Oral Argument Preview: More Medical Negligence Fundamentals. Moretz v. Muakkassa.

Update: On October 24, 2013 the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 9, 2013, the Supreme Court of Ohio will hear oral argument in the case of Moretz v. Muakkassa, 2012-0797.  This case presents several evidentiary questions pertaining to the admission of depositions and portions of a medical textbook, and the exclusion of a jury interrogatory and evidence of  medical bill “write-offs.”

Background

Larry Moretz suffered from acute back pain for many years.  In 2005, a CT scan revealed a mass in his pelvis.  Moretz was referred to Dr. Kamel Muakkassa, a neurosurgeon, who diagnosed Moretz with a particular cyst.  Muakkassa informed Moretz that his condition was rare and that neither he, nor anyone in the Akron area, had performed this type of surgery.  Moretz decided to proceed with surgery in Akron and Muakkassa referred him to a general surgeon, Dr. Gary Williams.  The actual role of Muakkassa during the surgery is disputed. Muakkassa claims he was merely an observer, not a participant, in the surgery. Moretz claims Muakkassa was consulting, evaluating, and advising Dr. Williams throughout the procedure.

As a result of the surgery Moretz lost all bowel, bladder, and sexual function.  In 2007, Moretz and his wife filed a medical negligence complaint against Muakkassa and Williams. Williams subsequently settled. The jury awarded plaintiffs $999,428.73, later reduced by $235,000 in set-offs.  Muakkassa’s motions for a new trial and judgment not withstanding the verdict were denied. (Dr. Muakkassa has since died).

Use of Video Deposition at Trial

Moretz planned to use a video deposition of his expert witness at trial in place of live testimony. However, he did not file the video or the deposition transcript with the trial court.  After the jury was empanelled, Muakkassa invoked Civ. R. 32(A) and requested the trial court to prohibit Moretz from mentioning his expert witness and to preclude Moretz’s use of the video and deposition at trial. The trial court recognized that Moretz had failed to comply with Civ. R. 32(A), since he did not file the deposition at least one day before trial as the rule required.   However, the court excused Moretz’s failure because “there [was] no surprise” to Muakkassa since he was provided a copy in advance.

Use of Medical Text on Cross Examination

On cross-examination of Muakkassa’s expert witness, Moretz used two illustrations from a medical textbook to show Moretz’s condition. The defense expert did not acknowledge either illustration as an accurate description of what had happened in this case.  In addition to using the images as illustrations, Moretz sought to introduce the illustrations as trial exhibits.  Muakkassa objected, citing inadmissible hearsay under Evid. R. 803(18).  The trial court admitted the illustrations.

Evidence  of Write-Offs

At trial, Muakkassa wished to present evidence of amounts “written-off” of the full amount of Moretz’s medical bills.  The trial court granted Moretz’s motion in limine to exclude this evidence because of the lack of a proper foundation.   The court concluded that the admission of the “write-offs” required establishing their reasonableness through expert testimony.

Defendant’s Proposed Jury Interrogatories

Finally, Muakkassa proposed jury interrogatories, one of which asked the jury to identify the manner in which jurors found Muakkassa negligent.  Acknowledging the mandatory nature of such interrogatories under Civ. R 49, the trial court declined to submit the interrogatory.  The court stated that there was only one allegation of negligence and, therefore, no need for this defense interrogatory.

Muakkassa appealed to the Ninth District Court of Appeals.

Court of Appeals Decision

The Ninth District Court of Appeals affirmed the judgment entered on the jury’s verdict.  The Ninth District held that the trial court appropriately exercised its discretion in all the contested rulings. Muakkassa appealed to the Supreme Court of Ohio, which originally accepted only the fourth proposition of law, which dealt with the admissibility of  “write-offs”, but later reconsidered and accepted the case on all four proposed propositions of law.

Key Precedent, Rules and Statutes

R.C. 2317.421-Prima Facie evidence of the reasonableness of medical bills—this statute provides a short cut way to prove the reasonableness of charges for medical care.

