Erdmann v. Thomas

Decision Date28 August 1989
Docket NumberNo. 880341,880341
Citation446 N.W.2d 245
PartiesDel K. ERDMANN, Plaintiff and Appellee, v. Delaine R. THOMAS, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Lee Hagen Law Office, Ltd., Fargo, for plaintiff and appellee; argued by Leland F. Hagen.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellant; argued by Carlton J. Hunke.

ERICKSTAD, Chief Justice.

Delaine R. Thomas appeals from a judgment entered on a jury verdict awarding Del K. Erdmann $80,631.54 for damages incurred as the result of an automobile accident, and from an order denying her post-trial motion. We affirm.

On February 7, 1987, Erdmann was a passenger in a vehicle which, while stopped at a red light, was struck from behind by a vehicle driven by Thomas. Immediately after the accident, Erdmann was taken by ambulance to the emergency room of a Fargo hospital, was examined by a doctor, and was released. During the next several months, Erdmann sought treatment for low back and leg pain from several physicians and other health care specialists.

Erdmann subsequently brought this action against Thomas seeking damages for a ruptured disc allegedly caused by the accident. Thomas admitted liability, but denied that Erdmann sustained a "serious injury" caused by the accident, a threshold requirement for seeking noneconomic damages under Secs. 26.1-41-01(21) and 26.1-41-08(1)(a), N.D.C.C., of the North Dakota Auto Accident Reparations Act (commonly known as the No-Fault Act). The jury returned a special verdict, finding that Erdmann sustained a "serious injury" as a proximate result of the accident, and awarded him $85,000 in damages. After subtracting the no-fault benefits paid to Erdmann, the trial court entered judgment in the amount of $80,631.54. The court also denied Thomas' post-trial motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Thomas appealed from the judgment and the order denying her post-trial motion.

Under Sec. 26.1-41-08(1)(a), N.D.C.C., 1 of the No-Fault Act, Erdmann was not entitled to recover for noneconomic loss unless his injury qualified as a "serious injury." A "serious injury" is defined in pertinent part as "an accidental bodily injury which results in death, dismemberment, serious and permanent disfigurement or disability beyond sixty days, or medical expenses in excess of two thousand five hundred dollars." Sec. 26.1-41-01(21), N.D.C.C. "Medical expenses" are defined in pertinent part as "reasonable charges incurred for necessary medical, surgical, x-ray, dental, prosthetic, ambulance, hospital, or professional nursing services...." Section 26.1-41-01(9), N.D.C.C. The plaintiff has the burden of alleging and establishing at trial that the no-fault threshold requirement has been met. Calavera v. Vix, 356 N.W.2d 901, 902 (N.D.1984).

Erdmann sought to meet the threshold requirement by offering medical bills totaling $3,642.57 he incurred after the February 1987 accident. 2 Thomas' major assertion on appeal is that the trial court committed reversible error by admitting the medical bills into evidence without proper foundation. Thomas contends that foundation was lacking because no expert medical testimony was offered to show that the bills were necessary for medical treatment required as a result of the accident.

Foundation testimony is that testimony which identifies the evidence and connects it with the issue in question. Taylor v. State, 642 P.2d 1294, 1295 (Wyo.1982). It is axiomatic that a foundation must be laid establishing the competency, materiality, and relevance of all evidence. Cansler v. Harrington, 231 Kan. 66, 643 P.2d 110, 113 (1982). See also Rule 104, N.D.R.Evid.; R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386-387 (N.D.1986). Whether "an exhibit should have been excluded on the basis that it lacked adequate foundation is primarily within the sound discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing that it affected the substantial rights of the parties." Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer, 338 N.W.2d 64, 66 (N.D.1983).

Although Thomas relies on numerous cases from other jurisdictions for the proposition that medical bills cannot be admitted in evidence unless medical testimony establishes that the bills were necessitated by the accident in question, that rule has not been adopted by this court. In Munro v. Privratsky, 209 N.W.2d 745, 753 (N.D.1973), an action for personal injuries and property damage resulting from a car accident this court expressly rejected the argument that foundation was lacking for admission of a plaintiff's pharmacy bill for medication absent testimony from the plaintiff's doctor. We concluded that the plaintiff's testimony "that the pharmacy bill was for medicine received from the pharmacy which was prescribed by his doctor for the injuries he received as a result of the collision" was sufficient foundation evidence. Munro v. Privratsky, supra.

