Statutory Changes Regarding Medical Expenses
While the Governor's latest budget contained many sweeping changes, a small change in one hearsay exception will have a broad impact on litigation. The newest exception creates a presumption concerning medical bills under the existing exception to healthcare provider records. The addition was purportedly a codification of Leitinger v. Van Buren Management, Inc., 2007 WI 84, 302 Wis. 2d 110.
Wis. Stat. §908.03(bm)Presumption. Billing statements or invoices that are patient health care records are now presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient.
Any party attempting to rebut the presumption of the reasonable value of the health care services provided may not present evidence of payments made or benefits conferred by collateral sources.
The "codification," generates more questions than it answers. The holding of Leitinger was "that the collateral source rule prohibits parties in a personal injury action from introducing evidence of the amount actually paid by a collateral source for medical treatment rendered to prove the reasonable value of the medical treatment." Under Leitinger, the plaintiff still had the burden of producing evidence that the bills were reasonable and necessary. The statute shifts the burden upon the defendants to rebut the presumption. To gain the benefit of the presumption, the plaintiff need only obtain certified copies of the billing statements. The statute then provides that a party cannot use the amounts actually paid by collateral sources as evidence of the reasonable value of the health care services.
The statute also states that the invoices are presumed to be "necessary," but does not clarify what is meant by necessary nor does it describe the means or quality of evidence required to rebut the presumption. If the charge was necessary, is the treatment rendered automatically assumed necessary as a result of the accident or will the plaintiff still be required to provide expert testimony linking the care to the injury? Will a court require expert testimony to rebut the necessary presumption or is it enough to undermine the credibility of a plaintiff as to the legitimacy of the complaints? It certainly appears likely that this statute will raise many more questions than Leitinger raised and further litigation will be required to flesh out the extent of this "codification."
