1. Evidence--medical bills--negligence action--sufficient
causal relationship
There was a sufficient foundation for the admission of
medical bills in an automobile negligence action where plaintiff
testified that she began to experience severe pain and suffering
in her neck, back, and shoulder immediately following the
collision and a doctor's testimony established a causal
relationship between the accident and the injuries.
2. Evidence--medical bills--rebuttable presumption of
reasonableness
The reasonableness of plaintiff's medical bills in an
automobile accident case was conclusively established under
N.C.G.S. § 8-58.1 where plaintiff testified concerning her
injuries and her medical treatment and introduced copies of her
medical bills, but defendants presented no evidence and did not
rebut the statutory presumption that the bills were reasonable.
3. Appeal and Error--preservation of issues--failure to cite
assignment of error
An argument was not addressed on appeal where it did not
cite an assignment of error and none of the assignments of error
included any reference to the argument.
4. Trials--reopening evidence after party rested--no abuse of
discretion
The trial court did not abuse its discretion in an
automobile accident case by allowing plaintiff to reopen her
case after she had rested where defendants moved to exclude
testimony about plaintiff's medical bills on the grounds that she
had failed to submit the bills to the jury in support of her
testimony and the court allowed plaintiff to reopen her case for
the limited purpose of introducing those bills.
The Robinson Law Firm, PLLC, by William C. Robinson, for
defendant-appellants.
James R. Carpenter for plaintiff-appellee.
BIGGS, Judge.
On 17 December 1994 a car driven by Anita Shive Painter
(defendant) and owned by her husband Mark T. Painter (collectively,
defendants) struck a car operated by Carolyn McCurry (plaintiff).
This appeal arises out of a civil negligence action brought as a
result of that collision. The plaintiff filed suit against
defendants on 15 March 1999, alleging that defendant's negligence
had caused the accident, and that the accident was a proximate
cause of plaintiff's injuries. Prior to trial, defendants
stipulated to defendant's negligence as the cause of the accident.
However, defendants denied that the accident had caused any injury
or damage to plaintiff. Thus, there were two issues to be
resolved: whether the accident caused plaintiff's injuries and, if
so, what damages were owed to plaintiff.
The case came to trial on 13 December 1999. At trial,
plaintiff testified concerning the accident, her injuries, and the
medical treatment she sought following the collision. Plaintiff's
testimony was that the accident had resulted in painful and
debilitating injuries to her back, neck, and shoulders, as well as
migraine headaches. Several lay witnesses also testified about the
accident and about its effect on plaintiff. Dr. Wheeler, a
physician who had treated plaintiff, testified about plaintiff's
injuries, the tests and treatments that plaintiff had undergone,
and about the causal relationship between plaintiff's complaints
and the collision. Defendants did not put on evidence. The juryreturned a verdict finding that defendant's negligence had
proximately caused plaintiff's injuries, and awarding damages of
$50,000. From this verdict and judgment, defendants appeal.
We note at the outset that defendants have not complied with
the North Carolina Rules of Appellate Procedure. Specifically,
N.C.R. App. P. 10(c)(1) requires that assignments of error “shall
state plainly, concisely and without argumentation the legal basis
upon which error is assigned.” Rule 10(c)(1). Defendants failed
to state a legal basis for any of their assignments of error.
Moreover, defendants did not comply with N.C.R. App. P. 28(b)(5),
requiring an appellant to include with each argument that is
briefed “a reference to the assignments of error pertinent to the
question[.]” Rule 28(b)(5). Defendants' violation of these rules
has made it difficult for this Court to address the merits of their
arguments. Nonetheless, in the interest of justice and pursuant to
N.C.R. App. P. 2, where it is possible to connect an argument to a
specific assignment of error, we will consider the substance of
defendants' contentions. We note also that defendants have not
presented arguments or case citations in support of assignments of
error seven, eight, or nine, which address the trial judge's
failure to grant defendant's motions for directed verdict and for
a new trial; nor are these assignments of error cited in
defendants' list of questions presented, or at the beginning of any
of defendants' arguments. Therefore, pursuant to Rule 28(b)(5),
these assignments of error are deemed abandoned, and will not be
considered.
