Martinez v. MILBURN ENTERPRISES, INC.

Davis, C.J., Rosen and Biles, JJ.,

concurring in part and dissenting in part: We agree the district court erred in limiting plaintiff s recovery for medical expenses to only those cash amounts actually paid by plaintiff and her health insurance company. The jury must determine the reasonable value of medical services. But this determination should not depend upon how successful plaintiff s insurance company was at negotiating lower prices to benefit its insureds. For that reason, the district court’s ruling on the motion in limine must be reversed. We concur in this result.

We write separately to express our disagreements with our colleagues’ approach as to how the district court should proceed on remand. Our colleagues see this case as an opportunity to depart from this court’s long-standing limitations regarding collateral source evidence, which would bar the admission of those cash amounts actually paid by plaintiff or on her behalf by her health insurance company. These limitations derive from our case law dating back more than 100 years, and the majority’s method of departure is unnecessarily complicating. We discern no compelling reason now to alter the evidentiary landscape imposed by this court over these many years regarding a plaintiff s collateral source benefits.

We would not change this court’s historical collateral source principles. We would not permit a jury to be told the plaintiffs medical bills “might be satisfied” by a particular amount. We would continue to bar admission into evidence of the amounts actually paid to satisfy those charges. We would further bar admission of any billing write-offs secured under plaintiff s private medical insurance contract. These evidentiary facts exist only because of the relationship between plaintiff, her health care providers, and her private medical insurance carrier. This relationship was created when plaintiff procured her own health care insurance. Under this *624court’s existing case law, defendant is not permitted to enjoy any benefit from plaintiff s private insurance contract. That principle should be preserved.

Background Applicable to this Issue

In Kansas, personal injury plaintiffs are entitled to claim as damages the reasonable value of medical services necessary to recover from injuries caused by a wrongdoer. Shirley v. Smith, 261 Kan. 685, 693, 933 P.2d 651 (1997) (“The reasonable expense of treatment is a proper element of economic damages.”); Lewark v. Parkinson, 73 Kan. 553, Syl. ¶, 85 P. 601 (1906) (“Expenses incurred by an injured [plaintiff], which resulted from the injuries, including compensation for services of nurses, are proper elements of damages in action against the [defendant] in such a case, notwithstanding the services were performed by a member of the family of the injured person, if the services were necessary and the charges reasonable.”); see also K.S.A. 40-3117 (In a tort action against the owner, operator, or occupant of a motor vehicle, “the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different from the amount actually charged shall be admissible in all actions to which this subsection applies.”) and PIK Civ. 4th 171.02 (recoverable damages for personal injury include “reasonable expenses of necessary medical care”).

Similarly, the alleged wrongdoer has a right at trial to challenge the reasonableness of the expenses plaintiff claims. Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982). “The reasonable value of services is generally [defined as] the reasonable charges of the profession for those services, not the usual charges of the particular physician or surgeon.” Bates v. Hogg, 22 Kan. App. 2d 702, 709, 921 P.2d 249 (1996) (Rulon, J., dissenting) (quoting 2 Minzer, Nates, Kimball, Axelrod, and Goldstein, Damages in Tort Actions, § 9.20, P. 9-14 [1991]); Lewark, 73 Kan. at 556 (“ If she had paid ten times the true value of [medical] services she could only have recovered what such services were reasonably worth.’ ” [quoting Brosnan et al v. Sweetser, 127 Ind. 1, 8, 26 N.E. 555 (1891)]).

*625In this case, Milburn Enterprises Inc. (Milbum) sought to shortcut its evidentiary challenge to the reasonableness of Karen Martinez’ damage claim for her medical care. It did this by asking the district court to depart from instructing the jury to determine the reasonable value based on the evidence to simply asking the court to decide as a matter of law that her claim was limited to the cash amounts actually paid for medical care and treatment resulting from Martinez’ personal medical insurance. The district court agreed with Milbum and permitted this limitation, relying on the majority opinion issued by a divided Court of Appeals panel in Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), superseded on other grounds by K.S.A. 1999 Supp. 60-226(b), (e) and 60-237(c), as stated in Frans v. Gausman, 27 Kan. App. 2d 518, 527, 6 P.3d 432, rev. denied 270 Kan. 897 (2000), concerning health care provider write-offs under the federal Medicaid program. The obvious outcome from the district court’s order was to transfer the benefit plaintiff derived from the contractual arrangements between her insurance company and her health care providers to the defendant Milbum. These contractual arrangements resulted in certain negotiated write-offs, i.e. discounts, to the amount billed under Martinez’ contract for insurance. Clearly, Milbum’s motion in limine would not have been available if Martinez were uninsured.

This court agrees the district court was wrong to limit plaintiff s damages to the actual amount paid under her personal health insurance agreement. But the court’s members disagree on how the collateral source evidence should be handled on remand.

