Written by Lee Hoyle
Edited by Brian A. Cafritz
All tort cases, at the broadest level, consist of two elements: liability and damages. If the defendant prevails on liability, the plaintiff necessarily recovers nothing. However, the converse is not always true. The Virginia Supreme Court has reaffirmed twice in the past two years that a plaintiff who prevails on liability is not necessarily entitled to recover any damages. As long as the evidence supports such conclusion, the jury is free to decide that the plaintiff was not injured and award no damages.
In Gilliam v. Immel, 293 Va. 18 (2017), the plaintiff was the driver of a vehicle struck from behind by the defendant’s vehicle. The plaintiff went to the emergency room complaining of neck and low back pain. After the emergency room, however, her treatment focused on shoulder pain, eventually requiring surgery. She presented testimony from her shoulder surgeon, but did not provide other testimony on the reasonability or necessity of her medical treatment and bills. The defendant presented expert testimony denying that her shoulder injuries were related to the accident. Neither party presented evidence directly on the causation of the plaintiff’s emergency room treatment. The jury returned a verdict finding the defendant liable but awarding no damages.
Shumate v. Mitchell presented a similar, but slightly different scenario. ___ Va. ___, 822 S.E.2d 9 (2018). Like Gilliam, the plaintiff in Shumate was the driver of the front car in a rear-end accident. The plaintiff in Shumate, however, had a long and ongoing history of treatment for pain similar to what she claimed in the accident. She went to the emergency room after the accident complaining of symptoms similar to her prior issues. She continued treatment after the accident, including treatment already planned prior to the accident. She presented testimony from her treating physician relating portions of the post-accident treatment, including a surgery, to the accident. The defendant presented expert testimony that the plaintiff suffered no injuries in the accident. The expert acknowledged that it made sense for someone with the plaintiff’s medical history to seek evaluation in the emergency room, but did not admit that the evaluation indicated any injury in the accident. The jury again entered a verdict finding the defendant liable but awarding no damages.
The Virginia Supreme Court affirmed both verdicts. The question in such cases is whether the plaintiff has presented evidence sufficient to require the jury to award the plaintiff at least some portion of the claimed damages. In both cases, the evidence was contested on whether the plaintiff suffered any injury, so the jury was not required to award damages. Interestingly, the court reached this conclusion despite the fact that both plaintiffs visited the emergency room after the accident and neither defendant presented expert testimony denying that the emergency room visit was related to the accident. In Gilliam, the plaintiff failed to present expert testimony relating the emergency room visit directly. Without that testimony, the defendant’s evidence that the shoulder injury claimed at trial was unrelated to the accident sufficiently contested all of the plaintiff’s damages. In Shumate, the concession that it would be reasonable to seek medical evaluation did not concede that the evaluation indicated injury, particularly where the expert affirmatively opined that the plaintiff suffered no injury.
The typical assumption is that emergency room treatment will necessarily be related to an accident. These cases, taken together, show that this assumption is not necessarily true. Perhaps more specifically, these cases show that logical relation does not equate to recoverability of damages. Shumate shows that the logical relationship between the accident and treatment does not make the treatment recoverable. Recoverable damages must relate to injury. The fact that it made sense to seek evaluation did not render those expenses recoverable if the plaintiff suffered no injury. Gilliam shows that logical relation does not substitute for evidence. Where the parties argued about other injuries primarily, the mere fact that the plaintiff sought emergency room treatment after the accident does not substitute for evidence that the emergency room treatment was related to injuries caused by the accident. In both cases, the clear logical and temporal connections between the emergency room treatment and the accident was not sufficient to require the jury to find that the treatment was for injuries suffered in the accident.
These cases may be more the exception than the rule. Juries will likely find that emergency room treatment is related to the accident in most cases. However these cases show that such a finding is not required by law. An award of zero damages remains possible even where liability is uncontested. This possibility should be considered in settlement negotiations, particularly where the emergency room bills constitute a significant portion of the claimed damages. The Virginia Supreme Court has confirmed that the defendant need not necessarily accept those emergency room bills as related when entering negotiations, even if liability is admitted.