PRESENT: All the Justices
MARGARET BARKLEY
v. Record No. 030744 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 5, 2004
GEORGE E. WALLACE
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Norman Olitsky, Judge Designate
This is an appeal from a judgment in a personal injury action
in which a plaintiff allegedly sustained injuries as a result of a
motor vehicle collision. We consider whether the circuit court
erred in ruling that evidence of the plaintiff's medical bills and
expenses that were discharged in bankruptcy was inadmissible for
the limited purpose of proving her pain and suffering caused by
the accident.
The following facts are relevant to this appeal. In
September 1994, Margaret Barkley was operating a motor vehicle
that collided with another vehicle driven by George E. Wallace.
Barkley filed a motion for judgment against Wallace alleging that
she was injured as the result of Wallace's negligence in making
"an unsafe lane change from the center lane into the right-hand
lane of travel."1
1
Barkley also named Wallace's employer, the City of
Hampton, as a defendant. However, the City was later dismissed
from the action without prejudice by an order of nonsuit.
After filing her motion for judgment, Barkley filed a
bankruptcy petition in a United States Bankruptcy Court, and her
medical bills were discharged as a result of proceedings in that
court. Wallace filed a motion in limine in the circuit court to
preclude Barkley from introducing evidence of her medical bills
and expenses as proof of her alleged damages. In response,
Barkley asked the circuit court to allow her to present evidence
that the total amount of her medical bills was $11,365.33, because
"jurors oftentimes use the total amount of medical bills to try
and determine a fair amount of 'pain and suffering.' "
The circuit court granted Wallace's motion, prohibiting
Barkley "from presenting at trial any evidence of the medical
bills and medical expenses she incurred regarding her medical
treatment following the accident." The circuit court based its
ruling on the sole ground that those bills and expenses had been
discharged in bankruptcy. After this ruling, Wallace admitted
liability for the accident, and the case was set for a jury trial
on the issue of damages.
At trial, Barkley testified that she received medical
treatment, physical therapy, and chiropractic care for her
injuries. She stated that she did not obtain any medical
treatment after April 1995, because she no longer could afford to
pay her medical bills. Barkley explained that she missed some
physical therapy appointments because she lacked transportation,
2
had constant pain, was unable to pay for continued treatment, and
experienced forgetfulness resulting from certain medications she
was taking.
Barkley also testified that she was unable to perform her
duties as a financial consultant and insurance agent because of
continued pain and an inability to sit or stand for long periods
of time. She stated that she still experiences headaches and pain
in her neck and shoulders and is limited in her ability to perform
ordinary tasks, such as sewing clothes and lifting her
grandchildren.
Linda Schneider, M.D., Barkley's treating physician,
testified that from September 1994 through April 1995, she treated
Barkley for injuries caused by the accident. Dr. Schneider stated
that Barkley initially complained of headaches, nausea, difficulty
sleeping and focusing her eyes, and pain in her neck, back, and
shoulders. Dr. Schneider diagnosed Barkley as suffering from,
among other things, spasms in her neck and lower back. Dr.
Schneider referred Barkley for physical therapy and chiropractic
care to facilitate her recovery and to ease her back pain.
Dr. Schneider further testified that when she last examined
Barkley in April 1995, Barkley still was experiencing intermittent
stiffness and pain in her neck and lower back, and she could not
sit in one position for longer than ten minutes at a time. Dr.
3
Schneider stated that at the time of this last examination, she
thought that Barkley's condition would improve within six months.
At the conclusion of the evidence, the jury returned a
verdict in Barkley's favor, awarding her damages of $10,000, and
the circuit court entered final judgment on the verdict. Barkley
appeals.
Barkley argues that the circuit court erred in prohibiting
her from presenting to the jury the total amount of the medical
bills she incurred after the accident. She asserts that she was
entitled to introduce this evidence to demonstrate to the jury the
extent of her medical treatment to support her claim of pain and
suffering caused by the accident.
In response, Wallace argues that the circuit court properly
excluded from evidence the total amount of Barkley's medical
expenses because, at the time of trial, Barkley was no longer
responsible for the payment of her medical bills. Wallace
contends that the total amount of Barkley's medical expenses would
not have assisted the jury in understanding the extent of
Barkley's medical treatment. He further observes that Barkley
"had every opportunity at trial to present testimony outlining the
extent of her medical care."