Three justices contend Milburn should be permitted to offer into evidence: (1) the actual payments made to plaintiffs health care providers under her personal insurance contract; and (2) the medical expense write-offs provided as a result of that insurance. They sanction a contrivance that would advise the jury that the plaintiff s medical bills could be “satisfied” by a payment that happens to coincide with the cash payments made by the plaintiffs health care insurance and plaintiff. There would be no mention that plaintiff actually had health insurance to pay for her care and treatment, although the implication is obvious. Any confusion this *626may cause, they believe, can be corrected with limiting jury instructions. Justice Johnson begrudgingly joins these three in order to form the majority needed to impose this methodology on our trial courts, even though he vehemently disputes his colleagues’ legal analysis that leads to this result.

We disagree with the majority approach and discern no reason why there should be any change to both litigants’ respective evi-dentiary obligations regarding the reasonable value and necessity of the medical services provided to plaintiff as defined by our existing law. Similarly, we believe imposing the majority’s new evi-dentiary methodology will most surely allow a jury to infer the existence of a plaintiff s insurance, which is forbidden by the collateral source rule; inject juiy confusion into what are already complex deliberations at trial; and ultimately lead to the demise of the collateral source rule itself. We dissent from that portion of the opinion by the majority as discussed below.

Analysis

The Collateral Source Rule in Kansas

Put simply, the collateral source rule is a common law tenet preventing the introduction of certain evidence. Farley v. Engelken, 241 Kan. 663, 665, 740 P.2d 1058 (1987). In this state, our long-standing collateral source rule provides that “damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him, and to the procurement of which the wrongdoer did not contribute.” Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 354-55, 388 P.2d 832 (1964) (declaring this rule is “well settled” and citing 15 Am. Jur., Damages § 201, pp. 617, 618); see also Davis v. Kansas Electric Power Co., 159 Kan. 97, 109, 152 P.2d 806 (1944) (“[T]he general rule applicable is that a tort-feasor is not entitled to have damages caused by him reduced because the person whom he injured by his tort had insurance.”); Berry v. Dewey, 102 Kan. 593, Syl. ¶ 10, 172 P. 27 (1918) (“Financial benefits derived by the heir of a person who has lost his life by the wrongful act of another cannot be deducted from the damages sustained, and the verdict and judgment be reduced by *627the benefits received.”); Lewark, 73 Kan. at 556 (stating services donated by a good friend or family member are the good fortune of the injured party and not a concern of the person liable for damages).

The collateral source rule prevents the jury from hearing evidence regarding certain payments or gratuitous services provided for the plaintiffs benefit. The rule is frequently stated simply as an understanding that benefits received by a plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the plaintiff s damages otherwise recoverable from the wrongdoer. Farley, 241 Kan. 663, Syl. ¶ 1; Thompson v. KFB Ins. Co., 252 Kan. 1010, 1014, 850 P.2d 773 (1993); see Gregory v. Carey, 246 Kan. 504, 508, 791 P.2d 1329 (1990); Harrier v. Gendel, 242 Kan. 798, 800, 751 P.2d 1038 (1988); Wentling v. Medical Anesthesia Services, 237 Kan. 503, 515, 701 P.2d 939 (1985); Allman v. Holleman, 233 Kan. 781, 788, 667 P.2d 296 (1983); Pape v. Kansas Power & Light Co., 231 Kan. 441, 446, 647 P.2d 320 (1982); Negley v. Massey Ferguson, Inc., 229 Kan. 465, 469, 625 P.2d 472 (1981); Southard v. Lira, 212 Kan. 763, 769, 512 P.2d 409 (1973).

This court has also said the collateral source rule “ precludes admission of evidence of benefits paid by a collateral source, except where such evidence clearly carries probative value on an issue not inherently related to measurement of damages.’ ” Wentling, 237 Kan. at 515 (quoting 3 Minzer, Nates, Kimball, Axelrod and Gold-stein, Damages in Tort Actions § 17.00, p. 17-5 [1984]). Specifically in the private insurance context, such as the case now before us, we have held:

“The reasons generally given for the [collateral source] rule are that the contract of insurance and the subsequent conduct of the insurer and insured in relation thereto are matters with which the wrongdoer has no concern and which do not affect the measure of his liability.” (Emphasis added.) Rexroad, 192 Kan. at 354-55.

In other words, the overwhelming case law from this court has been that a defendant is entitled to challenge the reasonableness of a plaintiff s damage claim but may not introduce evidence derived from a collateral source to mate that challenge. Instead, de*628fendants must approach the issue through other evidentiary means. For example, if Wesley Medical Center, the health care provider in this case, is appropriately documented for evidentiary purposes to have a typical charge-to-cost ratio as claimed by the amicus curiae Kansas Association of Defense Counsel, this general evidence might be available to the defendant to challenge the reasonable value of plaintiffs medical services and treatments. But specific evidence regarding collateral source benefits obviously resulting from the existence of plaintiff s private medical insurance is not admissible.

