In almost every circuit court case involving a bodily injury claim, at some point plaintiff’s counsel sends a set of basic Requests for Admissions regarding medical bills and records. The request always seeks the admission of three (3) basic things as to the plaintiff’s bills and records: 1) admit the bills and records are authentic; 2) admit the bills and records are reasonable in cost and scope; and 3) admit the bills and records are causally related to the accident alleged in the lawsuit. In most cases items 1) and 2) can, or must, be admitted without issue.
This essay is concerned solely with item 3) or causal relation. As far back as can be remembered the answer to the “causal relation” request for admission is to deny, on the grounds that it requires an expert opinion and modern discovery rules and physician-patient privilege prevent defense counsel from simply calling the physician on the phone to discuss whether a particular bill or record is causally related to the subject accident (not that many physicians would take the call anyway). Conversely, it seems counter-intuitive that defense counsel could be forced to take a deposition of plaintiff’s treating physician in order to get to the bottom of causation. For the most part plaintiffs’ counsels have allowed the denial to stand without objection but lately there has been a movement to challenge the denial.
What have the Courts said about this issue?
First, Rule 4:11 of the Rules of the Supreme Court of Virginia provides in part:
The answer [to a request for admission] shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission.
Several Virginia Circuit Court opinions are instructive on the issue. In Sharif v. Brown, 51 Va. Cir. 181 (Fairfax 2000) Judge R. Terrence Ney addressed the issue. In that case plaintiff filed a post-trial motion for sanctions on the grounds that plaintiff had been required to call an expert witness at trial in order to testify about injuries suffered and medical expenses, as a result of defendant’s “unreasonable” denials of Request for Admissions. Id. at 181. Denying the plaintiff’s motion, Judge Ney noted that the plaintiff’s argument failed because defendant “admitted the genuineness of the medical bills incurred by the plaintiff” and that “[t]hose bills could have been submitted without the necessity of calling a treating physician.” Id. (citation omitted). The records could have been admitted at trial and plaintiff could have made his arguments to the jury based on the bills and records or the plaintiff could have gone the extra step of calling one or more of plaintiff’s treating physicians to give opinions.
From the defense perspective, it would be unfair to force a defendant to either depose plaintiff’s treating physicians to determine if his or her medical opinions comport with those asserted by plaintiff or to blindly accept and admit to a plaintiff’s assertions regarding medical opinions in Requests for Admission.
In Streets v. Bechamps, 34 Va. Cir. 279 (Warren 1994), an opinion by Judge John E. Wetsel, Jr., defendants served Requests for Admissions on the plaintiff regarding the testimony and opinions, based in part on statistics, of plaintiff’s expert witness, Dr. Singer. Id. at 280. The responses were, in effect, that plaintiff understood but rejected the doctor’s opinion(s). Id. Rejecting the defendant’s motion to determine the sufficiency of the answers Judge Wetsel noted:
By their nature, opinions, which are subject to infinite degrees of variation, are frequently more difficult to pin down than are facts. Therefore, where possible, it is preferable to frame requests for admissions as simple declarations of fact, for example, compare “it was hot yesterday” with “it was 80 yesterday.” If yesterday was in August, it was cool, if it was in December, then it was hot. In summary, it appears that the Plaintiff has now answered with qualifications the Requests for Admissions based on Dr. Singer’s opinion testimony, and, while they have qualified their answers in a manner which the defense does not approve, the responses now comply with the Rules of Court.
Id. at 180-181
Finally in Walker v. Bon Secours Health Sys. 56 Va. Cir. 532 (Norfolk 2001) Judge Marc Jacobson denied a party’s motion regarding the sufficiency of Requests for Admissions answers that were based on deposition testimony. Judge Jacobson noted:
Counsel for DePaul is seeking, in effect, Summary Judgment based upon the deposition of Dr. Robey by abstracting various testimony or evidence from his deposition. If a party wishes to impeach or bring forth an inconsistency in the testimony contained within a deposition, the deponent is normally given an opportunity to explain or qualify the testimony, if appropriate. The trier of fact, be it a judge or a jury, then determines the credibility of the witness and/or the weight of probative value of the particular testimony.
Id. at 533.
In conclusion, if plaintiff’s counsel insists on litigating the issue of whether or not the question of medical causation is appropriate for a Request for Admissions these cases should be useful in resisting.