Under 12 O.S. Section 3009.1, only the amount actually paid on a medical bill, not the amount billed, is admissible at trial. An exception applies if a provider files a valid lien: unpaid charges up to the lien amount also come in. Absent payment or a Medicare-rate statement by final pretrial, the full billed amount is admissible instead.
This decision tree walks through every step for working out which medical bill amount goes in front of your jury: who paid, whether a provider filed a lien, and whether the right statements were submitted before final pretrial. SB 2166 would rewrite this framework, effective November 1, 2026, if it passes; the comparison table below tracks the proposed changes.
Effective date: Section 3009.1 applies to civil actions filed on or after November 1, 2015.
The Decision Tree
Step 1: Were Medical Bills Paid?
| Situation | Where to Go |
|---|---|
| Bills were paid (by health insurance, Medicare, Medicaid, med pay, or out-of-pocket) | Step 2: Paid Amount Rule |
| No payment was made on any bill | Step 4: No Payment Track |
| Some bills are paid, some are not paid | Apply Steps 2 and 3 to paid bills; apply Steps 4 through 6 to unpaid bills separately, provider by provider |
Step 2: Apply the Paid Amount Rule (Section 3009.1(B))
The amount actually paid is admissible. The amount billed is not. This applies regardless of who paid: health insurer, Medicare, Medicaid, med pay, or your client directly.
If the provider submits a signed statement (acknowledged by the provider or an authorized representative) or sworn testimony that the provider will accept the paid amount as full payment of the obligation, that statement is also admitted into evidence as an exhibit. It need not be shown to the jury, but it is part of the record.
Write-off question: Health insurance contract adjustments reduce what the insurer actually paid the provider. Some Oklahoma courts have heard the argument that a write-off should count as “paid” because the insured paid premiums for it, but no published appellate decision confirms that as controlling. A Northern District of Oklahoma order has recognized insurance and Medicare payments as collateral sources even when written off, which supports treating write-offs as paid on the insured’s behalf. Treat this as an open argument, not settled law, and brief it whenever the gap between the paid and written-off amounts is significant.
Proceed to Step 3.
Step 3: Check the Lien Exception
This step is where you preserve or lose most of your client’s medical damages.
If a medical provider has filed a lien for an amount exceeding what was paid, the bills in excess of the paid amount, up to the amount of the lien, are also admissible at trial. This is the lien exception under Section 3009.1(B). The lien must be a properly filed lien under 42 O.S. Section 43 or 42 O.S. Section 46. A provider who merely asserts a balance due without filing on the mechanic’s and materialman’s lien docket does not trigger the exception. When more than one lien attaches to the same recovery, for example a hospital lien alongside a Medicaid lien, statute sets the payment order; see how Oklahoma ranks competing medical liens against a single settlement for that ordering.
| Scenario | What Is Admissible |
|---|---|
| Bills: $200,000. Paid: $80,000. No lien filed. | $80,000 (paid amount only). |
| Bills: $200,000. Paid: $80,000. Provider filed a valid lien for $120,000. | $80,000 + $120,000 = $200,000. |
| Bills: $200,000. Paid: $80,000. Provider filed a valid lien for $60,000. | $80,000 + $60,000 = $140,000. (Lien caps the exception at the lien amount, not the full billed amount.) |
Before you attack the lien on technical grounds: Eliminating a lien also eliminates the exception that lets the excess bills in. When the gap between billed and paid is large, negotiating the lien down while keeping it in place as a trial damages tool often beats killing it outright. See the requirements for perfecting or attacking a Section 46 medical lien.
Medicare and Medicaid: If Medicare or Medicaid paid, that paid rate is the admissible amount under Subsection B, subject to the lien exception if a lien is also filed.
