AMI 2204 Measure of Damages—Medical Expense—Past and Future

This clause is to be inserted between the two paragraphs of AMI 2201 when the evidence justifies its use.

The elements of damages reflected in this instruction were recognized in Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).

Past medical expenses must be affirmatively proved to justify their inclusion in the instruction on damages. Hinkle v. Perry, 296 Ark. 114, 117, 752 S.W.2d 267, 268 (1988) (holding it was not error to refuse to give this instruction regarding past transportation costs when the only evidence was the number of trips and the approximate distance traveled, but not the actual cost). See also Auto Transport v. May, 224 Ark. 704, 712, 275 S.W.2d 767, 771 (1955) (reducing damage award for past medical expenses to only that amount for which there was testimony).

A plaintiff seeking to recover medical expenses must prove that those expenses were reasonable and necessary. Bell v. Stafford, 284 Ark. 196, 198, 680 S.W.2d 700, 702 (1984) (holding evidence of expenses incurred many months after accident improperly admitted because there was no testimony to establish a causal relationship to accident); Arthur v. Zearley, 337 Ark. 125, 142, 992 S.W.2d 67, 77 (1999) (ruling that trial court erred in giving instruction absent any evidence that medical expenses were reasonably certain to be incurred in future; plaintiff had incurred no medical expenses for three years preceding trial). For a discussion of that standard in the context of a dispute about the propriety of the treatment, see Ponder v. Cartmell, 301 Ark. 409, 784 S.W.2d 758 (1990). Medical testimony is not always necessary to prove reasonableness and necessity, which may be established in some cases by testimony of a non-expert witness such as the injured party. Kay v. Martin, 300 Ark. 193, 196, 777 S.W.2d 859, 861 (1989) (upholding submission of medical bills to jury upon plaintiff's testimony explaining each item).

Future medical expenses do not require the same specificity as past medical expenses and may be established by a showing of a degree of medical certainty of future medical expenses. West Union v. Vostatek, 302 Ark. 219, 222, 788 S.W.2d 952, 954 (1990) (upholding submission of instruction for future medical expenses based on medical testimony regarding injuries and that surgery might well be required in the future), quoting Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982), and citing this instruction. The court has upheld an award of future medical expenses based on a history of expenses that had accrued by the trial, the seriousness of the injury, and a degree of medical certainty as to the need for future medication. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 391–92, 784 S.W.2d 755, 755–58 (1990). For other cases applying these principles, see Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 233, 788 S.W.2d 729, 733 (1990) (upholding submission of issue of future medical expenses to jury based on evidence of seriousness of injury, need for continuing treatment, and possible benefit from experimental surgical procedure); Haney v. Noble, 250 Ark. 557, 559, 466 S.W.2d 467, 468–69 (1971) (upholding the giving of this instruction upon proof of past expenses, 10% permanent disability, and medical testimony concerning continuing need for treatment). See also Holmes v. Hollingsworth, 234 Ark. 347, 349–50, 352 S.W.2d 96, 97–98 (1961) (upholding the giving of a future medical expense instruction based on testimony of nature of injuries, past treatment, and need for future treatment; rejecting argument that husband's obligation to provide wife's necessaries of life precluded her recovery of medical expenses).

Before enactment of the medical-cost provision of the Civil Justice Reform Act, § 15(b), Act 649 of 2003, codified at Ark. Code Ann. § 16-55-212(b), a plaintiff seeking recovery for medical expenses could invoke the collateral source rule to exclude evidence that the plaintiff had actually paid less than the full amount of those expenses (e.g., because the provider had discounted the bill or some portion had been covered by another source). Montgomery Ward & Co., Inc. v. Anderson, 334 Ark. 561, 564–68, 976 S.W.2d 382, 383–85 (1998) (excluding under collateral source rule evidence of an agreement between the plaintiff and a hospital to discount the hospital bill by 50%). The medical-cost provision of Act 649 apparently sought to overrule Montgomery Ward by limiting evidence of damages for costs of necessary medical care, treatment, or services only to those costs actually paid by, or on behalf of, the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible. Ark. Acts 2003, No. 649 § 15(a), Ark. Code Ann. § 16-55-212(b). In Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 9–10, 308 S.W.3d 135, 141–42 (2009), however, the court held the medical-cost provision of the Civil Justice Reform Act unconstitutional as a violation of the separation of powers principle embodied in Article 4, § 2 and Amendment 80, § 3 of the Arkansas Constitution because it purported to prescribe a rule of evidence. Presumably, Johnson also applies to § 19(b) of the Act, Ark. Code Ann. § 16-114-208(a), the medical malpractice version of the medical-cost provision.