Why Kansas has a collateral source rule

From its earliest beginnings, the purposes behind the collateral source rule were articulated by this court as being grounded in notions of equity, fairness, and inherent prejudice to the plaintiff if such evidence was presented to a jury. More recently, our cases evolved to emphasize the additional public policy interests of deterrence and accountability for tortfeasors. In Berry, one of our early cases on the subject, the defendant tortfeasor in a wrongful death action argued the heir’s damages should be reduced by the amount of her inheritance from the decedent. Characterizing this argument as “untenable,” this court stated: “Although it appears to have standing in the courts of some of the states, it does not address itself to the judgment of this court as being sound, legal, equitable, or fair, and [evidence of the inheritance] cannot be permitted to reduce the amount of recovery in any way.” 102 Kan. at 598.

In Rexroad, this court said the plaintiffs insurance contracts were of “no concern” to the wrongdoer. 192 Kan. at 355. Again recognizing equity and fairness principles, this court noted that just as a plaintiff cannot tell the jury a defendant has liability insurance to pay a judgment, the same rule has “application in reverse” regarding plaintiff s insurance benefits. 192 Kan. at 355. In Southard, this court similarly noted it would be “highly prejudicial to the plaintiff and should not [be] permitted” to allow defendant to put into evidence a cash settlement reached with plaintiff s uninsured motorist insurance carrier. 212 Kan. at 769.

*629In Pape, this court used the collateral source rule to hold that it was improper for a defendant to offer evidence that a surviving spouse in a wrongful death action had remarried, characterizing such evidence as “highly speculative” on the claimed justification that it showed mitigation of damages, and adding there was no justification “to depart from our long recognition of the collateral source rule . . . .” 231 Kan. at 447. In Negley, we said it was improper in a wrongful death action to disclose to the jury that the surviving spouse was receiving workers compensation benefits, explaining that this “would present the same danger of prejudice as does the disclosure of insurance in other actions.” 229 Kan. at 473. In Allman, this court denied the admission of evidence of financial resources available to minor plaintiffs resulting from their father s death, stating “[a]s the definition illustrates[,] the collateral source rule is merely a species of the relevancy doctrine.” 233 Kan. at 789. In other words, plaintiff s receipt of collateral benefits was irrelevant on the damages issue.

In Wentling, this court quoted with approval 3 Minzer, Nates, Kimball, Axelrod and Goldstein, Damages in Tort Actions § 17.00, p. 17-5 (1984), to describe the collateral source rule as follows:

“ ‘The collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor. The rule also precludes admission of evidence of benefits paid by a collateral source, except where such evidence clearly carries probative value on an issue not inherently related to measurement of damages.’ ” 237 Kan. at 515.

In Harrier, we compared the prejudice caused by a plaintiff revealing to a jury that the defendant had insurance to satisfy the requested damages as the same prejudice a plaintiff would suffer from the introduction of collateral source benefits. We said: “The distinction is one without a difference.” 242 Kan. at 801. We continued by declaring: “To allow the introduction of evidence that the plaintiff received collateral source benefits is inherently prejudicial and requires reversal.” 242 Kan. at 802. In Rose v. Via Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003) (Rose I), modified on rehearing 279 Kan. 523, 113 P.3d 241 (2005) (Rose II), a majority of this court picked up on the theme stated *630in Wentling and approvingly drew from Judge, now Chief Judge, Rulon s dissenting opinion in Bates to state:

“The puipose of the collateral source rule is to prevent the tortfeasor from escaping from the full liability resulting from his or her actions by requiring the tortfeasor to compensate the injured party for all of the harm he or she causes, not just the injured party’s net loss. [Citations omitted.] A benefit secured by the injured party either through insurance contracts, advantageous employment arrangements, or gratuity from family or friends should not benefit the tortfeasor by reducing Iris or her liability for damages. If there is to be a windfall, it should benefit the injured party rather than the tortfeasor.” 276 Kan. at 544.

As the 100-year-old history of this court’s treatment of the collateral source rule illustrates, we have traditionally viewed the introduction of collateral source evidence with disdain. This court has characterized the potential admission of collateral source-related evidence as being inherently unfair and prejudicial because of the influence it can have upon the jury in determining the recoverable damages. We also have found it contrary to the important policy aspects of deterrence and accountability for tortfeasors, who are not entitled to have damages caused by them reduced because the persons whom they injure had insurance. See Davis, 159 Kan. at 109.

In this case, it is agreed plaintiff s private medical insurance contract is wholly independent of and collateral to Milbum. Plaintiff s medical insurance did not come from Milbum or any person or entity acting for Milbum. Our issue only arises because Martinez had the foresight to secure for herself private medical insurance. Therefore, the evidentiary question advanced by our colleagues’ view is whether permitting Milburn to present to the jury tire cash payments and expense write-offs resulting solely from plaintiff s private medical insurance contract violates the collateral source rule as this court has traditionally articulated it. We believe it does.

Put another way, should the jury’s damage calculations for Martinez be different just because she has private health insurance from calculations for someone else who is uninsured? Under the collateral source mle and common sense, the question answers itself. The mle’s purpose is to ensure a party’s treatment is the same for all plaintiffs by not reducing the tortfeasor’s liability for *631damages through the introduction of collateral source payments made on a particular plaintiff s behalf. Rexroad, 192 Kan. at 355.

