Obtaining Range-of-Payments Evidence from Out-of-State Medical Providers
In Massachusetts, a plaintiff injured by a defendant’s negligence is entitled to recover the value of reasonable medical services required to treat the injury. How a factfinder calculates those damages is a point of contention at many trials. In product liability litigation, and other tort litigation, plaintiffs frequently seek recovery of the full amount billed by their medical treatment providers for care associated with their alleged injuries, even where the amounts actually paid by insurers, government payors, or the plaintiff privately are substantially lower. For defendants confronting this issue, few cases are more important than Law v. Griffith.
In Griffith, the court held that a plaintiff’s medical bills are admissible under G.L. c. 233, § 79G as evidence of the reasonable value of medical services. At the same time, the court recognized a reality familiar to litigants and insurers alike: the amounts reflected on medical bills often bear little relationship to what providers accept as payment in today’s health care industry. Griffith therefore permits defendants to rebut billed charges by introducing evidence concerning the range of payments a provider accepts for the same services.
For defense counsel, Griffith creates a significant opportunity, but it also presents a recurring practical challenge. The witnesses positioned to provide the range-of-payments evidence Griffith contemplates are typically billing custodians or representatives employed by out-of-state medical providers, who lie beyond the subpoena power of Massachusetts courts. Massachusetts, moreover, has not adopted the Uniform Interstate Depositions and Discovery Act (“UIDDA”). As a result, obtaining admissible range-of-payments evidence requires defendants to plan early and to navigate Massachusetts’s own interstate discovery procedures, together with the law of the state where the witness is located, well before trial.
The Griffith Decision
In Griffith, the plaintiff was injured in an automobile accident and sought to recover the full amounts billed by her medical providers (more than $112,000) even though her providers had accepted substantially smaller amounts (roughly $16,000) as payment in full. The trial judge excluded the bills as irrelevant because they far exceeded what had actually been paid, and a stipulation as to the actual amount paid to the providers was introduced. The Supreme Judicial Court reversed and remanded for a new trial on damages, holding that (1) under G.L. c. 233, § 79G, a plaintiff’s certified medical bills are admissible as evidence of the fair and reasonable charge for medical services, and the statute does not authorize their exclusion merely because a provider ultimately accepted less; and (2) although evidence of the specific amounts actually paid on the plaintiff’s behalf is not admissible, a defendant may introduce evidence of the range of payments the provider accepts from payors for the type of services the plaintiff received.
The Griffith Court’s reasoning rests on the disconnect between what providers bill and what services are worth. Providers’ billed charges may bear little or no relationship to the reasonable value of their services, because providers negotiate discounts with insurers, government payors and private-pay patients, and are reimbursed at discounted rates. At the same time, the Griffith Court refused to admit the specific amounts paid on a plaintiff’s behalf, reasoning that those amounts would invite a jury to substitute the paid amount for reasonable value in violation of the collateral source rule. Range-of-payments evidence gives the jury a meaningful measure of reasonable value while keeping the plaintiff’s particular collateral sources out of the case.
Griffith also dictates how this evidence comes in. A provider’s representative may testify to the range of amounts the provider accepts for the services at issue, but may not identify the plaintiff’s insurer or the amount actually paid on the plaintiff’s behalf. The practical value of Griffith therefore depends entirely on counsel’s ability to secure that testimony, which, as discussed below, is frequently complicated by the provider’s out-of-state location.
Why Range-of-Payments Evidence Matters
- In many personal injury and product liability actions, plaintiffs seek to recover the full amount reflected on medical bills pursuant to G.L. c. 233, § 79G. Under Griffith, those bills are admissible as evidence of the reasonable value of medical services and cannot be excluded merely because a provider ultimately accepted a lesser amount.
- Griffith also recognizes that health care reimbursement structures often render billed charges an imperfect measure of reasonable value. Defendants may therefore call a medical treatment provider to testify regarding the provider’s stated charges and the range of payments the provider accepts for the services at issue.
