State v. Campbell

• Decision Date: 06 February 2019
• Docket Number: A162357 (Control),A163187
• Citation: 438 P.3d 448,296 Or.App. 22
• Parties: STATE of Oregon, Plaintiff-Respondent, Cross-Appellant, v. Gary Lee CAMPBELL, Defendant-Appellant, Cross-Respondent.
• Court: Oregon Court of Appeals

296 Or.App. 22

438 P.3d 448

STATE of Oregon, Plaintiff-Respondent, Cross-Appellant,

v.Gary Lee CAMPBELL, Defendant-Appellant, Cross-Respondent.

A162357 (Control)

A163187

Court of Appeals of Oregon.

Argued and submitted May 8, 2018.

February 6, 2019

Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant-cross-respondent. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, Salem, argued the cause for respondent-cross-appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

DeVORE, J.

This decision addresses the sufficiency of evidence offered to prove that amounts sought as medical expenses were reasonable for purposes of restitution in a criminal proceeding. Defendant appeals a judgment of conviction on a variety of charges. He challenges the trial court’s jury instructions and its failure to merge two of the verdicts into a single conviction. The state cross-appeals a supplemental judgment, assigning error to the trial court’s denial of its request for restitution to CareOregon, a state-funded health insurance company, for the amount paid to cover the victim’s medical expenses. The state argues that the record contained sufficient evidence to show that the medical expenses were "reasonable" as ORS 137.103(2) and ORS 31.710 require. As to defendant’s appeal, we affirm without written discussion. As to the state’s cross-appeal, we reverse and remand the supplemental judgment.

The relevant facts are not in dispute. The case arises from a series of altercations that led to defendant stabbing the victim with a knife and the victim’s car crashing into a tree. At the scene, the victim was unresponsive and barely breathing. He was helicoptered to the trauma center at Oregon Health and Science University Hospital (OHSU) where he underwent emergency surgery and remained for two weeks.

Defendant was charged with several offenses: attempted murder, ORS 161.405 and ORS 163.115 ; first-degree assault, ORS 163.185 ; two counts of unlawful use of a weapon, ORS 166.220 ; menacing, ORS 163.190 ; and menacing constituting domestic violence, ORS 163.190. The jury returned guilty verdicts for all of the charged offenses except attempted murder.

At a subsequent hearing, the state requested $ 46,403.04 in restitution to recover the amount that CareOregon paid for the victim’s medical bills.¹ To substantiate its request, the state submitted in evidence copies of health insurance claim forms that had been filed with CareOregon for the victim’s treatment. It also called CareOregon’s subrogation coordinator as a witness. She had generated a ledger, which was admitted into evidence, detailing the amounts that various treatment providers charged and the reduced amounts that CareOregon actually paid for the victim’s medical expenses arising from the incident.² The subrogation coordinator testified that CareOregon pays for medical expenses at state Medicaid rates, which are "much lower rates than * * * standard commercial insurance." She testified that, although the victim’s medical providers charged $ 262,006.83 for his treatment, CareOregon paid just $ 46,403.04. The subrogation coordinator also testified that no CareOregon staff specifically reviews the reasonableness of services provided, unless given cause to do so. Rather, claims typically "go through the system automatically."

At the close of the hearing, the state asked the trial court to order defendant to pay the $ 46,403.04 to CareOregon. Defendant urged the trial court to deny the request, arguing that the state failed to show that the medical expenses were reasonable as required under Oregon statute. Defendant relied on State v. McClelland , 278 Or. App. 138, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016), for the proposition that a medical bill alone cannot establish reasonableness. Defendant contended that "it’s not a question of whether [the bill] was paid or not," but rather, whether "the services were reasonable and at a reasonable cost."

The trial court reluctantly agreed with defendant, observing that, although it "look[ed] at the documents and remember[ed] what the facts were and the amounts seem[ed] very reasonable," McClelland was "right on point." The court perceived itself to be "uncomfortably in the same position" as the McClelland court, noting that no one testified to having assessed reasonableness. The trial court denied restitution for the medical bills based on its legal assessment that the record was insufficient to permit a finding of reasonableness.

The state cross-appeals the supplemental judgment, assigning error to the trial court’s denial of restitution to CareOregon. The state argues that a discounted medical bill paid by an insurer or "other informed market participant" is prima facie evidence of reasonableness unless otherwise rebutted. Defendant responds that our prior decision in McClelland forecloses that conclusion. He insists that a medical professional should testify to whether treatments and associated charges are reasonable and necessary.