With our colleagues’ approach, an uninsured plaintiff would still be able to collect from a jury the original amount billed. But an insured plaintiff, under the same facts, would likely see a reduction in damages simply because he or she had the good sense to be insured. Likewise, the tortfeasor lucky enough to injure an insured plaintiff would be able to reduce its liability by seizing on the benefits available to the insured plaintiff, even though the tortfeasor did not contribute to the those insurance benefits. The justification for this disparate treatment is completely contrary to this court’s prior case law as discussed above.

This court looked at the interplay between the collateral source rule and actual cash payments and medical write-offs in only one case, which had to be reheard to produce a binding result by a divided court. See Rose I, 276 Kan. at 539; and Rose II, 279 Kan. 523. But both Rose decisions dealt with the question at hand only in the context of the federal Medicare program, which has its own statutoiy and regulatory scheme. Furthermore, those decisions involved an even more limiting factual scenario in which the tortfea-sor (Via Christi) was the health care provider that gave the write-off benefit for the plaintiffs medical treatment. In the end, the unique nature of the Medicare program and the facts resulted in a divided court holding that the Medicare write-off by Via Christi could be allowed as a setoff or credit against the portion of the economic loss attributable to medical expenses because it “reflected a cost incurred by the defendant.” (Emphasis added.) Rose II, 279 Kan. at 533.

Accordingly, the only controlling principle on the subject emerging from this court to date is to exclude evidence of medical write-offs and actual payments, except when the medical provider is also the claimed tortfeasor. Those facts are not presented here, so the Rose II decision has no controlling precedential value in this case.

The Court of Appeals has addressed the write-off issue in four cases. We consider those next.

*632 Kansas Court of Appeals’ Decisions

The first Kansas appellate court to consider the question of actual cash payments and medical write-offs w>as Bates in which a divided Court of Appeals panel considered whether an injured plaintiff could include in his economic damage claim amounts written off by a health care provider under the federal Medicaid program. The two-judge majority concluded that the collateral source rule was inapplicable under the circumstances and agreed further to limit plaintiffs claim to the actual amounts paid. 22 Kan. App. 2d at 705 (“[T]he amount allowed by Medicaid becomes the amount due and is the ‘customary charge’ under the circumstances.”).

The Bates majority also expressed its agreement with the public policy reflected in a federal court decision in a similar North Carolina case, stating that it would be “ ‘unconscionable to permit the taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tort-feasor and pocket the windfall.’ ” 22 Kan. App. 2d at 706 (quoting Gordon v. Forsyth County Hospital Authority, Inc., 409 F. Supp. 708, 719 [M.D.N.C. 1976]). But the Bates majority did nothing to reconcile its result with this court’s historical basis for strictly enforcing the collateral source rule. This court criticized that failing in Rose I. 276 Kan. at 545.

Judge Rulon vigorously dissented from the Bates majority view, taking the general position that our state’s case law required that a plaintiff recover the reasonable value of medical services regardless of the amount actually paid or written off because of the collateral source rule. Harkening back to our early collateral source jurisprudence, Judge Rulon noted:

“While the plaintiff can only recover the reasonable value of the medical services provided, there is no requirement in Kansas that it be shown that any amount was actually paid. Were it otherwise, there is no way an injured party could recover damages for services provided gratuitously by family members or charity.” Bates, 22 Kan. App. 2d at 710 (citing Lewark v. Parkinson, 73 Kan. 553, 85 P. 601 [1906]).

Judge Rulon then observed the concepts of deterrence and accountability inherent in our rule, by stating: “The purpose of the collateral source rule is to prevent a wrongdoer from escaping from *633full liability for the consequences of his or her negligence.” 22 Kan. App. 2d at 709 (citing 2 Minzer, Nates, Kimball, Axelrod, and Gold-stein, Damages in Tort Actions § 9.60, p. 9-88 [1991]). He then quoted from 22 Am. Jur. 2d, Damages § 566, p. 638, the following passage:

“Thus, if the basic goal of tort law is only that of compensating plaintiff for his [or her] losses, evidence of these benefits should be admitted to reduce the total damages assessed against the defendant. At the same time, reducing recovery by the amount of the benefits received by the plaintiff would be, according to most courts, granting a ‘windfall’ to the defendant by allowing him [or her] a credit for the reasonable value of those benefits. Such a credit would result in the benefits being effectively directed to the torffeasor and from the intended 'party the injured plaintiff. If there must be a windfall, it is usually considered more just that the injured person should profit, rather than let the wrongdoer be relieved of full responsibility for his [or her] wrongdoing.” (Emphasis added.)

Later, the Rose I majority limited the Bates majority holding to cases in which a Medicaid contract mandated the nonrecourse discount. Rose I, 276 Kan. at 545. But the fact that all members of this court today refuse to adopt either the result or underlying public policy reflected by the Bates majority speaks more pointedly to its failings and the lack of precedential value both it and its progeny should be given in the present discourse.

