5th Circuit rejects retail medical expense award in vessel negligence claim

by Matthew H. Ammerman on May 15th, 2017

In Texas, medical expenses are often proven up by affidavits signed a medical records clerk stating the amount charged was reasonable and necessary. Tex. Civ. Prac. & Rem. Code § 18.001. But amounts that are written off due, for example, to workers' compensation schedules are not recoverable or admissible. Tex. Civ. Prac. & Rem. Code § 41.0105; Haygood v. De Escabedo, 356 S.W.3d 390, 399 (Tex. 2011).

The 5th Circuit delved into this issue in 2012 in the Manderson case that involved the employer's general maritime law's duty of medical cure to a seaman. There, the 5th Circuit held that only the lower amounts accepted by the medical providers -- not retail charges -- could be awarded to the injured seaman. Manderson v. Chet Morrison Contrs., Inc., 666 F.3d 373, 382 (5th Cir. 2012)This is relevant to damages because the amount of medical costs paid is often a metric used by the injured worker to support compensatory damage awards for, for example, pain and suffering.

Here, Robert dePerrodil, 70, an oilfield consultant, sued third-party vessel owner Bozovic Marine, Ltd. for negligence in operating a vessel and failing to advise him to go back to his seat when seas got rough. DePerrodil fell and injured his back, and his immune employer, PEI, paid his medical expenses under the Longshore & Harbor Workers' Compensation Act. DePerrodil incurred charges for medical treatment of $186,080.30. But the medical providers accepted $57,385.50 in payment of those medical bills. In a bench trial, the judge found Bozovic liable and awarded the full amount of billed charges. Bozovic appealed, and the 5th Circuit held the collateral source rule applied, and Bozovic Marine was liable for medical expenses paid by PEI's LHWCA insurer. But it reversed the trial court's medical expense award because dePerrodil may not be awarded medical costs that were billed but not paid. The judgment was affirmed except for the award of medical expenses.

Therefore, the actually-paid-or-incurred limitation applies under general maritime law  -- not just in the cure context.

The 5th Circuit also affirmed the trial court's reliance on a higher-than-average work life expectancy argued for by dePerrodil because it was supported by evidence. The appellate panel distinguished other 5th Circuit cases in which the fact finder's deviation from average work life was based solely on the worker's argument that he intended to continue working. Cf. Barto v. Shore Constr., L.L.C., 801 F.3d 465 (5th Cir. 2015). Here, dePerrodil's vocational expert relied on his work history, etc. in presenting evidence that he would likely work until age 75. The trial court relied on that evidence, and the 5th Circuit found that was not clear error.

Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 356 (5th Cir. 2016).

Posted in 905(b), Damages: Medical costs    Tagged with paid or incurred, general maritime law, 905(b), medical expenses



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