dissenting. This appeal arises from the trial court’s award of damages following the entry of a default judgment. The trial court entered a judgment of $4500 in medical expenses although the testimony and verified complaint set the amount at $7135. The defendant was present at neither the default hearing nor the hearing on damages. The majority affirms, holding that it was within the trial court’s discretion to enter judgment for the lesser amount. Appellant argues that Arkansas law does not permit the trial court to reduce medical expenditures incurred as a result of the tortfeasor’s action for services actually rendered by a competent medical provider. Appellant is correct.
The record contains no evidence upon which the judge could have based a reduction of damages or a finding that the medical expenses incurred were not related to the tortfeasor’s negligence. A plaintiff who seeks to recover medical expenses must prove that the expenses were reasonable and necessary, Ponder v. Cartmell, 301 Ark. 409, 784 S.W.2d 758 (1990); Howard W. Brill, Arkansas Law of Damages § 29-1 (4th ed. 2002), and whether the medical expenses were reasonable and necessary is a question of fact for the trier of fact. See Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). None-the-less, there is a distinction between proof of reasonableness and proof of necessity. “Necessary” means causally related to the tortfeasor’s negligence. Ponder v. Cartmell, supra. If a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she received, whether or not the care was medically necessary, are recoverable. Id. Expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses; in some cases, the testimony of the injured party alone can provide a sufficient foundation for the introduction of medical expenses incurred. Id.
In this case, the issue of negligence was decided by default judgment. The defendant, now appellee, did not appear at the trial on damages, and the medical expenses presented were undisputed. There was no evidence that the medical expenses were incurred for a condition other than the tortfeasor’s negligence. An award of damages cannot be made on the basis of speculation. Duncan v. Foster, 271 Ark. 591, 609 S.W.2d 62 (1980). Because there was no evidence disputing the tortfeasor’s negligence, nor the causal relationship of the negligence to the injury, nor the validity of the invoice of services for treatment, the reduction by the trial judge was based purely on speculation. The majority does not attempt to explain how the $4500 amount for medical expenses was derived because no explanation is possible based on the evidence in the case.
The majority attempts to distinguish Ponder by saying that Ponder was reversed because the trial court Ahad improperly admitted testimony affecting the necessity of a specific course of treatment,” but in this case “the judge allowed Young to testify regarding her medical treatment and submit her chiropractic bills into evidence.” The majority justifies the trial court’s reduction of damages stating that Athe court specifically found that Young’s medical bills were excessive in light of the fact that she presented no expert witness to testify regarding what was medically required to treat her injuries.”
The majority’s reasoning directly contradicts our supreme court’s admonition that “ [i] f a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.” Ponder, 301 Ark. at 412, 784 S.W. 2d at 761; (citing O’Quinn v. Alston, 213 Ala. 346, 104 So. 653 (1925) (where treating surgeon amputated finger, it was error to ask defense expert whether amputation was necessary); Whitaker v. Kruse, 495 N.E.2d 223 (Ind. App. 1986) (plaintiff may recover expenses of unnecessary surgery)).
Given our supreme court’s specific directive that it is error to allow testimony challenging the medical necessity of the treatment, I cannot understand the majority’s declaration that the reduction is justified because appellant failed to prove that the treatment was medically necessary to treat her injuries. The majority’s position is that Ponder only prohibits the introduction of evidence to support a reduction in damages, but does not specifically prevent the judge from reducing damages in the absence of any evidence to support such a reduction.
I am at a similar loss to understand the majority’s footnoted explanation that our supreme court’s statement that expenses for medical care received, whether or not the care is medically necessary, are recoverable “does not definitively conclude that the fact-finder is required to award that amount as damages once liability has been established.” The majority concludes that to accept that premise would do away with a requirement for a hearing on damages and require a court to award “whatever amount of compensatory damages prayed for and there would be no requirement that a jury deliberate on the amount.”
Contrary to the majority’s conclusion, although liability was established by default, nothing prevented appellee from contesting appellant’s proof of damages. In Arkansas, a default judgment establishes liability but not the extent of damages. Byrd v. Dark, 322 Ark. 640, 911 S.W.2d 572 (1995); Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). Our supreme court has emphasized that in Arkansas, unlike some jurisdictions, a hearing is required after default to establish damages, and the plaintiff must introduce evidence to support damages. See Volunteer Transp., Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004) (reversing and remanding default-judgment case, where there was no testimony specifically regarding the medical bills or the summary, no proof that each expense was necessary or related to the accident with Volunteer Transport, and record was silent as to how the trial court arrived at the damage amounts); see also Henry & Aclin Ford v. Landreth, 254 Ark. 483, 494 S.W.2d 114 (1973) (holding that trial court erred in permitting appellee to present her medical bills “in a bundle” without proper authentication where she suffered an injury unrelated to the one upon which the claim was made, and it was appellee’s burden to show that each of these bills was necessary as a result of the automobile accident rather than from the gunshot wound or any other cause or illness).
Although the appellee could have challenged appellant’s proof of damages, she chose not to do so. In this case, there is no evidence of any other wound, cause, or illness present from which the trial court could determine the medical bills were incurred for a cause other than the tortfeasance of appellee. The majority specifically affirms the trial court’s reduction based on appellant’s failure to present an expert witness to testify that the treatment “was medically required to treat her injuries.” That basis for reduction directly contradicts the law as stated in Ponder. The trial court clearly credited appellant’s testimony and acknowledged the authenticity of the documentation of medical expenses that it received into evidence. Therefore, the judgment should be reversed.
I respectfully dissent.
Bird, J., joins.