Likewise, in Klein v. Harper, 186 N.W.2d 426, 431-432 (N.D.1971), another negligence action for injuries sustained as the result of a car accident, this court held that there was sufficient foundation to admit into evidence the plaintiff's medical bills without supporting medical testimony. The defendant contended that foundation was lacking for the admission of doctor bills, two hospital bills, and 14 receipts for the purchase of drugs because the plaintiff did not introduce "evidence to show that the treatment indicated was necessitated by the collision, ... and that there is no showing of what treatment was given or for what condition." The plaintiff had identified these items, testified as to the injury he suffered to his low back and stomach resulting from the collision, and testified as to his numerous visits with doctors, chiropractors, and specialists for treatment of the injuries. We concluded that the plaintiff's testimony "clearly connects the requirement for the medical services with the alleged tortious conduct of [the defendant] as a proximate cause. Thus there is evidence that the medical services were rendered because of the injury of which he complains and that the services were necessary; ..." Klein v. Harper, supra.

Munro v. Privratsky and Klein v. Harper clearly show that, in this jurisdiction, expert medical testimony is not required to lay the foundation for the admission of medical bills or expenses into evidence. Thomas asserts, however, that the Legislature's enactment of the No-Fault Act has altered this rule, at least with respect to lawsuits subject to the provisions of the Act, because Sec. 26.1-41-01(9) specifically requires proof that the medical expenses were "necessary" as a result of the accident. She also relies on this court's decision in Calavera v. Vix, supra, 356 N.W.2d at 902, in which we held that, under the $1,000 medical expense threshold requirement of former Chapter 26-41, N.D.C.C.,

"a tort action filed within the six-year statute of limitations is not barred by the $1,000 medical expense threshold under Chapter 26-41, N.D.C.C., if the plaintiff can, in good faith, allege and establish at trial that his total medical expenses will exceed $1,000, including those medical expenses incurred within the limitations period and those which, with reasonable medical certainty, will be incurred in the future. However, mere speculation regarding medical services required will not be sufficient." [Emphasis added.]

Thomas asserts that our statement in Calavera v. Vix leads to the conclusion that a plaintiff must prove not only that future medical expenses, but also that past medical expenses, were necessarily incurred as a result of the accident "to a reasonable degree of medical certainty." We disagree.

We have consistently held that, in order for a plaintiff to recover for future medical services, there must be "substantial evidence to establish with reasonable medical certainty that such future medical services are necessary." South v. National R.R. Passenger Corp., 290 N.W.2d 819, 842 (N.D.1980). This comports with the general rule that all future damages must be proved with "reasonable certainty." Olmstead v. Miller, 383 N.W.2d 817, 822 (N.D.1986). Absent from a determination of whether past, in contrast with future, medical expenses were necessarily incurred as the result of an accident is the speculative nature of deciding whether the plaintiff will ever incur future medical expenses, regardless of their causal origin. We decline to impose the "reasonable degree of medical certainty" standard to medical expenses that have already been incurred.

We are not persuaded that the Legislature, by its use of the term "necessary" in the section defining "medical expenses," intended that expert medical testimony be required to establish that medical expenses were necessitated by an accident. The No-Fault Act does not specify any method for determining whether an injured party has attained the threshold requirement so that the party may sue for noneconomic loss. See T. Smith, "North Dakota Auto Accident Reparations Act"--North Dakota's No-Fault Insurance Law, 52 N.D.L.Rev. 147, 157 (1975). We will not assume that the Legislature, in enacting the no-fault statute, intended to apply a rule other than that set forth in Munro v. Privratsky and Klein v. Harper when it has remained silent on the subject.

In this case, Erdmann testified that on the evening of the accident he was examined by Dr. Van Valkenburg at the Dakota Hospital emergency room. He further testified that because of the pain in his lower back and leg, he sought treatment on February 9 from Dr. Mahoney, a surgeon at Dakota Clinic who prescribed medications and referred him to Dr. Bernhoft, an orthopedic surgeon. Erdmann testified about the treatment Dr. Bernhoft ordered, including therapy at PT-TO Associates, a CT scan, a TENS Unit, and cortisone...

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