As presented, the issue requires this court to determine whether the record contains evidence from which a factfinder could infer that the medical expenses were reasonable. We review orders of restitution for errors of law. McClelland , 278 Or. App. at 141, 372 P.3d 614 (citation omitted). It is a question of law whether a trial court must deny restitution because the state failed to provide sufficient evidence of reasonableness. See Lea v. Farmers Ins. Co. , 194 Or. App. 557, 559, 96 P.3d 359 (2004) ("To the extent that resolving this case requires us to decide whether a court has no option but to grant the motion [to strike] if plaintiff presents no evidence that his expenses were reasonable and necessary, the question is one of law.").

Oregon statute describes the process by which the state may seek to recover restitution from a criminal defendant. In relevant part, ORS 137.106(1)(a) provides:

"If the court finds from the evidence presented that a victim suffered economic damages, * * * the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court."

For the purpose of that provision, "economic damages" has "the meaning given that term in ORS 31.710 [.]" ORS 137.103(2).³ With that reference, the statute adopts the definition of economic damages employed in civil cases. That is, economic damages are the "objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services[.]" ORS 31.710(2)(a).⁴

Accordingly, our understanding of economic damages in civil cases informs our analysis of economic damages in criminal restitution proceedings. See State v. Ramos , 358 Or. 581, 588, 368 P.3d 446 (2016) ("[T]he legislature’s cross-reference to the definition * * * and [its] purpose in creating the restitution procedure as a substitute for a civil proceeding make civil law concepts relevant to our interpretation of ORS 137.106."); State v. Islam , 359 Or. 796, 800, 377 P.3d 533 (2016) ("[R]estitution under ORS 137.106 is informed by principles enunciated in civil cases concerning recoverable economic damages." (Citation omitted.)); McClelland , 278 Or. App. at 142, 372 P.3d 614 ( ORS 137.106(1)(a)"incorporates the civil statutory definition of economic damages set forth in ORS 31.710(2)(a)").⁵

Like a plaintiff in a civil case, "the state has to prove that the cost of such services is ‘reasonable’ " before restitution can be awarded for hospital or medical expenses. McClelland , 278 Or. App. at 143, 372 P.3d 614. "The amount that one pays for services generally is admissible and often may be an important factor in determining the reasonable value of those services." White v. Jubitz Corp. , 347 Or. 212, 243, 219 P.3d 566 (2009) (citation omitted). Recoverable damages are based "on the value of necessary services." White v. Jubitz Corp. , 219 Or. App. 62, 68, 182 P.3d 215 (2008), aff’d , 347 Or. 212, 219 P.3d 566 (2009) (emphasis in original).⁶ For that reason, evidence merely showing the existence of treatment bills is inadequate. McClelland , 278 Or. App. at 144, 372 P.3d 614 (submission of treatment bills, "without more, is insufficient proof for recovery of ‘reasonable’ hospital or medical services"); Valdin v. Holteen and Nordstrom , 199 Or. 134, 147-48, 260 P.2d 504 (1953) (to claim economic damages, it would be necessary to offer evidence that the charges were reasonable); Coblentz v. Jaloff , 115 Or. 656, 665-66, 239 P. 825 (1925) (plaintiff’s allegation of a certain amount for medical services, without evidence of payment or reasonableness, was insufficient to show that the charges were reasonable), overruled on other grounds by Simpson v. The Gray Line Co. , 226 Or. 71, 358 P.2d 516 (1961).

Although the amount of the expenses "may be an important factor in determining the reasonable value of those services[,]" White , 347 Or. at 243, 219 P.3d 566 (citation omitted), it is not enough, Lea , 194 Or. App. at 560, 96 P.3d 359. A trial court cannot rely on common sense to determine that the amounts are reasonable. McClelland , 278 Or. App. at 146, 372 P.3d 614. Rather, "[s]ome additional testimony or evidence is required[.]" Id. at 144, 372 P.3d 614. See also Ellington v. Garrow , 213 Or. App. 490, 496-97, 162 P.3d 328 (2007) (noting the "longstanding rule that a plaintiff seeking damages for personal injuries must establish the reasonableness of any medical expenses claimed as damages[,]" but holding that the plaintiff did so when a doctor testified to the reasonableness of...