IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

E1999- 02271- COA-R3-CV KELVIN JACKSON, ) C/A NO. 03A01-9906-CV-00198 ) Plaintiff-Appellee, ) KNOX CIRCU IT ) vs. ) HON. DAL E C. WORKMAN, ) JUDGE EDWARD W. SUNKENBERG, ) ) REVERSED AND REMANDED Defend ant-App ellant. ) FOR A NEW TRIAL

T. SCOTT JONES, BA NKS & JON ES, Knoxville, for Plaintiff-Appell ee. R. KR EIS W HITE, A DAIR , SCHU ERM AN & WHIT E, Brentw ood, for D efendan tAppellan t.

O P I N I O N Franks, J.

In this action f or damag es for injuries sustained in a motor ve hicle accide nt, a jury aw arded p laintiff $ 10,000 .00 as d amag es, and d efend ant has appea led.

The issue on appeal is

whether the Trial

Judge properly

applied Tennessee Code Annotated §24-5-113 t o the facts of thi s case. The Statut e provides in part: (a)(1) Proof in any civil action that med ical, hospital or doctor bills were

paid or incurred because of any il lness, dis ease, or inj ury may be itemized in t

he complaint or ci

vil warrant wit

h a copy of bill s paid or incurred att

ached as an exhibit

to the complaint

or civil warra

nt. The bills it emized and attached as

an exhibit shal

l be prima facie evi

dence that the bil

ls so paid or i

ncurred were necessar

y and reasonabl

e. (2) This sec tion shall app ly only in personal in jury actions brou ght in any court by

injured part

ies against

the persons responsible for causi ng such injuries. (3) This prima faci

e presumption shal

l apply t o the medical, hos

pital and doctor bill s itemized with copies of bill s attached to t he complaint or civil warrant

provided, that

the total a

mount of such bills

does not exceed the sum of two thousan d five hundred d ollars ($2,500).

. . . 

# FILED January 27, 20

00 Cecil Crowson, Jr. Appellate Court Clerk2 This action was originally filed in General

Sessions Court for Knox County by fi

ling a civil

warrant with att

ached itemized copies of plainti ff’s medical bills, whic

h totaled $3,356. 50. Plainti ff obtained a judgment i n Sessions Court and the defen dant timely app ealed the ca se to the Circ uit Court. In th e Circuit C ourt, defendant argue d that plaintiff’s medical bills should no t be introduced withou t expert proof , becau se they ex ceede d $2,50 0.00, on the auth ority of the above -quote d statute

. The Trial Judge apparent ly ruled t hat the stat

ute would apply up t

o $2,500.00 of the bills, a nd that without compet

ent proof, the pl

aintiff could not recover any amount above that limit for his medical expenses.

Plaintiff, throu gh his testimo ny, introduced a copy of a c hiropractic b ill totaling $2, 650.00 over the objec tion of the defendant. At the time t he bill was introduced, t

he Trial Judge instructed the j ury that t hey would later

be instruct

ed regarding “ the medic al bill presum ption” and that said presu mption on ly extended to the sum of $2,50 0.00, and that without fu rther proof plaintiff could no t recover more than $2,500.00 for his medical bills.

At the con clusion of th e proof, the Trial Judge charged th e jury and told the jury again tha t the statutory presu mption of reasonab leness and necessity only applied up to $2,500. 00. He further instructed that the presumption coul

d be rebutted by evide nce of fered b y the defe ndant.

On appeal, defendant insists that since the plai

ntiff’s tot

al medical expenses exceeded $2,500. 00, plainti ff should not have been abl e to utili ze the presumption creat

ed by the sta

tute, and tha

t under the st

rict const ruction of the statute, the bill which t

otals $2,650. 00 was improperly admi tted without expe

rt medical testim ony. This Co urt has prev iously recogn ized that plain tiffs are requ ired to present competent

proof regarding t

he reasonableness a

nd necessity

of their medical expen ses. Hogan v. Reese , 1998 WL 430627 (Tenn. Ct. App. 1998). I n Hogan this Court addressed the que stion regardi ng the applicabi

lity of T.C.A. §24-5-113 by stating: At common law, reasonableness a nd necessity

of medical expenses allegedly caused by the defe

ndant are elements

constitut

ing a part of the burden of proof resti

ng upon the plainti

ff. To relieve t

his burden on small claims,

the legislature by chapt er 734 of the Public Acts of 19783 created a prima facie presumption of nece ssity and reasonableness unde r certain conditions. This act of the General

Assembly is pre sently codi fied as T.C.A. §24-5- 113(a)(1)(2 ) and (3). Th e next cha nge in the p resent codif ication as to the 1978 act was chapter 481 of the Public Acts of 1981 r aising the original $500 maximum amount t o the present maximum amount of $2,500. As Hogan notes, the statu te simply mea ns that plaintiff s are not fo rced to bring in expert medical pr

oof of reasonableness

and necessity

where “the total

amount of such bills does not

exceed the sum of Two Thousand Five Hundred Dollars ( $2,500.00).” In this case, while plaintiff sai d he was only claiming $2,500.00 in medical expenses, the “total” of the bill he sought to introd uce at trial clearly exceeded $2,500.00 . In West v. Hudson , 1988 WL 122431 (Tenn. Ct. App. 1988), ( permission to appeal denied by the Supr

eme Court March 27, 1989), thi s Court explained t hat when a plaintiff has medical bills totaling more than $2,500.00, plaintiff m ust present expert medical test

imony regardi

ng the reasonablenes s and necessity of those charges. It was therefore e rror for the T rial Judge to a dmit into ev idence plain tiff’s medic al bills which ex ceeded th e $2,500.0 0 total.

The jury instruc tion given b y the Trial Cou rt was erron eous. No t only was the medica l bill improperly admitted without com petent proof, the Trial Co urt instructed the jury t

hat they had t

o presume that $2,500. 00 of plaintiff ’s medical expenses were reasonable and necessary. The Trial Court’s instruction in thi s case regard ing the m edical b ills was c learly erron eous an d was mislead ing to th e jury. See Ladd by Ladd v. Honda Motor Co. Ltd. , 939 S .W.2d 83, 94 ( Tenn . Ct. Ap p. 1996 ). Accord ingly, we vac ate the Trial C ourt’s judgm ent and rem and for a n ew trial.

The cost of the appeal i s assessed to plaintiff.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.4

___________________________ D. Michael Swiney, J.