[1]Defendants contend first that there was an insufficientfoundation for the admission of medical bills from the f
ollowing
health care providers: Presbyterian Hospital, Mecklenburg Radiology
Associates, Dr. James Sanders, Rehability Center, and Mecklenburg
Emergency Medicine. They contend that plaintiff (a) failed to
introduce evidence that the medical procedures performed at these
sites were reasonably necessary to treat her injuries, (b) failed
to lay a foundation that the medical charges were reasonable in
amount, and (c) failed to introduce expert testimony that these
specific medical bills pertained to treatment of injuries
proximately caused by defendants' negligence.
Medical bills are admissible in a negligence action, provided
there is evidence of a causal relationship between the negligent
act and the injury that is the subject of the medical bills. Smith
v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989). Where there is
no evidence that a defendant's negligence caused the illness or
injury for which plaintiff seeks compensation, our courts have
excluded the medical charges for treatment of that injury. See,
e.g., Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965)
(“not a scintilla of medical evidence” that plaintiff's injury
resulted from accident six months earlier); McNabb v. Town of
Bryson City, 82 N.C. App. 385, 346 S.E.2d 285 (1986) (plaintiff's
evidence fails to establish causal relationship between motorcycle
accident and later suicide attempt). However, if lay and expert
evidence demonstrates a causal relationship between the negligent
act and plaintiff's injuries, the medical charges for these
injuries are admissible. Smith v. Pass, 95 N.C. App. at 253, 382S.E.2d at 788. In Smith v. Pass, the plaintiff testified
concerning the back pain she experienced following a collision.
She also presented the testimony of a physician who had treated her
for back injuries, starting around a month after the accident. The
physician took a medical history, examined the plaintiff, and
ordered a bone scan and x-rays. This Court upheld the admission of
the medical bills, stating that “[m]edical bills are admissible
where lay and medical testimony of causation is provided.” Id.
(citation omitted). The Court found that the plaintiff's testimony
concerning pain she experienced at the time of the accident,
coupled with the physician's testimony, sufficiently linked the
collision and the resultant injuries to permit introduction of the
plaintiff's medical bills.
The issue of the admissibility of medical bills generally
arises when a defendant challenges the causal relationship between
the negligent act and a specific injury or medical condition. See,
e.g., Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965)
(Court finds insufficient evidence that plaintiff's ruptured disc
caused by accident); Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d
781 (defendant challenges causal connection between accident and
fracture of plaintiff's thoracic vertebrae; this Court finds
evidence sufficient to allow admission of medical bills); Lee v.
Regan, 47 N.C. App. 544, 267 S.E.2d 909, disc. review denied, 301
N.C. 92, 273 S.E.2d 299 (1980) (Court considers connection between
accident and aggravation of plaintiff's pre-existing syringomyelia
to determine whether certain medical bills were admissible). However, in the instant case defendants have not raised the issue
of a causal relationship between the accident and any specific
injury to plaintiff. Rather, defendants rely on a general
contention that insufficient evidence connected plaintiff's
treatment by certain health care providers to “her injuries.”
Therefore, the proper inquiry, and the one this Court will
consider, is whether plaintiff's evidence sufficiently established
a causal relationship between the accident and her injuries
generally, so as to support the admission of medical bills for
treatment of these injuries.
Plaintiff testified at trial that immediately after the
collision she experienced extreme pain in her neck, head, and
shoulder. Her left arm was numb, and her back was in severe pain.