Step 4: No Payment Made; Has the Provider Issued a Signed Medicare Rate Statement?
| Situation | Result |
|---|---|
| Provider issued a signed statement accepting Medicare reimbursement rates as full payment | Medicare rates as of the injury date are admissible, not the billed amount. If the provider also filed a lien exceeding the Medicare rate, the excess (up to the lien amount) is also admissible under Section 3009.1(C). Go to Step 3 logic for the lien exception calculation. |
| No Medicare rate statement and no payment | Go to Step 5. |
Defense preference: Insurers and defense counsel often push to lock in the Medicare rate before trial, since it runs substantially lower than the billed amount. Do not produce that statement preemptively; the Step 5 default (billed amount) is usually better for your client.
Step 5: No Payment and No Statement; Apply the Billed Amount Fallback (Section 3009.1(D))
If no bills were paid and no signed statement was provided to the opposing party and listed as an exhibit by the final pretrial hearing, the billed amount is admissible at trial, subject to any lien limitations.
This is the best available outcome for your client when no payment was made, and the Medicare rate statement was not provided. The billed amount comes in. Hold that ground at the pretrial stage.
Step 6: Motion in Limine
Section 3009.1 issues belong in a motion in limine, resolved before trial, not argued mid-testimony at the provider’s deposition or during direct examination. Courts have consistently followed Section 3009.1 when properly briefed.
Prepare a provider-by-provider schedule for your motion in limine showing:
- Provider name
- Total billed amount
- Amount paid and payor
- Whether a lien was filed (and whether it is properly perfected)
- Lien amount (if filed)
- Admissible amount under the decision tree above
Attach the schedule as an exhibit; a well-organized schedule prevents the defense from relitigating each provider individually and gives the court a clean record for any ruling.
Defense discovery tactics under Section 3226: Defense counsel routinely serve discovery under 12 O.S. Section 3226, demanding that your client separately state both the “amount incurred” and the “amount paid” for each provider. Producing both figures accurately complies with discovery obligations but also hands the defense the paid amount number it needs to argue for the lower admissible figure. Have your Section 3009.1 motion in limine ready before or simultaneously with your final pretrial disclosures; see sequencing initial disclosures ahead of the pretrial deadline.
Section 61.2: Struck Down and Repealed
23 O.S. Section 61.2 defined economic damages to include “all costs incurred for medical care or treatment,” which appeared to conflict with Section 3009.1’s “amount paid” rule. That conflict is now moot because Section 61.2 is no longer law.
The constitutional history is settled. Section 61.2 was enacted in 2009 as part of the Comprehensive Lawsuit Reform Act, struck down as logrolling in Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.3d 789. Section 61.2 itself was then struck down in Beason v. I.E. Miller Services, Inc., 2019 OK 28, as a special law violating Article 5, Section 46 of the Oklahoma Constitution. The legislature formally repealed it through SB 453 (Laws 2025, c. 311, Section 11, eff. September 1, 2025).
The replacement is 23 O.S. Section 61.3 (also available via Westlaw), which imposes a $500,000 cap on noneconomic damages (effective September 2025). Section 61.3(C)(2) exempts permanent and severe physical injury from that cap entirely: loss of use of a limb, loss of or substantial impairment to a major body organ or system, or an injury leaving the plaintiff unable to independently care for himself. Section 61.3 has not been challenged or ruled on by any Oklahoma appellate court as of April 2026; whether the new cap survives constitutional challenge is the open question.
For trial practice, Section 3009.1 remains the operative evidence rule: courts limit evidence to the paid amount and lien exception amounts. Section 61.2 is no longer law, and Section 61.3 addresses noneconomic damages caps, not the paid-versus-incurred admissibility question. Do not rely on either to end-run Section 3009.1.
SB 2166 (2026 Session): What Changes If It Passes
SB 2166, authored by Senator Daniels with Representative Tedford as House principal author, passed the Senate Judiciary Committee on February 24, 2026 as a Committee Substitute (CS). The CS made three changes from the Introduced version: it tightened the damages standard to “actually necessary” (a higher bar than “necessary”), it cross-referenced the existing subsection B framework for satisfied bills, and it added a catch-all in F(2)(e) allowing evidence from subsections B, C, and D for unpaid charges. The analysis below reflects the CS provisions. If enacted, SB 2166 takes effect November 1, 2026; check the bill’s status page before relying on it. A workers’ compensation carrier asserting subrogation against the same recovery raises a related question; see the workers’ compensation subrogation decision path for that analysis.