- This evidence can be critical. In cases involving extensive treatment, the difference between billed charges and the range of amounts customarily accepted by the provider may amount to tens or hundreds of thousands of dollars, if not millions of dollars. Because Griffith expressly identifies range-of-payments evidence as relevant to determining the fair and reasonable value of medical services, counsel should view such testimony as a potentially important component of trial strategy.
Obtaining Range-of-Payments Evidence from Out-of-State Providers
Defendants relying on Griffith may often find the witness possessing range-of-payments information is located out of state and beyond the subpoena power of the Massachusetts courts. A Massachusetts subpoena can compel attendance only within the Commonwealth (see Mass. R. Civ. P. 45[e]), so counsel cannot simply subpoena an out-of-state provider. Instead, counsel must use interstate discovery procedures to reach the witness. Understanding these procedures is important for overcoming what can otherwise be a considerable obstacle.
Because Massachusetts has not adopted the UIDDA, a Massachusetts litigant cannot issue a self-executing foreign subpoena. Instead, the litigant must move for a letter rogatory from the court in which the action is pending. A letter rogatory is a formal request from the Massachusetts court to the court or other authority in the state where the witness is located. Armed with the letter rogatory, counsel may then proceed under the law of the witness’s state to obtain and serve a subpoena. If that state has adopted the UIDDA, the Massachusetts subpoena can be domesticated and reissued there. Counsel should generally consider the following steps:
- Identify the appropriate witness and jurisdiction: Determine which provider representative is knowledgeable about the billing and reimbursement practices relevant to the services received by the plaintiff, where that witness or provider is located, whether the state has adopted the UIDDA and any state-specific requirements for interstate discovery.
- Obtain the necessary Massachusetts authorization and the out-of-state subpoena: Move the Massachusetts court for a commission or letter rogatory authorizing the discovery. Then, use the procedure applicable in the witness’s state to obtain and serve a subpoena. Where that state has adopted the UIDDA, the Massachusetts subpoena is presented to the appropriate clerk or counsel and reissued there. The subpoena is served and enforced under the law of the witness’s state.
- Preserve the testimony for trial by deposition: An out-of-state, nonparty provider generally cannot be compelled to appear in person at a Massachusetts trial, because a Massachusetts trial subpoena reaches only witnesses within the Commonwealth and the interstate discovery procedures described above secure depositions, not trial attendance. Counsel should therefore plan to secure the testimony through a deposition taken in the witness’s state and to preserve it for use at trial. A deposition may be used at trial where the witness is out of the Commonwealth or the party has been unable to procure the witness’s attendance by subpoena, which is ordinarily the case for an out-of-state provider.
Key Takeaways
As plaintiffs continue to seek to recover the full amount of billed medical expenses, defense counsel should not overlook evidence showing what health care providers actually accept as payment for the same treatment. Such evidence can play a significant role in evaluating and challenging claimed medical damages. Griffith provides Massachusetts defendants with an important tool for challenging such medical damages by permitting evidence of the range of payments a provider accepts for the services at issue.
Where the appropriate billing witness is located outside Massachusetts, however, obtaining that evidence requires advance planning and careful use of interstate discovery procedures. Because Massachusetts has not adopted the UIDDA and cannot compel an out-of-state provider to appear live at trial, counsel should identify the appropriate provider representative early, obtain a letter rogatory from the Massachusetts court, proceed under the law of the witness’s state (including its version of the UIDDA where applicable), and preserve the testimony by deposition for use at trial.
For more information regarding the use of range-of-payments evidence in Massachusetts litigation or strategies for obtaining testimony from out-of-state medical providers, please consult a member of our Mass Torts and Industry-Wide Litigation Practice Group, including attorney Abbie L. Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeachmurtha.com; attorney Michael S. Melville at (617) 457-4001 and mmelville@harrisbeachmurtha.com, and attorney Ryan M. Brennan at (212) 313-5411 and rbrennan@harrisbeachmurhta.com, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York State in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts; Providence, Rhode Island; and Newark, New Jersey.
