cases.

Id. at 475 (citations omitted).

In addition, it can be argued that the financial benefits to be excluded by the collateral source rule are not limited to simply the amount of the bills paid. Rather, the full extent of the financial benefits obtained by the insured through purchase of the policy is to be considered.

In other words, if the defendant is liable in damages, the extent of his liability is not to be measured by deducting financial benefits received by plaintiff from collateral sources.

Owens v. Dixon and Savage, et. al, 162 Va. 601, 608, 175 S.E. 41 (1934).

Two recent cases in which the plaintiffs prevailed on this issue are Boehm v. Machado, Fairfax Cir., L165267 (1998) and Hill v. Tuttle, Roanoke City Cir. CL97-734 (1998). In both cases, the Court ruled that the defendants’ motions ran afoul of the collateral source rule. (In Hill, the issue was litigated in connection with defendant’s discovery motion on amounts written off.) (Note-both cases were decided before State Farm v. Bowers, discussed below) (copies attached).

Recently, the Virginia Supreme Court decided State Farm v. Bowers, Record # 971257 (1998). Bowers was a med pay case, not a third-party case. In Bowers, the Court ruled that the insured’s claim for medical expense benefits under the policy was to be reduced by the amount of bills written off by the doctors because he was not legally obligated to pay those amounts. (copy attached)

To rebut the use of Bowers in the third-party case, the author suggests arguing that Bowers did not involve or address the collateral source implications which exist in the third-party case. It is clearly established that if a windfall is to be had, the law chooses the innocent plaintiff over the careless defendant. See Schickling v. Aspinall, 235 Va. 472, 475, 369 S.E.2d 172 (1988). A windfall will be had by a defendant where a plaintiff has applicable health coverage. To demonstrate this to the Court, point out the difference in the amount of bills going to the jury in cases with coverage and those without. Then argue (if appropriate) that but for the plaintiff paying a premium, the bills submitted to the jury would be higher.

A second argument to be made to rebut the application of Bowers is that it will require a mini-trial on the issue of reasonableness of the bills. As stated by the Bowers Court, the fact that a doctor and a health plan have negotiated a fee for a service doesn’t prove the reasonableness of that fee. Evidence on reasonable is still required. An issue then arises as to how and when that issue gets resolved. Must there be a pretrial hearing where the defendant and the plaintiff must call experts to testify on this issue? The issue cannot be dealt with at trial without introducing insurance into the case.

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