Rule Set Forth In Howell v. Hamilton Meats & Provisions, Inc. Applied During Post-Trial Motion.

As plaintiff, a disabled man, passed through the threshold of a door to exit a store, the automatic doors closed on him three or four times before he was able to pass through. When he made it through the doors, he fell to the ground because his leg became twisted. He was taken by ambulance to a hospital where he underwent surgery for a fractured hip. Several months later, he was readmitted to a hospital because of a bed sore diagnosed as a decubitus ulcer. For treatment of his fractured hip and decubitus ulcer, plaintiff’s medical providers billed $690,548.93 ($177,403.12 for the hip and $513,145.81 for the ulcer.) But the medical providers settled those bills with Medicare and Medi-Cal for $138,082.25.

A jury found the store’s negligence 95 % responsible and plaintiff’s contributory negligence 5% responsible. The jury awarded damages for past medical expenses of $256,109.50 ($179,443.72 for the hip, which was 100 % of the amount billed for the hip, but only $76,665.78 for the ulcer, which was just 15 percent of the amount billed for the ulcer.)  The jury also awarded $116,664.50 for future medical expenses, $30,000 for past noneconomic loss and $10,000 for future noneconomic loss.

The total jury verdict was $412,774.00. That total was reduced by five percent because of plaintiff’s comparative negligence, so judgment was entered for $392,135.30.

After the trial, the court reduced the award for past medical expenses to the amount actually paid, which was $138,082.25.  In plaintiff’s new trial motion, the court also found the jury had improperly reduced the award for the treatment of the decubitus ulcer to 15 %, but concluded the evidence supported a reduction to 50 %, based on plaintiff’s failure to mitigate his damages.

After all the adjustments were made, including the effect of plaintiff’s failure to recover more than defendants had offered in a pretrial offer under California Code of Civil Procedure section 998, the court entered an amended judgment for $207,057.31.

On appeal, plaintiff contended that pursuant to the holding in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, [257 P.3d 1130, 129 Cal.Rptr.3d 325], http://www.courts.ca.gov/opinions/archive/S179115.PDF  when the court applied the 50 % reduction for the costs of treating the decubitus ulcer, it should have made the reduction from the amounts billed rather than the amount that was actually paid pursuant to an agreement among the medical providers.  The appellate court concluded the trial court did not err.

Plaintiff also contended on appeal that under Howell, the Medicare lien amount should be added to the judgment. Specifically, plaintiff argued that if his award for past medical expenses is reduced to the actual amount paid by Medicare and Medicare is entitled to reimbursement from plaintiff for the actual amount it paid, he will receive nothing by way of damages. The Court of Appeal disagreed with plaintiff, stating: “Awarding him the actual amount paid allows him to pay off the Medicare lien and be financially whole (except to the extent he failed to mitigate his damages); awarding him the amount of the Medicare lien and the actual amount Medicare paid would provide him with an impermissible double recovery.” Luttrell v. Island Pacific Supermarkets, Inc. (Cal.App. First Dist., Div. 5; April 8, 2013) 215 Cal.App.4th 196.