Desua v. Yokim

• Decision Date: 05 March 2001
• Docket Number: No. 2429,2429
• Citation: 137 Md. App. 138,768 A.2d 56
• Parties: Diane DESUA v. Scott YOKIM.
• Court: Court of Special Appeals of Maryland

768 A.2d 56

137 Md. App. 138

Diane DESUA v. Scott YOKIM.

No. 2429, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 5, 2001.

Laura Tise Magnuson, Germantown, for appellant.

James A. Sullivan (James A. Sullivan, Jr. and Sullivan & Talbott on the brief), Rockville, for appellee.

Argued before MURPHY, C.J., and ADKINS, and ROBERT F. FISCHER, (Retired, Specially Assigned), JJ.

MURPHY, Chief Judge.

The parties to this appeal from the Circuit Court for Montgomery County were involved in an automobile accident that occurred on September 9, 1993 in Rockville, Maryland. As a result of the accident, Diane DeSua, appellant, ultimately filed a negligence action against Scott Yokim, appellee,¹ seeking "the amount of One Hundred Fifty Thousand Dollars ($150,000.00) in compensatory damages plus interest and costs." Appellee filed a pretrial motion "for partial summary judgment" on the ground that "the [appellant] has failed to designate any expert witness [and] pursuant to her Answers to Interrogatories, the [appellant] has represented that she does not intend to call any expert witnesses at trial." Appellant filed an opposition to that motion in which she stated:

To put this matter in perspective, this case involves a relatively simple, rear-end accident. It is of the sort that does not justify huge expenses, including multiple medical experts ... [Appellant] asserts that under [Vroom v. Arundel Gas Co., 262 Md. 657, 278 A.2d 563 (1971), and Simco Sales v. Schweigman, 237 Md. 180, 205 A.2d 245 (1964) ], she will be able to meet her burden both as to the cause of her illness as well as the reasonableness of the medical expenses, without expert testimony.

At the conclusion of a hearing on appellee's motion, the Honorable Martha G. Kavanaugh announced the following conclusions:

... [U]nder the case law I believe that you need an expert in a soft tissue injury to establish causation, and reasonableness, and fairness in the medical bills.

... I believe you do need an expert in the soft tissue injury to establish causation because there are many reasons why someone might have a neck injury besides a car accident.

... [F]irst you would have to show that the accident caused the injuries, and then from the injuries you go to the pain and suffering and lost wages.

Judge Kavanaugh entered summary judgment in favor of appellee, and appellant now presents the following questions for our review:

1. DID THE COURT COMMIT REVERSIBLE ERROR IN CONCLUDING AS A MATTER OF LAW THAT EXPERT TESTIMONY WAS NEEDED TO ESTABLISH THE REASONABLENESS AND NECESSITY OF MEDICAL EXPENSES IN SOFT TISSUE INJURY CASES?

2. DID THE COURT COMMIT REVERSIBLE ERROR IN CONCLUDING AS A MATTER OF LAW THAT EXPERT TESTIMONY WAS NEEDED TO ESTABLISH A CAUSAL CONNECTION BETWEEN DEFENDANT'S NEGLIGENCE AND PLAINTIFF'S INJURIES?

For the reasons that follow, we shall answer "no"? to question one and "not in this case" to question two. We shall, therefore, affirm the judgment of the circuit court.

Factual Background

The accident occurred after appellant had stopped her vehicle at a yield sign, and was waiting to turn right onto Interstate 370 from Fields Road. According to appellant, her vehicle was struck in the rear by the vehicle that appellee was driving, and she was "thrown forwards and then backwards and suffered immediate pain in her neck." Appellant contends that as a result of her injuries, she incurred medical costs,² endured pain and suffering, and missed a total of 186 hours from her job.³

Procedural History

The circuit court entered a Scheduling Order that required appellant to designate her expert witnesses by January 19, 1999.⁴ Appellant did not designate expert witnesses. On May 27, 1999, appellee filed a motion for partial summary judgment on grounds that appellant had not identified any witnesses who would offer expert testimony as to the fairness, reasonableness, and necessity of her medical bills. On July 8, 1999, the Honorable Ann S. Harrington denied the motion without prejudice, and ruled that appellee could seek such relief from the trial judge. On July 9, 1999, appellant filed a pre-trial statement in which she disclosed her intention to introduce her medical bills through billing managers employed by her health care providers.⁵

Trial was to commence before Judge Kavanaugh on October 25, 1999. On the morning of trial, by way of motion in limine, appellee again presented the arguments previously made in support of his motion for partial summary judgment. As stated above, Judge Kavanaugh concluded that appellant needed expert testimony to introduce her medical bills into evidence and to generate a jury question on the issue of causation. This appeal followed.