The next Court of Appeals panel to address the issue did so during the period of time between Rose I and the rehearing in Rose II. That panel declared it was not constrained to follow Rose I because the pending rehearing suspended the binding effect of the original decision, and it extended Bates to apply to a private insurance carrier being sued by its own insured under an uninsured motorist clause. Fischer v. Farmers Ins. Co., No. 90,246, unpublished opinion filed February 18, 2005. The panel determined it was proceeding with the case “based upon the currently effective precedent of Bates and upon our firm belief that the collateral source rule has no place in the determination of the proper measure of damages to be applied to all plaintiffs’ economic damages.” Slip op. at 11-12.

In Fischer, the tortfeasor was not a party to the dispute. The trial court limited Fischer to presenting to the jury only the cash *634amounts actually paid personally and by her medical insurer. The write-off amounts were excluded from plaintiff s claim. Relying on Bates, the Court of Appeals panel, which included then-judge, now Justice, Johnson, affirmed. The panel based its decision on its belief that Bates was not “principally driven” by the fact that a Medicaid contract mandated die write-off at issue. Slip. op. at 4.

The same Court of Appeals judges who comprised the Fischer panel again sat as a panel to decide the next case in our series, Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005, rev. denied 280 Kan. 983 (2005). Not surprisingly, that panel extended Bates to Medicare write-offs and repeated its declaration of freedom from the Bose I opinion because it was still pending on rehearing. The panel again held that the amount permitted to be charged to Medicare patients was the “customary charge” for their medical treatment, so a Medicare patient’s damages were limited to that amount.

More recently, a Court of Appeals panel in Adamson decided that write-offs under a private insurance contract providing personal injury protection to the plaintiff and a “self-pay” write-off for expenses charged directly to the plaintiff by a health care provider were admissible and should not have been excluded by the trial court under the Bates rationale. Adamson v. Bicknell, 41 Kan. App. 2d 958, 207 P.3d 265 (2009), rev. granted March 31, 2010. In Adamson, plaintiff did not challenge the trial court’s exclusion of Medicaid write-offs because of Bates but did dispute the issue as to the other write-offs, claiming they had nothing to do with Medicaid. The Adamson panel limited the holding in Bates to Medicaid, agreed with plaintiff, and unanimously reversed the trial court’s exclusion of this evidence on the basis of the collateral source rule. Adamson, 41 Kan. App. 2d at 971-72. The Adamson court did not address its sister panel’s extension of Bates in Fischer.

In summary, the common threads running through three Court of Appeals’ decisions (Bates, Fischer, and Liberty) are these: (1) plaintiffs are limited to claiming only the cash amounts actually paid personally, their insurance carriers, or federal assistance programs; and (2) a belief that the question in these cases is not the collateral source rule, but the reasonable value of medical care and *635expenses for the treatment of plaintiffs injuries. As to the first point, this court has rejected it. As to the second, it begs the issue because we are concerned here with what evidence may be elicited at trial on this issue. The collateral source rule has always been a limitation on evidence about the reasonable value of medical service, which limitation is founded on principles of fairness, equity, relevance, deterrence, and accountability for defendants. In effect, these Court of Appeals panels simply answer the question by restating it. This ignores the underlying principles this court has stated for having a collateral source rule.

Finally, the more recent Adamson decision conflicts with the other panels’ rationale as it concerns write-offs provided directly to a plaintiff or to plaintiff s private medical insurance carrier. In summary, we find little adherence to this court’s historical reading of the collateral source rule in the various approaches and rationales taken by the Court of Appeals.

Kansas Federal Court Decisions

Our colleagues reference three unpublished federal district court decisions they find reinforcing to their viewpoint. Wildermuth v. Staton, 2002 WL 922137 (D. Kan. 2002) (unpublished opinion); Davis v. Management & Training Corp. Centers, 2001 WL 709380 (D. Kan. 2002) (unpublished opinion); and Strahley v. Mercy Health Center of Manhattan, 2000 WL 1745291 (D. Kan. 2000) (unpublished opinion). We find these decisions unpersuasive for two reasons.

First, all three decisions use the majority opinion in Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249 (1996), as their center of gravity. They do this because Kansas state law governs eviden-tiary questions in federal diversity cases when those questions are closely intertwined with a state’s substantive policy. Wildermuth, 2002 WL 922137, at *2 (agreeing that the collateral source doctrine is governed by Kansas law); Davis, 2001 WL 709380, at *2 (quoting Strahley and concurring that the collateral source doctrine is governed by Kansas law); and Strahley, 2000 WL 1745291, at *1 (stating: “Application of the collateral source doctrine, while an evi-dentiary rule, is closely tied to state substantive policy, and thus is *636governed by Kansas law.”)- As noted above, given the lack of controlling authority from this court, Bates was seen by these federal courts as the next best case, even though our decision in Rose I expressly limited that two-judge majority opinion. Second, and as our colleagues noted, those federal decisions inaccurately predicted how this court would analyze the collateral source rule questions presented because this court has now rejected the federal result.

