Can You Exclude Plaintiff’s Medical Bills at Trial if They Have Been Discharged in Bankruptcy?

Written by Jessica Relyea, Esq.

Edited by Brian A. Cafritz, Esq.

The question of what amount of a plaintiff’s medical bills is recoverable is an issue that comes up with regularity in all personal injury cases.  Defendants need to know how they can reduce the amount of damages a plaintiff can blackboard at trial.  In Virginia, the collateral source rule prohibits a defendant from reducing or limiting the amount of medical damages being claimed because the bills were paid in whole or in part by an insurance company, other benefit, or otherwise written off by the provider.  Acuar v. Letourneau, 260 Va. 180, 189-193 (Va. June 9, 2000).  In other words, Plaintiff can present to a jury the full retail amount of billed medical specials that he is claiming were incurred as a result of the incident.  The principle behind the collateral source rule is that a plaintiff is entitled to compensation sufficient to make him whole, but without creating a windfall.  Id. In scenarios where the balance is difficult to strike, the courts have held its better to fall on the side of allowing a Plaintiff to receive double recovery than to allow a defendant to escape liability for his wrongs.  Id.

However, what happens if Plaintiff has filed bankruptcy and the medical bills that were incurred as a result of an accident were discharged?  In that scenario, Plaintiff is absolved of paying any amount on the medical specials.  Does Virginia allow a Plaintiff to still recover for those damages in a personal injury lawsuit?

The answer depends on whether you are in federal or state court.  The Supreme Court of Virginia has made a limited holding that the amount of specials damages is admissible for showing pain and suffering, as well as inconvenience. Barkley v. Wallace, 267 Va. 369, 373 (Va. Mar. 5, 2004).  The Court refused to expand the ruling any further.  The City of Roanoke Circuit Court did rule that a Plaintiff who had medical bills discharged in bankruptcy could admit those bills into evidence for the purpose of claiming the bills as a recoverable compensatory damage.  Dodd v. Lang, 71 Va. Cir. 235, 243 (Va. Cir. Ct. June 29, 2006). The circuit court did state that any recovery for those compensatory damages would have to go towards any outstanding liens or assignments, or directly to the health care providers. The opinion in the City of Roanoke would be persuasive authority, but not binding, on any other circuit court in Virginia.

The Eastern District of Virginia, however, has ruled that medical bills discharged in bankruptcy are not admissible for any purpose.  The Court held that whether the discharged bills were admissible for the purpose of showing pain and suffering or inconvenience is an evidentiary question, which is governed by the federal rules and therefore, discharged medical bills are not admissible for that purpose.  Payne v. Wyeth Pharms., Inc., 2008 U.S. Dist. LEXIS 91849, *16-21 (E.D. Va. Nov. 12, 2008).  The federal court conceded that whether the bills are admissible to show a recoverable compensatory damage would be governed by Virginia state law.  In analyzing both Barkley and Dodd, the EDVA held that based on the facts before it and under Virginia law, the discharged were not admissible as a recoverable compensatory damage.  Id. at *5- *16.

Given the relative lack of binding case law on this topic, it is important to research the Plaintiff’s history for any prior or pending bankruptcies and move to exclude any medical bills that have been discharged.



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