If you have a personal injury lawsuit, there’s a good chance you will include the medical bills you sustained due to the injury. Oklahoma law is somewhat confusing on what is “admissible” to show the medical bills.
The statute is 12 O.S. §3009.1 details (summarized):
- If medical bills have been paid, the actual amounts paid are admissible, not the amounts originally billed. Statements from providers accepting the paid amount as full payment can also be submitted.
- If no payment has been made, Medicare reimbursement rates in effect at the time of injury can be admitted as evidence instead of billed amounts if the provider verifies they would accept that as full payment.
- If no payment is made and no rate verification from the provider is given, the original billed amounts can be admitted into evidence.
- In cases where a provider has filed a lien exceeding the paid or Medicare rate amounts, the amount up to the lien value is admissible.
Before the statute went into effect, Oklahoma followed the “collateral source” rule. This meant that the defendant (mainly the liability insurance companies) would not get the benefit if the plaintiff’s medical bills were paid by someone else (the collateral source), such as the plaintiff’s health insurance company.
Now, the amount of damages is discounted to show what was actually paid by the plaintiff’s health insurance company. This creates different case values on the exact same cases when only the health coverage payments differ. For example:
- The plaintiff has $25k in medical bills, but their health insurance, BlueCross BlueShield or Cigna, pays $10k on the bills. The jury won’t hear the billed amount of $25k, but will see the $10k amount as the medical bills.
- The plaintiff has the same $25k in medical bills, but they have SoonerCare, and SoonerCare paid $5k for the treatment. The evidence on the case for the jury will be $5k in medical bills.
- Plaintiff has the same $25k in medical bills but does not have health insurance. The evidence on this case will be $25k in medical bills.
With the updated law, the defendant’s insurance company is getting the benefit of the Plaintiffs who have their health insurance pay on the claim. Note that the health insurance companies will generally still need to be paid back from any settlement through its”right of subrogation.”
There have been several challenges to the law, but it’s still the law in Oklahoma:
Gowens v. Barstow (2015)
- The Supreme Court of Oklahoma noted Section 3009.1 allows only amounts actually paid for medical treatment to be admitted but did not decide whether Medicaid write-offs qualify as a collateral source.
Lee v. Bueno (2016)
- Supreme Court of Oklahoma determined that Section 3009.1 places limits on the types of evidence admissible to prove medical costs, but does not deny access to courts or deprive litigants of due process rights.
- The court found Section 3009.1 does not violate the separation of powers by legislating rules of evidence and does not abolish the collateral source rule. However, it controls the rule to the extent they conflict.
Christian v. Lee (2016)
The Oklahoma Supreme Court applied its decision in Lee v. Bueno to reverse the trial court’s ruling that 12 O.S. §3009.1 was unconstitutional. The Lee v. Bueno decision had previously upheld the constitutionality of Section 3009.1, finding that it:
- Is not an unconstitutional special law in violation of the Oklahoma Constitution.
- Does not arbitrarily burden the right to trial by jury.
- Does not violate plaintiffs’ rights to access the courts.
- Does not violate due process rights.
Beason v. I.E. Miller Services (2018)
- Supreme Court of Oklahoma mentioned Section 3009.1 in a footnote, stating it did not apply to the case, which involved purely noneconomic damages.
Hill v. American Medical Response (2018)
- Supreme Court of Oklahoma determined the statute does not violate due process rights or unlawfully delegate legislative authority by requiring the use of the AMA Guides to evaluate permanent impairment.
Can a Plaintiff’s Attorney Ethicallly Contact the Client’s Medical Providers to Prepare a Medical Lien?
The Oklahoma Bar Association Ethics Counsel issued Opinion No. 329 to address this issue. In summary:
- Oklahoma statute 12 O.S. § 3009.1 limits evidence of medical expenses in personal injury cases to amounts actually paid, not amounts billed.
- However, if a provider files a lien for more than the amount paid, amounts up to the lien amount can be submitted.
- The question is whether the plaintiff’s attorney can ethically contact the client’s medical providers and offer to prepare liens on their behalf.
Key Ethical Issues
- Conflicts of Interest – Rule 1.7
- Concurrent representation of both the plaintiff client and medical providers poses a conflict if interest.
- Allows representation if:
- Lawyer reasonably believes can provide competent representation
- Not legally prohibited
- Doesn’t involve directly adverse claims
- Informed written consent was obtained from both clients
- Contacting Prospective Clients – Rules 7.2 and 7.3
- Can’t directly solicit if significantly motivated by pecuniary gain
- But solicitation letters are allowed as advertising
- Contact must not involve coercion, duress, harassment
- Representation is ethical, with appropriate disclosures and consent from both parties.
- Lawyers must inform both clients of risks posed by conflicts of interest.
- Must get informed written consent from both the plaintiff and providers.
- Can send solicitation letters as advertising if comply with rules.
- Should not charge fees to providers for preparing liens, except filing fees.