• Another Post-Howell Damages Consideration: The “Uninsured” Plaintiff
  • June 8, 2018 | Author: Brian T. Gravdal
  • Law Firm: Berman, Berman, Berman, Schneider & Lowary, LLP - Los Angeles Office
  • In Pebley, the court was confronted with yet another post-Howell question. More specifically, it was confronted with an insured plaintiff who chose to treat with doctors and medical facility providers outside his insurance plan. The court held that such a plaintiff shall be considered uninsured, as opposed to insured, for the purpose of determining economic damages.

    The court concluded: “[T]he trial court properly allowed Pebley, as a plaintiff who is treating outside his insurance plan, to introduce evidence of his medical bills. Pebley’s medical experts confirmed these bills represent the reasonable and customary costs for the services in the Southern California community. Pebley testified he is liable for these costs regardless of this litigation, and his treating surgeons stated they expect to be paid in full.”
    The defense took the position, among others, that all plaintiffs have a general duty to mitigate, i.e., plaintiffs must take reasonable steps to minimize the losses caused by a tortfeasor’s actions or omissions. As the seemingly valid argument goes, by opting to seek and utilize the “most expensive method to pay for treatment” (e.g., using a doctor on a lien rather than through his or her health insurance), a plaintiff has failed to mitigate his or her damages.
    In rejecting this argument (and more than conceivably giving strong ammunition to plaintiffs’ attorneys with respect to post-Howell trial strategy), the court opined: “A tortfeasor cannot force a plaintiff to use his or her insurance to obtain medical treatment for injuries caused by the tortfeasor. That choice belongs to the plaintiff … [Plaintiff] had the right to seek the best care available and the incentive to do so.”
    Defense trial counsel needs to be aware of these issues and evaluate his or her discovery and trial strategies accordingly, including retention of appropriate expert witnesses to opine regarding reasonable and customary medical services and costs