The following morning the pain was even worse. Plaintiff went to
Presbyterian Hospital, where she was examined by Mecklenburg
Emergency Medicine physicians, and received X-rays, pain
medication, and a neck-support collar. The hospital staff
recommended follow-up with an orthopedic doctor; therefore,
plaintiff sought treatment from Dr. Sanders, a local orthopedic
physician. Sanders saw plaintiff a few times, and prescribed pain
medication and physical therapy. Several weeks later, plaintiff
was still experiencing pain and numbness, as well as migraine
headaches. She then consulted with Dr. Wheeler, a specialist in
pain medicine and neurology. Dr. Wheeler took over plaintiff's
treatment from that point onward, prescribing tests, medication,
and therapy over the following two years.
Dr. Wheeler testified that he first met with the plaintiff inearly March, 1995, approximately three months after th
e accident.
At that time, he took plaintiff's medical history and performed a
complete physical examination. He also reviewed the X-rays that
plaintiff had obtained at Presbyterian Hospital on the morning
following the accident. Dr. Wheeler's medical diagnosis was that
the plaintiff suffered from severe post traumatic cervical
segmental and soft tissue dysfunction, and migraine headaches, as
well as a nerve impingement, all of which could have been caused by
a collision like the one at issue. Dr. Wheeler ordered a cervical
MRI and a bone scan for diagnostic purposes, prescribed pain
medication, and directed her to continue the physical therapy
prescribed by Dr. Sanders. He treated her for these injuries for
the following two years. Dr. Wheeler also performed an impairment
rating examination which showed ten percent impairment overall. On
cross-examination, defendants informed Dr. Wheeler that the
emergency room physicians, and Dr. Sanders, had diagnosed plaintiff
with a strained cervical spine and a strained dorsal lumbar spine.
Wheeler explained that these physicians were using a different,
less specific, vocabulary for the same kind of injuries that he had
diagnosed. He noted that the terms “strain” and “sprain” were “the
usual vernacular of an emergency room physician;” that, unlike the
emergency room physicians and Dr. Sanders, he specialized in
treating problems with the spine; and that physicians in his field
were working towards adopting a “standard nomenclature” which would
exclude the terms strain and sprain from diagnoses of the neck and
back. Wheeler also testified to the purposes for which he had
prescribed tests such as a bone scan and MRI. In sum, plaintiff testified that immediately following the
collision she began to experience severe pain and suffering in her
neck, back, and shoulder area. Dr. Wheeler's testimony established
a causal relationship between the accident and the injuries. His
examination of X-rays taken the morning after the accident, and his
concurring with Dr. Sander's prescription for physical therapy
provide a sufficient basis to submit those bills; other challenged
medical bills were for treatment or tests prescribed by Dr. Wheeler
for these injuries. We conclude that the plaintiff's evidence
demonstrated a causal relationship between the accident and her
injuries.
[2]Defendant also argues that plaintiff's medical bills were
admitted without sufficient evidence that they were reasonable in
amount. However N.C.G.S. § 8-58.1 (1999) provides that:
Whenever an issue of hospital, medical,
dental, pharmaceutical, or funeral charges
arises in any civil proceeding, the injured
party or his guardian, administrator, or
executor is competent to give evidence
regarding the amount of such charges, provided
that records or copies of such charges
accompany such testimony. The testimony of
such a person establishes a rebuttable
presumption of the reasonableness of the
amount of the charges.
This Court has held previously that the statute creates a
rebuttable mandatory presumption of the reasonableness of the
amount of the charges. Jacobsen v. McMillan, 124 N.C. App. 128,
476 S.E.2d 368 (1996). That is, when a plaintiff introduces
medical bills in support of his testimony, the jury must find that
the amount is reasonable, unless the defendant rebuts thispresumption with other evidence. Id. at 134, 476 S.E.2d at 371-72.
If, however, the defendant does not rebut the medical expenses
presumption, it is conclusively established. Id. at 135, 476
S.E.2d at 372. In the instant case, plaintiff testified concerning
her injuries and the medical treatment she received, and also
introduced copies of these medical bills. Defendants presented no
evidence; nor did they rebut the reasonableness of the amount of
the medical charges on cross-examination. Therefore, the
reasonableness of the amount of these charges is conclusively
established.