Current Law vs. SB 2166: Side-by-Side
| Issue | Current Law (Section 3009.1) | SB 2166 Proposed Change (Effective Nov. 1, 2026, if enacted) |
|---|---|---|
| Damages cap on medical | No express cap; the paid amount rule governs admissibility of evidence, but does not cap the damages award itself | New Section E: damages for medical services may not exceed amounts actually paid, plus amounts currently due and owing, plus necessary future treatment |
| Past satisfied bills | Amount paid is admissible; lien exception if lien filed | New Section F(1): same rule, limited to the amount actually paid, regardless of payment source |
| Unpaid bills: insured client | Lien exception if lien filed; Medicare rate if provider submits statement; billed amount if no statement by final pretrial | New Section F(2)(a): health plan obligation amount plus the patient’s share under the plan |
| Unpaid bills: insured client who was treated on a lien basis instead of submitting to the health plan | Lien exception applies if lien is filed; billed amount falls back if no statement | New Section F(2)(b): what the health plan would have paid plus the patient’s share, as if the client had submitted the claim to the plan |
| LOP transferred to the factoring company | No specific rule; lien exception may apply to the unpaid balance | New Section F(2)(c): the amount the factoring company actually paid for the receivable (the discounted purchase price) |
| Future medical damages | Not directly addressed in Section 3009.1; the reasonable value standard governs | New Section F(3): health plan rates if client is covered or eligible; otherwise, reasonable future billed amounts |
| Letter of protection disclosure | Not addressed in Section 3009.1 | New Section G: mandatory disclosure of LOP copy, itemized charges, factoring company identity and purchase price, health plan status, and referral source |
| Attorney-provider referral relationships | Not addressed in Section 3009.1 | New Section G(5): if the attorney referred the client for LOP treatment, the referral is not privileged; the financial relationship between the law firm and the provider (number of referrals, frequency, financial benefit) is admissible to impeach provider’s testimony on bias |
The Four Strategic Threats in SB 2166
1. The damages cap (Section E) is the headline change. Current law’s Section 3009.1 governs admissibility only; it does not cap what the jury can award. SB 2166 converts the “paid not incurred” rule into a hard damages cap, limiting medical-services recovery to amounts paid, amounts currently owed, and necessary future treatment. If enacted, the billed-to-paid gap disappears not just as inadmissible evidence but as recoverable damages entirely.
2. Health plan rate substitution (Section F(2)(b)) eliminates the letter of protection strategy for insured clients. If your client had coverage but was treated on an LOP instead of submitting to the plan, SB 2166 caps admissible damages at what the health plan would have paid, not what the LOP provider billed, a direct legislative response to the LOP practice model.
3. Factoring company purchase price (Section F(2)(c)) targets the sale of LOP receivables. When a provider sells its receivable to a factoring company at a discount, that discounted purchase price becomes the admissible measure for that portion of past medical damages: a $100,000 bill sold for $35,000 creates a $35,000 ceiling.
4. Attorney referral disclosure (Section G(5)) is the most operationally significant provision for daily practice. If you referred a client to a provider for LOP treatment, SB 2166 requires disclosing that referral. The financial relationship between your firm and the provider (referral count, frequency, financial benefit) becomes admissible to impeach the provider’s trial testimony on bias, and the bill strips any privilege over that information, even if the referral arrangement was otherwise confidential.
Status as of April 2026
Senate Judiciary Committee passage, 7-2, February 24, 2026. Senate General Order February 26, 2026. House principal author added March 16, 2026. No House committee hearing or floor vote recorded as of April 2, 2026. The bill is active but has not cleared the House. If the 2026 session ends without House action, the bill dies and would need to be reintroduced in 2027. This status is several months old; check the bill’s status page above before relying on it.
