NO. 07-11-0133-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C FEBRUARY 22, 2012

__________________ ____________ JUDITH M. HENDERSON, APPELLANT V. TIMOTHY WAYNE SPANN & AMANDA SPANN, APPELLEES

__________________ _______________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009-549,365; HONORABLE LESLIE HATCH, JUDGE

__________________ _____________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

CONCURRING OPINION
Based upon the Texas Supreme Court's interpretation of section 41.0105 of the Texas Civil Practices and Reme dies Code, as found in Haygood v. DeEscabedo , 1 I agree with Justice Hancock's conclusion that this case should be reversed and remanded for a new trial due to the trial c ourt's erroneous exclusion of relevant

1 Haygood v. DeEscabedo , 54 Tex. Sup. Ct. J. 1377, No. 09-0377, 2011 Tex. LEXIS 514 (July 1, 2011).2 evidence. I write separately, however, to encourage the Texas Su preme Court to reexamine this issue, and to op ine that, but for the applicati on of this bindi ng precedent, 2 the trial court did not err in admitting evidence of unadjusted medical bills, nor did it err in applying the statutory caps imposed by section 41.0105 of the Texas Civil Practices and Remedies Code in a post-verdict proceeding

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A DMISSION OF E VIDENCE OF U NADJUSTED M EDICAL B ILLS

Section 41.0105 of the Texas Civil Prac tices and Remedies Code, enacted as part of the tort-reform measures passed by the 78th Legislature, provides that "[i]n addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the am ount actually paid or incurr ed by or on behalf of the claimant." In Haygood, the Supreme Court proceeds from the conclusion that because this statute excludes recovery of certain medical or health care expenses, it must, ipse dixit , exclude evidence of those expenses. The C ourt concludes that because a claimant is entitled to recover only medical ex penses that have eit her been paid or for which a medical provider is entitled to be paid, only evidenc e of adjusted or discounted charges is relevant to the issue of economic damages. 3 However, as to economic damages, the question still remains as to w hether there is an absolute correlation between the monetary amount of adjust ed medical bills and "reasonable and

2 Although not an absolute rule of law, the doctrine of stare decisis generally dictates that once the Supreme Court announces a proposition of law, that decision is considered binding precedent on all lower courts. See Southwestern Bell Telephone Co. v. Mitchell , 276 S.W.3d 443, 447 (Tex. 2008). While I recognize my duty to follow this precedent and my oath to uphold the Constitution and laws of this State, I respectfully believe further examination of this is sue will advance our jurisprudence and prove beneficial to the legal practitioners of this State.

3 See Haygood , 2011 Tex. LEXIS 514, at *25. A rule of law dictating that "only evidence of recoverable medical expenses is admissible at trial" is an ill ogical construct because the very purpose of the admission of evidence during trial is to det ermine what damages, if any, are in fact recoverable. Id. (emphasis added).3 necessary" expenses. Because medical bills can be adjusted, discounted, written-off, reduced, or gratuitously forgiven for any reason, it would be im possible to say that evidence of reasonable and necessary medical bi lls, albeit discounted or written-off, is always going to be irrelevant to the question of a given claimant's economic damages. For instance, evidence of unadjusted past m edical expenses may have probative value as to the extent of reasonab le and necessary future medical expenses, unless there is evidence that the future medica l expenses will be adjusted, discounted or written-off on the same basis as current medical expenses.
Without applying any balancing analysis, the Supreme Court concludes that "any relevance of [non-recoverable economic dam ages] is substantially outweighed by the confusion it is likely to generate, and therefore the evidence must be excluded." I respectfully disagree. In my opinion, unadjus ted medical bills have some "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be with out the evidence." Tex. R. Evid. 401. Therefore, because eviden ce of unadjusted medical bills is relevant, the probative value of that evidence and th e balancing of Rule 403 fact ors are questions best left to the trial court to decide on a case-by-case bas is. Under this construct, in an appropriate case with the use of proper instructions and ca refully tailored jury questions, evidence of both adjusted and unadjus ted medical bills could be subm itted to a jury. Furthermore, the admission of such evidence would provide the trial court with an evidentiary basis of limiting a plaintiff's recovery of medical or health care expenses to those amounts actually "paid or incu rred." While I agree with Haygood that adjusted m edical bills are4 relevant, I disagree with the premis e that unadjusted m edical bills are per se irrelevant and, therefore, inadmissible.

P OST - VERDICT A PPLICATION OF S ECTION 41.0105 C APS Call it an evidentiary rule if you must, 4 in the final analysis, section 41.0105 is a statutory cap on recoverable damages. A cap on damages is not something new to the Texas Legislature. As Justice Lehrmann points out in her dissent in Haygood , the Texas Civil Practices and Remedies Code c ontains many examples of legislative limitations being placed on the amount of recoverable damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (limiting re covery of exemplary damages); § 74.303 (limiting total recovery in a wrongful deat h or survival action based upon a health care liability claim); § 75.004 (limiting liability in certain premises liability suits); § 108.002 (limiting personal liability in suits against public servants). In each of these instances, courts of this State have chosen not to app ly those caps as a restriction on admissible evidence or the amount of dam ages that a jury could awar d. Instead, they have been handled as post-verdict adjustment s made by the trial court. There is no logical reason why we should carve out a special exception fo r the recovery of me dical or health care expenses which have been "p aid or incurred." Instead, as I propose here, with appropriate instructions and carefully tailore d jury questions, a jury should be able to hear all relevant evidence, including both adjusted and una djusted medical bills, when determining the amount of appropriate damages in a given case. Once a jury has fulfilled its responsibility of returning a ve rdict based upon the law and the evidence, the

4 See Haygood v. DeEscabedo , 54 Tex. Sup. Ct. J. 1377, No. 09-0377, 2011 Tex. LEXIS 514, at *28 (July 1, 2011) (Justice Lehrmann dissenting) (finding that the majority's opinion regarding the evidentiary nature of section 41.0105 "finds scan t support in the statute's language, is contradicted by the statute's legislative history, and runs count er to long-standing common law.)5 trial court could then insure the enforcement of legislative caps by making post-verdict adjustments when it renders j udgment on that verdict.

C ONCLUSION

Because I believe the trial court in th is case (reasonably relying upon applicable case law at the time) erred by excluding evid ence of adjusted medical bills, I concur with the majority decision to reverse and rem and this cause for a new trial.

Patrick A. Pirtle Justice