For the reasons discussed above, we conclude that the
plaintiff presented a sufficient foundation for the admission of
her medical bills for treatment of injuries she contended were
proximately caused by the accident. Thus, we overrule the
assignment of error challenging the admission into evidence of
these medical bills.
[3]Defendants next argue that the introduction of plaintiff's
medical bills “without medical substantiation created an inference
in the jury's minds that such alleged injuries and charges were not
subject to challenge. . . .” This argument does not cite an
assignment of error. In addition, none of defendants' assignments
of error include any reference to “an inference in the jury's mind”
that allegedly was generated by the admission of evidence.
Therefore, this argument is not properly before this Court, and
will not be addressed.
[4]Finally, defendants contend that the trial court erredwhen it allowed plaintiff to reopen her case after she ha
d rested.
Defendants moved for directed verdict at the close of plaintiff's
evidence, on the grounds that plaintiff had not presented a prima
facie case of proximate cause and damages. After the trial court
denied defendants' motion for directed verdict, defendants moved to
exclude testimony about the amount of plaintiff's medical bills,
arguing that she had failed to submit them to the jury in support
of her testimony, as allowed under G.S. § 8-58.1. At plaintiff's
request, the trial court then allowed plaintiff to reopen her case
for the limited purpose of introducing into evidence the medical
bills about which she had testified. Defendants objected, stating
that they had made a “strategic” decision to defer their motion
until after plaintiff had rested, apparently hoping that it would
then be too late for plaintiff to remedy her oversight.
"The trial court has discretionary power to permit the
introduction of additional evidence after a party has rested."
State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982)
(citations omitted). "Whether the case should be reopened and
additional evidence admitted [is] discretionary with the presiding
judge." Smith Builders Supply v. Dixon, 246 N.C. 136, 140, 97
S.E.2d 767, 770 (1957) (citations omitted). Because it is
discretionary, the trial judge's decision to allow the introduction
of additional evidence after a party has rested will not be
overturned absent an abuse of that discretion. See Kerik v.
Davidson County, 145 N.C. App. 222, 551 S.E.2d 186 (2001) (motion
addressed to trial judge's discretion will not be disturbed unlesscourt abused its discretion); Harborgate Prop. Owners Ass'n, Inc.
v. Mountain Lake Shores Dev. Corp., 145 N.C. App. 290, 551 S.E.2d
186 (2001) (remedy that “rests in the sound discretion of the trial
court . . . is conclusive on appeal absent a showing of a palpable
abuse of discretion”). In the instant case, there is no evidence
that the trial court abused its discretion. In Nelson v. Chang, 78
N.C. App. 471, 337 S.E.2d 650 (1985), disc. review denied, 317 N.C.
335, 346 S.E.2d 501 (1986), defendant was allowed to reopen his
case after resting, over plaintiff's objection. This Court held as
follows:
[P]laintiff contends the court erred in
allowing defendant, over objection and after
denial of plaintiff's motion for directed
verdict, to reopen his case and attempt to
correct the omissions in damages pointed out
by counsel for plaintiff. We disagree. “The
purpose of the 'specific grounds' requirement
of Rule 50(a) is to allow the adverse party to
meet any defects with further proof and avoid
the entry of a judgment notwithstanding the
verdict at the close of the trial, on a ground
that could have been met with proof had it
been suggested earlier.” . . . The assignment
of error is overruled.
Id. at 476, 337 S.E.2d at 654 (quoting Byerly v. Byerly, 38 N.C.
App. 551, 248 S.E.2d 433 (1978)). We hold that the trial court did
not abuse its discretion in permitting plaintiff to introduce her
medical bills, and, accordingly, overrule this assignment of error.
For the reasons discussed above, we affirm the judgment
entered by the trial court.
Affirmed.
Judges WYNN and CAMPBELL concur.
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