In resolving this issue, we first emphasize the limited
nature of the question presented. Barkley did not seek to have
the amounts she was charged for medical services admitted into
4
evidence to obtain recovery of those amounts as an element of
compensatory damages. Thus, we are not presented with and do not
decide the question whether evidence of medical bills is
admissible to recover the amount charged for such treatment when a
plaintiff has obtained a discharge of those medical bills in
bankruptcy proceedings.2 We decide only the issue whether the
excluded evidence was admissible to prove the extent of Barkley's
medical treatment to support non-monetary elements of her
compensatory damages claim.
Generally, a litigant is entitled to introduce all competent,
material, and relevant evidence that tends to prove or disprove
any material issue in the case, unless that evidence violates a
specific rule of admissibility. Tarmac Mid-Atlantic, Inc. v.
Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995);
Barnette v. Dickens, 205 Va. 12, 15, 135 S.E.2d 109, 112 (1964).
Every fact that tends to establish the probability or
improbability of a fact at issue is relevant. Velocity Express
Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 205, 585 S.E.2d 557,
566-67 (2003); Virginia Elec. & Power Co. v. Dungee, 258 Va. 235,
260, 520 S.E.2d 164, 179 (1999); Wood v. Bass Pro Shops, Inc., 250
Va. 297, 303, 462 S.E.2d 101, 104 (1995). Therefore, evidence is
relevant if "it tends to establish a party's claim or defense or
2
For the same reason we do not consider whether, for
purposes of trial in a tort action, medical bills discharged in
5
adds force and strength to other evidence bearing upon an issue in
the case." Breeden v. Roberts, 258 Va. 411, 416, 518 S.E.2d 834,
837 (1999); accord McNeir v. Greer-Hale Chinchilla Ranch, 194 Va.
623, 628, 74 S.E.2d 165, 169 (1953).
We have not previously addressed the exclusion of medical
bills offered only to prove non-monetary elements of a
compensatory damages claim, such as pain and suffering, when those
bills have been discharged in bankruptcy. However, in a different
context not involving a bankruptcy discharge, we considered the
admissibility of medical bills offered for the limited purpose of
establishing pain and suffering as an element of damages.
In that decision, Parker v. Elco Elevator Corporation, 250
Va. 278, 462 S.E.2d 98 (1995), a plaintiff failed to comply with
an agreed discovery deadline requiring him to specify all monetary
damages he claimed from an injury allegedly sustained as a result
of the defendant's negligence. Because of this discovery
violation, the circuit court prohibited admission of the
plaintiff's medical bills despite his request that they be
received for the limited purposes of showing that he received
medical treatment for his injuries and to support his claim of
pain and suffering. We held that the circuit court erred in
excluding evidence of the medical bills for those limited
purposes. Id. at 280, 462 S.E.2d at 100.
bankruptcy are "incurred" by a plaintiff.
6
Like the medical bills in Parker, the medical bills before us
were relevant because they tended to establish the probability of
Barkley's claim that she experienced pain and suffering as a
result of the accident. Evidence of the medical bills also was
relevant to establish the inconvenience that Barkley experienced
because of Wallace's negligence.
These subjects were directly related to the central issue
before the jury, the extent of Barkley's damages. Moreover, the
fact that the bills had been discharged in bankruptcy was
irrelevant to the question whether Barkley experienced pain,
suffering, and inconvenience as a result of the accident. Thus,
the circuit court erred in excluding the medical bills on the
ground of Barkley's prior bankruptcy.
We therefore must decide whether the exclusion of this
relevant evidence was reversible error.3 In a civil case, the
erroneous exclusion of evidence is reversible error when the
record fails to show plainly that the excluded evidence could
not have affected the verdict. Pace v. Richmond, 231 Va. 216,
226, 343 S.E.2d 59, 65 (1986); see Code § 8.01-678. Thus, we
3
We note that the nature of the proof that Barkley sought
to have admitted was made clear to the circuit court in a
pretrial motion. Thus, no additional proffer of that excluded
evidence was required to preserve her claim of reversible error.
See Holles v. Sunrise Terrace, Inc., 257 Va. 131, 135, 509
S.E.2d 494, 497 (1999).