As to Wildermuth specifically, we also note this court expressly l-ejects its conclusion that the cash amount paid to satisfy the medical bills should be deemed the reasonable value of those services. But in addition, we find Wildermuth’s reference to the Kansas collateral source rule as being limited to amounts actually paid on plaintiff s behalf ignores case law from this court dating back to 1906 applying the rule to gratuitous services benefiting plaintiff. See Lewark, 73 Kan. at 555-56. Accordingly, we find little in the federal case law referenced by our colleagues that informs our decision any better than a review of our court’s own case law as previously discussed.

Points of agreement with our colleagues

At this juncture, we think it is important to reflect on our points of agreement with our three colleagues before discussing in greater detail our disagreements. We believe our common ground can best be described as follows: (1) Plaintiff is entitled to the reasonable value of the medical services necessary for plaintiff s recovery; (2) Plaintiff is entitled to seek recovery for the reasonable value of medical services even when they are self-administered or gratuitously provided; (3) Defendant is entitled to challenge both the necessity and reasonable value of the expenses plaintiff claims; (4) Amounts billed by health care providers for plaintiffs medical treatment expenses are not conclusive as to their reasonable value, but are probative evidence as to value; and (5) The results reached in Bates, Fischer, and Liberty are wrong when those Court of Appeals panels held as a matter of law that the amount paid by Medicare, Medicaid, or private health insurers are the only measure of *637reasonable value for the medical care and treatment plaintiff received.

Our point of departure is the evidence our colleagues would authorize a defendant to use at trial in an effort to attack the reasonableness of plaintiff s claims for medical services. We discuss that departure next.

The Robinson approach from Ohio

Our colleagues distill from the case law and arguments a new course of action they impose for use by our trial courts grappling with this issue. They adopt the approach taken by an Ohio Supreme Court decision in Robinson v. Rates, 112 Ohio St. 3d 17, 857 N.E. 2d 1195 (2006). From Robinson, our colleagues find the trial court should continue to allow plaintiffs to introduce into evidence the actual billings for plaintiff s medical care, while defendants will be entitled to introduce the actual cash payments that satisfied the medical obligation as well as the write-offs or negotiated discounts. They believe it is best to simply allow the jury to make the reasonable value determination using this information. Any potential prejudice to plaintiff arising from implying the existence of insurance or another collateral source can be ameliorated, they argue, by having a vigilant trial court provide limiting instructions to the jury. This approach, they claim, is the “fairest.” We disagree.

By our count, 22 courts in other jurisdictions that have considered one or more aspects of our colleague’s approach have rejected it. See Aumand v. Dartmouth Hitchcock Medical Center, 611 F. Supp. 2d 78, 92 (D.N.H. 2009); Pipkins v. TA Operating Corp., 466 F. Supp. 2d 1255, 1261 (D.N.M. 2006); Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 207, 129 P.3d 487 (2006); Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 567-68, 976 S.W.2d 382 (1998); Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal. 3d 1, 9-10, 84 Ca. Rptr. 173, 465 P.2d 61 (1970); Tucker v. Volunteers of America Co. Branch, 211 P.3d 708, 713 (Colo. App. 2008); Mitchell v. Haldar, 883 A.2d 32, 40 (Del. 2005); Hardi v. Mezzanotte, 818 A.2d 974, 985 (D.C. App. 2003); Goble v. Frohman, 848 So. 2d 406, 410 (Fla. Dist. App. 2003), aff'd 901 So. 2d 830, 832-33 (Fla. 2005); Olariu v. Marrero, 248 Ga. App. 824, 825-26, 549 *638S.E.2d 121 (2001); Bynum v. Magno, 106 Hawaii 81, 89, 101 P.3d 1149 (2004); Wills v. Foster, 229 Ill. 2d 393, 418, 892 N.E.2d 1018 (2008); Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 683-84 (Ky. 2005); Bozeman v. State, 879 So. 2d 692, 705-06 (La. 2004); Lockshin v. Semsker, 412 Md. 257, 284-85, 987 A.2d 18 (2010); Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135, 1139-40 (Miss. 2002); Brown v. Van Noy, 879 S.W.2d 667, 676 (Mo. App. 1994); Covington v. George, 359 S.C. 100, 105, 597 S.E.2d 142 (2004); Papke v. Harbert, 738 N.W.2d 510, 536 (S.D. 2007); Texarkana Memorial Hosp., Inc. v. Murdock, 903 S.W.2d 868, 874 (Tex. App. 1995), rev'd on other grounds 946 S.W.2d 836 (Tex. 1997); Radvany v. Davis, 262 Va. 308, 310, 551 S.E.2d 347 (2001); and Leitinger v. DBart, Inc., 302 Wis. 2d 110, 135, 736 N.W.2d 1 (2007).

