Dennis v. Ryan – Reasonableness and Necessity / Foundation

When I started to read Dennis v. Ryan, a memorandum decision from Division One today, I started to get excited.

It seemed as though Jack Levine had finally gotten the break-through he’s been working on for so many years: getting the courts to see that, medical bills and records are all that’s needed to create a triable fact as to whether care is reasonable, necessary and even casually related. After all, the Court of Appeals reversed the trial court’s exclusion of certain medical records and bills in a trial where there was “no medical testimony” presented “to establish that . . . the medical care was reasonable and necessary.”

But upon closer examination, I think the Court got to the right result in this case for quite the wrong reason or, at a minimum, created substantially more confusion on the topic.

The essential fact seized upon by the Court of Appeals in this case was that there was a stipulation to enter certain medical records and bills into evidence, although there was a reservation to argue the reasonableness of the charges and necessity of subject care. Yet, in short, despite the stipulation to enter those documents into evidence, the trial court later “un-admitted” them based upon the defendant’s assertion that plaintiff had not presented “testimony” regarding reasonableness or necessity. The Court of Appeals viewed this un-admission as a violation of the stipulation and, therefore, reversed. They did so, however, all while buying into a bizarre concept that the trial court was otherwise right: that is, additional testimonial evidence is generally necessary on the issues or reasonableness and necessity to somehow get those documents admitted.

As many of you know, the parties’ forgoing stipulation is common. Parties routinely agree to forgo calling custodians of records to set forth exceptions to the hearsay rule a/k/a business records exception and other hurdles to laying the foundation for admission of documents which are, quite obviously, authentic records. Likewise, without addressing the issue of burden, parties routinely agree to allow for argument as to “reasonableness” and “necessity” to the extent such issues are raised by the Personal Injury RAJI’s (Damages 1). Where the trial court and this Court of Appeals gets screwy is that they morph this factual issue into an evidentiary issue.

Over the years, many people have taken the position that, notwithstanding the RAJIs, there is no requirement that puts the “burden” on plaintiffs to “prove” medical expenses are “reasonable” or that procedures were “necessary.” Rather, people have argued, it is an affirmative defense and the burden is on the defense. Jack Levine has also long argued that, regardless of who has such a burden, medical bills and records themselves are at least evidence the charges are reasonable and that the care was necessary.

Still, these topics remain subject to considerable dispute, so it was not entirely surprising to read the trial court’s view that “I believe that [it] is the law in Arizona, that the Plaintiff must establish the reasonableness and necessity of all medical treatment.” While we may disagree with this assertion, we are used to being saddled with the burden of proof and/or dealing with trial courts who embrace this contested view.

The Court of Appeals, though, took it a step further. They claimed that, “[i]n addition to authenticity, the traditional foundation required for the admission of medical bills is a showing of reasonableness and necessity,” citing, with a “”see” qualifier, their opinion in Larsen v. Decker, 196 Ariz. 239, 995 P.2d 281 (App. 2000), which admittedly tends to support this nonsensical thinking. The problem, however, is this is all an illusory, judge-made addition to the Rules of Evidence which clearly permit the admission of relevant documents which are subject to hearsay exceptions.

In Larson the Court of Appeals wrongly sustained a trial judge’s evaluation of medical care based upon his review of the records. For example, Larson notes that the trial court excluded the evidence “because [Dr.] Immerman re-took x-rays that had been taken the prior week during Larsen’s hospital stay and no testimony showed that either they or the chiropractic treatments were necessary because of the auto accident.” Such inquiry clearly goes well-beyond what the trial judge is supposed to do – i.e., determine whether the evidence is “sufficiently reliable.” It is certainly not for the trial judge to decide whether the evidence – i.e., records and bills – itself sufficiently proves (assuming the burden is on the plaintiff) reasonableness or necessity.

That is for the jury. That is why it is in a RAJI.

This case furthers the Court of Appeals incorrect views that (a) reasonableness and necessity is something plaintiffs must prove and (b) evidence of reasonableness and necessity are necessary to admit medical records and bills. Indeed, based on this latter suggestion, one must have testimony about reasonableness and necessity to prove reasonableness and necessity since the documents themselves, as Jack points out, are evidence of the reasonableness and necessity of care.