In every personal injury case the charges assessed for the care provided are a crucial item of damages. In Nevada, a personal injury plaintiff may recover past medical damages but they are limited to the “reasonable medical expenses plaintiff has necessarily incurred as a result of the accident.”
To address this evidentiary requirement, I too often hear this lazy question. “Doctor, have all of your bills been within the normal and customary range for this community?” This is immediately met by an objection to foundation. Why? Consider this deposition testimony I obtained from a local pain management provider.
43:1 Q. Who does the billing for your practice?
2 A. I have a biller outside this office.
3 Q. Do you review medical bills from other
4 pain management providers in the Las Vegas area?
5 A. Not at all. Never seen one.
6 Q. Do you know what your competing pain
7 management providers in Las Vegas are charging for
8 their services as compared to yours?
9 A. No, I do not.
10 MR. LOWRY: I have no other questions.
Why does that testimony matter? This physician has no basis upon which to establish that his billing was reasonable. The plaintiff has the burden of demonstrating the bills for the treatment received were both reasonably and necessary. Testimony like this also leads to fun questioning like this from plaintiff’s counsel.
43:14 Q. Do you believe your medical bills are
15 reasonable given the current climate in Las Vegas,
17 MR. LOWRY: Objection. Foundation.
18 THE WITNESS: I would think so, yes. I
19 have never heard otherwise from anybody, so I’m
20 guessing. As I said, I do not know what other
21 people are billing and how they are billing.
I got along really well with this particular plaintiff’s counsel and he laughed when I objected because he recognized the problem too. I obtained similar testimony from a local orthopedist with a joint specialty.
Q. Do you handle the billing for your practice?
A. I do not.
Q. If you see me as a patient today, do you know how the billing is handled?
A. Okay. So basically, I have this electronic medical system. When I see a patient, I take x-rays, office visit. Then our biller generates the bill.
Q. Do you know how much you charge for any one particular procedure?
A. I think it’s the same charge we send to any insurance company. I don’t know the exact amount.
Q. Other than getting the reports, I would suppose, within a weekly basis or whatnot showing money coming in, money going out, like most small businesses, do you ever receive an actual chart that shows how much you charged for each patient’s treatment and stuff like that?
A. I don’t get it. But if I want, they can pull the record for me. It’s not something that would show up in my EMR.
Q. How do you know then that the charges that [patient] received for the medical care that she underwent were reasonable and necessary, other than your own?
A. Because at least all of my colleagues, friends, we have this billing system where we send the bill out to everybody the same, either Medicare, Blue Cross. Everybody gets the same bill. I don’t know if that answers your question. I mean, we don’t have different bills for different insurance patients.
Q. Do you personally review the bills before they go out?
A. I do not. I do not review my bills. But if there is a report and somebody sends it to me, I will look through it, and if it correlates with us.
Q. Does your practice use an MRI in-house?
Q. Do you know how much your practice charges for an MRI of the right knee like [patient] had?
A. I do. I know how much we charge for a cash patient.
Q. How much is that?
A. I think we charge about $350 for a cash patient.
Q. Do you know how much you charge for an MRI of the lumbar spine?
A. I think slightly higher than that.
Q. Have you ever practiced as a chiropractor?
A. Have I ever practiced chiropractic? I have not.
Q. How do you know then that the chiropractic is reasonable and necessary?
[Opposing Counsel]: Objection. Form. 
THE WITNESS: So reasonable is when you’re within the standard of the community. I mean, there are two aspects. One is reasonable, whether they should be charged or not with — are you talking about an amount or what?
BY MR. LOWRY:
Q. The amount.
A. The amount?
Q. Yes, sir.
A. If they have been practicing in this community for a while and everybody generates the same bill, it doesn’t matter what insurance this patient has.
Q. Forget about insurance for a moment because we won’t be able to get that out at trial anyway.
Q. You were talking about a range within the community?
Q. You don’t practice in chiropractic. You have another type of medical practice. So how do you know what the reasonable range would be for a chiropractor?
A. When I look at the amount for treatment, I’m using as an example for a typical office visit of a new patient, anybody would charge in a range of 3- to $600, depending on what specialty you have. A follow-up visit is anywhere from $75 to $150, depending on what specialty.
Q. How do you come up with that range?
A. How do I?
Q. Yeah. How do you come up with the office visit range and the follow-up range.
A. Looking at different bills I see throughout the years. Whenever I do these expert witness reports.
Q. Is the only time you review other physicians bills outside of your practice when you become involved with expert witness work?
This orthopedist too could not testify that his charges were reasonable because he had no basis upon which to compare them. An expert witness generally will not be able to testify if the only time they do whatever it is they are doing (comparing medical bills) is in the context of litigation.
Evidence on reasonableness of medical treatment is not a trivial point, although Nevada predictability has no case law that I have found yet that addresses it. If that is wrong, I’m sure someone will email me about it. Other states have considered it. In Washington state, a personal injury plaintiff “may recover only the reasonable value of medical services received, not the total of all bills paid. Thus, the plaintiff must prove that medical costs were reasonable and, in doing so, cannot rely solely on medical records and bills.” Stated another way, “medical records and bills are relevant to prove past medical expenses only if supported by additional evidence that the treatment and the bills were both necessary and reasonable.” “[T]he amount actually billed or paid is not itself determinative. The question is whether the sums requested for medical services are reasonable.”
Applied in Patterson the plaintiff “made no showing of reasonableness and necessity…. Thus, the trial court erred when it admitted the documents as proof of past medical expenses and when it shifted to [the defendant] the burden of proving that the costs and care were unreasonable and unnecessary.” Ultimately, there was no evidence to support an award of past medical damages.
Keep this in mind when evaluating recoverable damages.
 Nev. J.I. 5PID.1(1) (2011).
 Wrong objection, as described in the January 28, 2013 Compelling Discovery post.
Patterson v. Horton, 929 P.2d 1125, 1130 (Wash. App. 1997).
 Hayes v. Wieber Enters., 20 P.3d 496, 499 (Wash. App. 2001).
 Patterson, 929 P.2d at 1131.