We also note with particular interest a recent opinion from the Ohio Court of Appeals that described its Supreme Court’s majority opinion in Robinson as a “perplexing decision” that “appears to both reaffirm the collateral-source rule in principle but eradicate it in practice.” Ross v. Nappier, 185 Ohio App. 3d 548, 559, 924 N.E.2d 916 (2009) (“Now, litigants are forced to navigate an uncertain and complex procedure when presented with a case where the injured party received collateral benefits from a third party.”).

We find the collective analysis recited in these cases persuasive and far more consistent with the long-standing principles this court has espoused to support the traditional collateral source rule. This is particularly true in the context of the case before us now in which the private insurance benefits at issue were purchased personally by the plaintiff, i.e. they were not a derivative of a regulated public assistance program like Medicare or Medicaid.

We would summarize our disagreements with the Robinson approach as follows: (1) its implementation is highly lilcely to generate jury confusion and mistrials; (2) the result discriminates against plaintiffs on the basis of whether they are insured; and (3) it contradicts the underlying principles of the collateral source rule by allowing defendants to benefit from the plaintiff s foresight or the kindness of others. We next address each of those disagreements.

*6391. Implementation problems

Our colleagues acknowledge the probability that presenting juries with collateral source evidence reflecting payments under an insurance policy will require trial court diligence and limiting instructions to prevent the jury from considering that plaintiff s insurance paid the medical bill when calculating damages. They suggest limiting instructions, such as those used in criminal cases under K.S.A. 60-455, may avoid prejudice, confusion, mistrials, and reversals. Our case law already foreshadows the difficulties such a system creates.

In Zak v. Riffel, 34 Kan. App. 2d 93, 115 P.3d 165 (2005), the Court of Appeals addressed a trial court’s failed attempt at a limiting instruction after the trial judge permitted collateral source evidence to be admitted to impeach an expert witness regarding his damages calculations. After admitting the evidence, the trial court admonished the juiy as follows:

“ ‘Members of the jury, these two exhibits that we have just been talking about ... were received in evidence by me earlier this afternoon for the limited purposes that I have talked about before. They are merely being introduced for the purpose of laying a foundation to determine some calculations that have been made by an expert witness who will testify tomorrow. They are not received for the purpose of presenting evidence to diminish the amount of economic loss, if any, that the plaintiff has suffered as a result of the defendant’s negligence.’ ” 34 Kan. App. 2d at 107-08.

The Court of Appeals reversed, saying: “The jury could only have been confused by the limiting instruction.” 34 Kan. App. 2d at 108. It found the evidentiary presentation insufficient to permit the jury to understand any purpose to the admission of the collateral source evidence, except for diminishing the plaintiff s recovery by making the jury aware of the insurance payment at issue.

Furthermore, admission of other crimes evidence has not proven to be a simple issue in criminal cases. The comments to PIK Crirn. 3d 52.06, the K.S.A. 60-455 limiting instruction, recognize other crimes evidence “has proven to be one of the most troublesome areas in the trial of a criminal case.” This is reflected by the volume of appeals filed each year on this issue. We find the suggestion that limiting instructions will cure whatever ills result from our col*640leagues’ approach is unfounded based upon the known complications demonstrated in our case law and the likelihood a jury will infer the existence of insurance.

As noted above, this court traditionally has viewed the injection of insurance coverage into a trial as highly prejudicial to the insured party. See Rose II, 279 Kan. at 529; Rose 1,276 Kan. at 544; Allman v. Holleman, 233 Kan. 781, 789, 667 P.2d 296 (1983); Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 355, 388 P.2d 832 (1964); Davis v. Kansas Electric Power Co., 159 Kan. 97, 109, 152 P.2d 806 (1944); Berry v. Dewey, 102 Kan. 593, 598, 172 P. 27 (1918); and Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906). This view has been advantageous for both defendants, whose insurance coverage will pay any adverse verdict, as well as plaintiffs, whose collateral source benefits from insurance are similarly shielded from the jury. Harrier v. Gendel, 242 Kan. 798, 801, 751 P.2d 1038 (1988). We agree with our sister jurisdictions that have considered the problem in the context presented here and believe the risk is simply too great that the jury will improperly subtract collateral payments from the plaintiff s recovery in violation of the collateral source rule. Aumand, 611 F. Supp. 2d at 91; Goble, 848 So. 2d at 410; Wills, 229 Ill. 2d at 418; Covington, 359 S.C. at 104-05; Leitinger, 302 Wis. 2d at 134-36.

We also are concerned that, in cases where the only evidence presented will be the original amount billed and the amount paid, juries will be lured into simply splitting the difference between those two points on the evidentiary continuum. In that likely occurrence, the verdict will have to be thrown out and a mistrial declared since there would be no evidence upon which the jury could have based its compromise verdict. See State ex rel. Stephan v. Wolfenbarger & McCulley P.A., 236 Kan. 183, 188, 690 P.2d 380 (1984) (holding that “ ‘[i]n order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the jury to arrive at an approximate estimate thereof ”) (quoting Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 [1974]).