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consider the potential effect of the excluded evidence in light
of all the evidence that was presented to the jury.
We observe that both Barkley and Dr. Schneider testified
regarding the pain Barkley experienced. Nevertheless, we think
that the jury could have viewed the evidence of the medical bills
as persuasive and objective corroboration of the subjective
descriptions of pain related by Barkley in her own testimony.
The jury also could have viewed evidence of the bills as
objective corroboration of Dr. Schneider's testimony, which
necessarily relied in part on Barkley's subjective complaints of
pain. As Dr. Schneider explained during her testimony, complaints
of pain and tenderness are "subjective" in nature. Therefore, we
conclude that the record fails to show plainly that the evidence
of Barkley’s medical bills was merely cumulative in nature such
that its exclusion could not have affected the verdict. See Code
§ 8.01-678; May v. Caruso, 264 Va. 358, 363, 568 S.E.2d 690, 693
(2002). Accordingly, we hold that the circuit court's exclusion
of this evidence for the limited purposes sought by Barkley was
reversible error.
For these reasons, we will reverse the circuit court's
judgment and remand the case for a new trial.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE AGEE join,
concurring in part and dissenting in part.
8
I agree with the majority opinion except with regard to its
disposition of the question whether the trial court’s exclusion
of the evidence of the plaintiff’s medical bills was harmless
error. Considering the form of the evidence and the limited
purpose for which it was offered, I conclude that the evidence
in question was merely cumulative in nature and its exclusion
could not have affected the verdict. See May v. Caruso, 264 Va.
358, 363, 568 S.E.2d 690, 693 (2002).
It is important to emphasize that the plaintiff assigns
error to the trial court’s refusal to allow her to present to
the jury the total amount of her medical bills. In other words,
she is not asserting on appeal that she should have been allowed
to introduce the actual bills for the purpose of proving pain
and suffering.∗ This distinction is important because a single
figure representing the total amount of an individual’s medical
bills does not demonstrate the number of times the person
received treatment or the nature of the treatment. In some
instances, one noninvasive diagnostic test can cost as much as
many visits to a physical therapist or chiropractor.
As the majority notes, the plaintiff’s treating physician,
Linda Schneider, M.D., testified about her findings when she
first examined the plaintiff on September 26, 1994. Dr.
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Schneider also stated that she referred the plaintiff for
physical therapy treatments in order to speed up the recovery
and later for a chiropractic evaluation because the plaintiff
continued to experience significant symptoms. Dr. Schneider,
however, still treated the plaintiff while she underwent the
physical therapy and did so until April 1995. Based on a
stipulation by the parties that the plaintiff missed 17 out of
41 scheduled physical therapy appointments, it is apparent that
she underwent at least 24 treatments by a physical therapist.
Considering this testimony along with the plaintiff’s
complaints about her continued pain and inability to perform her
duties at work and at home, I conclude that evidence showing the
total amount of the plaintiff’s medical bills would not have
corroborated the plaintiff’s subjective complaints of pain or
Dr. Schneider’s testimony. This is so because that dollar and
cents figure did not reveal the kind or duration of treatment
the plaintiff received. For example, if the total amount of the
medical bills was comprised primarily of the charges incurred
when she was examined in a hospital emergency room and underwent
x-rays on the day of the accident, then that figure would not
have corroborated the plaintiff’s testimony that she suffered
pain for many months. However, if the figure represented many
∗
At trial, the plaintiff moved the circuit court to allow
her to submit her medical bills in “summary form” and to tell
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visits to Dr. Schneider, the physical therapist, and the
chiropractor, and also included charges for pain medications,
then the total amount of the medical bills would have been
objective corroboration of the plaintiff’s complaints of pain,
suffering, and inconvenience.
Without any itemization and explanation of the individual
charges included in the total amount of the plaintiff’s medical
bills, I conclude that the numerical figure which the plaintiff
sought to introduce would not have assisted the jury in
resolving any disputed issue in this case. See May, 264 Va. at
363, 568 S.E.2d at 693. Its exclusion by the trial court could
not have possibly affected the jury’s verdict and was therefore
harmless error. For that reason, I respectfully concur in part
and dissent in part and would affirm the judgment of the circuit
court.
the jury the total amount of the bills.
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