Jaques v. Manton, 2010-Ohio-1838, permits the admission of “write-offs” to show the reasonableness of medical bills.  The Court permitted “write-offs” to be presented to the jury to assist in the determination of the reasonable value of medical services.  The “write-off,” or amount accepted as full payment, is appropriate to show the reasonableness and necessity of medical costs.

Civ. R. 32(A) states “[e]very deposition intended to be presented as evidence must  be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing.”

Evid. R. 803(18) permits statements in treatises on medicine, established as a reliable authority, to call the attention of an expert witness on cross-examination.  If admitted, the statements may be read into evidence but may not be included as an exhibit.

Civ. R. 49(B) directs the court to submit written interrogatories to the jury upon the request of any party.  The interrogatories may be directed at one or more determinative issues of fact or mixed issues of fact or law.

Dr. Muakkassa’s Argument

Neither Moretz nor the trial court denies that Moretz failed to comply with the filing mandate of Civ. R. 32(A).  Moretz did not file the intended deposition until the second day of trial, only after Muakkassa raised his objection.  Moretz stated that the requirement only came to his attention upon Muakkassa’s objection.  Ignorance of the law is no excuse and Moretz never offered good cause for the delay. To allow the Ninth District holding to stand would be to render the rule meaningless.  Allowing this evidence solely because Muakkassa would not be “surprised” does not constitute good cause as required by the rule.

Evid. R. 803(18) explicitly states that learned treatises may be admitted as evidence but may not be received as an exhibit.  The trial court and Ninth District blatantly disregarded this prohibition by allowing the illustrations to be admitted as an exhibit.  This admission prejudiced Muakkassa because the jury was able to consider the medical textbook illustration as representative of Moretz’s condition, however, the condition depicted was not at all the condition Moretz suffered from.  Additionally, Muakkassa claims the exhibit was not properly identified or authenticated.

Muakkassa argues that the trial court was obligated to submit his interrogatories to the jury under Civ. R. 49(B).  The interrogatory regarding negligence was a proper inquiry about factual determinative issues.  Moretz’s expert himself identified numerous sources of negligence.  Disallowing the interrogatory on the grounds that there was only one allegation of negligence is a glaring deviation from Moretz’s own claim.

Finally, Muakkassa argues that the appellate decision requiring expert testimony on the reasonableness of “write-offs” conflicts with the Court’s decision in Jacques v. Manton, which clearly holds that evidence of “write-offs” is admissible without expert testimony. Allowing this incorrect interpretation would create disparities in the treatment of plaintiffs, who are not required to show reasonableness through expert testimony when introducing medical bills, and defendants, who would be required to produce expert testimony to show the reasonableness of “write-offs.”  Defendants should be allowed to introduce evidence of “write-offs” in exactly the same way plaintiffs introduce evidence of the medical bills themselves.

Muakkassa argues that the above misinterpretations and misapplications of Civ. R. 32(A), Evid. R. 803(18), Civ. R. 49(B), and Jaques will cause continuous confusion and conflict throughout the state.

Moretz’s Argument

Moretz argues that Muakkassa was not prejudiced by the trial court’s admission of the deposition.  The purpose of the filing requirements in Civ. R. 32 is to put the parties on notice that the deposition testimony may be used at trial.  Muakkassa was on notice and not surprised at trial that Moretz intended to use the video.  Civ. R. 32 is not to facilitate a technical victory by avoiding a decision on the merits.

The medical textbook illustration was, in fact, properly identified and authenticated by Muakkassa’s expert witness.  Furthermore, the defense expert agreed that the image, while not depicting the exact condition Moretz experienced, was “very similar.”  The treatise from which the illustration was taken was not introduced as an exhibit, nor was any text.  There was no dispute over the accuracy of the image.

As to the defendant’s proposed jury interrogatory, the trial court’s determination of only one allegation of negligence is correct—it was Muakkassa’s failure to perform the neurosurgical aspects of Moretz’s surgery to avoid injury to nerves controlling bowel, bladder, and sexual function.  A court is not required to submit a proposed interrogatory to the jury where, as here, it was not directed at a determinative issue of fact or law.  Under Civ. R. 49, the parties themselves have the burden to propose proper interrogatories.  Muakkassa was provided the opportunity to amend his interrogatory but did not change it.