Discussion

I.

The following transpired during the summary judgment hearing:

[THE COURT:] ... this is a neck injury, a soft tissue injury?

[APPELLANT'S COUNSEL:] Yes.

[THE COURT:] How in the world are we supposed to know that it exists unless we have expert testimony about it?

* * *

[APPELLEE'S COUNSEL:] ... I don't think without an expert you can establish the predicate that you have to get to a jury on these issues.

We are persuaded that Judge Kavanaugh was "legally correct" in concluding that appellant needed to provide expert testimony to introduce her medical bills.⁶ "In order for the amount paid or incurred for medical care to be admissible as evidence of special damages, there ordinarily must be evidence that the amounts are fair and reasonable." See Shpigel v. White, 357 Md. 117, 128, 741 A.2d 1205 (1999). "Evidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered or justify recovery therefor." Id. (quoting Kujawa v. Baltimore Transit Co., 224 Md. 195, 208, 167 A.2d 96 (1961)).

In Thomas v. Owens, 28 Md.App. 442, 445, 346 A.2d 662 (1975), this Court held that a physician was qualified to testify as to the reasonableness of the charge by the Public Health Service Hospital.⁷ Id. In the case sub judice, appellant relies on Simco Sales v. Schweigman, 237 Md. 180, 205 A.2d 245 (1964) for the proposition that the billing manager is competent to satisfy the "other evidence" requirement. Schweigman did hold that the Director of Admissions and Accounts at the Baltimore City Hospitals was competent to establish "the fair and reasonable value of hospital and surgical services provided to the [appellee] by the Baltimore City Hospitals." Id. at 188-189, 205 A.2d 245. Appellant, however, was also required to prove that her medical treatments were "necessary." Metropolitan Auto Sales v. Koneski, 252 Md. 145, 154, 249 A.2d 141 (1969). While a billing manager is competent to establish that a particular bill is fair and reasonable by comparing what other hospitals charge for a particular procedure, a billing manager's familiarity with the customary charge for services afforded to a patient does not make such a witness competent to explain why the patient's physician chose a particular type of treatment. Thus, where the issue of necessity is raised, the plaintiff cannot introduce medical bills through a billing manager.⁸ Appellant's use of the billing manager to establish the necessity for her medical bills does not satisfy that essential foundational requirement.

II.

Appellant also contends that Judge Kavanaugh erred in concluding that, as a matter law, expert testimony was needed to establish a causal connection between appellee's negligence and appellant's injuries. The following transpired at the summary judgment hearing:

[APPELLANT'S COUNSEL:] ... This Court can find that because we will present that the injury occurred immediately, that prior to the accident she had no neck pain, she was free of injury; immediately at the time of the accident she started experiencing pain.

We are not proving it was ileitis or paralyzed finger, anything that would cause a doctor to come in and explain why these symptoms were occurring. It is a neck injury that many persons in their common experience can experience or have known others to experience by virtue of a rear-end car collision.

[THE COURT:] But you can have it from arthritis, you can have it from age—

[APPELLANT'S COUNSEL:] She will testify she does not have arthritis.

[THE COURT:] Well she—how does she know because arthritis starts when you are young and it becomes worse as you grow older; you might not have any symptoms for a while.

[APPELLANT'S COUNSEL:] That could be argued by Mr. Sullivan in closing. That fact that he didn't get his own expert is his decision. Nothing stopped him from getting an expert to contest what we are going to say happened, and how she felt afterwards; that is clearly within her ability.

The subjectiveness is something the jury is to decide at the time that they get this case, and that is why Judge Harrington denied it originally.

* * *

[THE COURT:] What about causation? How in the world would you establish causation?

[APPELLANT'S COUNSEL:] Causation is what we just argued under Wilhelm. We have the opportunity to prove: A) That the immediate—should have the opportunity to prove—that the injury was immediately. Also that it was within the common experience of the jurors to find that that sort of sprain can occur after an accident, and the subjectivity issue is one that goes to the jury as to whether they believe she has the pain or not; that is within their realm.

[THE COURT:] All right. Well, I have a different take on the Wilhelm, the Craig, the Vroom, and the Craft cases, and for that reason, I believe you do need an expert in the soft tissue injury to establish causation because there are many reasons why someone might have a neck injury besides a car.

In Wilhelm v. State Traffic Safety Comm., 230 Md. 91, 185 A.2d 715 (1962), the Court of Appeals stated that

[t]here are, unquestionably, many occasions where the causal connection between a defendant's negligence and a disability claimed by a plaintiff does not

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