Finally, Muakkassa did not preserve his right of appeal on the issue of the trial court excluding the “write-offs.”  A ruling on a motion in limine is provisional only. Muakkassa failed to offer such evidence by proffer or otherwise at trial to preserve the issue on appeal. Additionally, pursuant to the pertinent statute, Muakkassa failed to submit copies of the write-offs he intended to present as evidence in a timely manner.  Muakkassa was not prevented from introducing the evidence outright, just from introducing it without the proper foundation. Muakkassa had the opportunity to rebut the statutory presumption of the reasonableness of the charges, by establishing  the reasonableness of the write-offs through expert testimony, but he chose not to.  This failure to raise the issue of reasonableness of the medical bill write-offs constitutes a waiver.  Jaques does not address whether evidence of write-offs may be presented without expert testimony.

 Muakkassa’s Proposed Propositions of Law

Proposition of Law I:

The Ninth District’s decision excusing a party from the mandatory filing requirements for depositions has effectively rendered Civ. R. 32(A) meaningless and the end result will be uncertainty throughout Ohio as to the requisite procedures for filing depositions pursuant to Civ. R. 32(A)

Proposition of Law II:

The Ninth District’s decision allowing for the admission of a portion of a medical textbook as a trial exhibit is both leally and factually flawed, in direct conflict with Evid. R. 803(18) and the end result will be uncertainty throughout Ohio as to the proper use of learned treatises

Proposition of Law III:

The Ninth District’s decision disallowing a jury interrogatory regarding appellees’ multiple claims of negligence is legally and factually flawed, is internally inconsistent and contradictory, is in direct conflict with decisions rendered by this court and other appellate courts throughout Ohio and effectively renders Civ. R. 49(b) meaningless

Proposition of Law IV:

The Ninth District’s decision requiring that evidence of “write-offs” of medical bills be supported by expert testimony is in direct conflict with this Court’s decision in Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838, 928 N.E. 2d 434 and has, consequently, redefined the collateral source rule as set forth by this Court.

Amicus Briefs in Support of Muakkassa

Several amicus briefs were filed in support of Muakkassa, particularly in support of his fourth proposed proposition of law. The amici include the Ohio Association of Civil Trial Attorneys; Ohio Insurance Institute and Property and Casualty Insurance Association of America; and Ohio Hospital Association, Ohio State Medical Association, Ohio Osteopathic Association, American Insurance Association, and Ohio Alliance for Civil Justice.

The amici argue that R.C. 2317.421 permits the introduction into evidence of final bills – including “write-offs” – as prima facie evidence of reasonableness of medical charges.  The statute eliminated the previous requirement to establish reasonableness through expert testimony.  There is no logical basis for allowing the plaintiff to introduce the original bill as prima facie evidence of reasonableness while denying the defendants the same opportunity for write-offs from the same medical bills. The amici also argue that write-offs are not part of a plaintiff’s reasonable medical expenses since no one pays them.

Amicus Brief in Support of Moretz

An amicus brief was filed by Summit County Association for Justice in support of Moretz.

The amicus rejected Muakkassa’s Third and Fourth Propositions of Law and offered its own Proposed Proposition of Law IV:

The introduction of evidence, in the form of medical bills, of the amounts that a plaintiff’s medical providers have accepted as full payment for their services to the plaintiffs is not sufficient by itself to overcome the presumption created by R.C. 2317.421, that a plaintiff’s medical bills are prima facie proof of the reasonable and necessary costs of the plaintiff’s treatment.  The presumption can only be overcome through the introduction of competent expert testimony that meets the requirements of Evid. R. 702.

The amicus argues the trial court’s rejection of Muakkassa’s proposed interrogatory was correct because Civ. R. 49(B) provides the trial court discretion to reject interrogatories that are inappropriate in form or content.  The interrogatory was not properly drafted, and, thus, its exclusion was appropriate.  Additionally, Muakkassa failed to preserve the exclusion of write-offs for appeal.  To introduce evidence of write-offs, Muakkassa must have established a proper foundation due to the complex nature of the bills themselves.

Student Contributor: Katlin Rust

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