We appreciate that defendants have long sought to be able to introduce collateral source evidence on any alternative basis in or*641der to do indirectly what they have not before been able to do directly. See, e.g., Zak, 34 Kan. App. 2d 93. We cannot help but think our colleagues’ approach is better seen as a solution looking for a problem to justify its existence. But it is a solution with a high risk factor for prejudice, mistrials, appeals, and delays in justice. Given that defendants have other evidentiary alternatives to present to the jury regarding health care provider discounts and the reasonable value of a plaintiff s medical care, we believe our adherence to existing collateral source case law is required.

2. Discrimination against insured plaintiffs

Our colleagues note their sensitivity to the prospects of discriminating between low income, public assistance plaintiffs, and private insureds under the so-called benefit-of-the-bargain approach, which has been used to justify the collateral source rule in other jurisdictions. But they do not address the obvious evidentiary schism generated by their approach between plaintiffs with private insurance benefits and uninsured plaintiffs.

As an example, assume we have two civil trials against the same defendant occurring across the hall from each other in any Kansas courthouse. Liability is admitted. Plaintiffs each suffered a broken leg. The issues in both cases are the reasonable value of the medical services provided to each plaintiff to heal the broken leg and plaintiff s noneconomic damages for pain and suffering. Each hospital billed $10,000 for those medical services. In the first courtroom, the plaintiff personally purchased for herself medical insurance. The insurance company settled the $10,000 billing for an actual cash payment of $1,000 and a negotiated write-off of $9,000. In the second courtroom, the plaintiff had no medical insurance, so there was no write-off.

Under our colleague’s approach, in the first courtroom, the jury would hear evidence of the $10,000 billing to the insured plaintiff, be told “the hospital will accept $1,000 to satisfy its bill of $10,000,” and some limiting instruction will be given that introduction of the $1,000 figure is not given to necessarily diminish plaintiff s none-conomic loss. Any attempt by the insured plaintiff to explain the compromised payment evidence will necessarily lead to disclosure *642of a collateral source. The jury will be asked to determine the “reasonable value” of the medical services necessary for plaintiff s recovery. The jury also will be asked to consider plaintiff s none-conomic damages for pain and suffering but will not be able to consider the $1,000 figure in its determination of noneconomic damages. The jury also will not be allowed to consider the existence of the plaintiff s insurance, even though that fact is obvious. A limiting jury instruction also will be added in an effort to address the potential for prejudice.

In the second courtroom, the uninsured plaintiff will have the jury consider the same legal questions but without the additional evidence about the $1,000 that would satisfy the hospital bill. The uninsured plaintiff s lawsuit also will have none of the complications or limitations outlined above for the insured plaintiff.

Common sense tells us the defendant is better off in the first courtroom against the insured plaintiff because there is a greater likelihood the uninsured plaintiff will obtain a higher jury verdict based on the original amount billed and a higher pain and suffering award. This result makes no sense. See Wentling v. Medical Anesthesia Services, 237 Kan. 503, 517, 701 P.2d 939 (1985). In the first courtroom, the tortfeasor benefits from the collateral source evidence, while in the second courtroom the same tortfeasor does not. As the Helfend court observed:

“If we were to permit a tortfeasor to mitigate damages with payments from plaintiff s insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.” 2 Cal. 3d at 10.

In Farley v. Engelken, 241 Kan. 663, 678, 740 P.2d 1058 (1987), this court decried a statute that altered the collateral source rule’s impact for some, but not all, tortfeasors and some, but not all, of their victims, as being devoid of a “legitimate legislative purpose.” Our colleagues fail to tell us what legitimate judicial purpose their preferred result serves, or why it should be imposed at this time when it has such an obviously disparate impact between those tort victims with insurance and those without.

*6433. Dismantles the principles underlying the rule

Finally, we need to mention how our colleagues’ approach fails to recognize and apply the long-standing rationales underlying the collateral source rule. As discussed above, the collateral source rule, as articulated by this court over many years, is solidly grounded in notions of equity, fairness, relevance, inherent prejudice to the plaintiff, as well as deterrence and accountability for tortfeasors. We fail to detect those principles in the alternative approach our colleagues now require.

We believe the law is unmistakable. The injured party’s damages are not to be diminished simply by the fact that he or she is indemnified for his or her loss by insurance. The more recent clouds of compromise and needless complexity reflected in some courts’ decisions weaken the bright clarity of this principle. This erosive process has now continued to the point where the underlying principle is becoming so fundamentally altered that the collateral source rule is compromised beyond useful applicability. As noted by the Ohio Court of Appeals, we fear our colleague’s Robinson-based approach will eradicate the collateral source rule in practice. Ross, 185 Ohio App. 3d at 562.

Conclusion

We agree with our colleagues that the district court erred in limiting plaintiffs recovery for medical expenses to only those amounts actually paid by plaintiff and her health insurance company. The district court’s ruling on the motion in limine must be reversed. We agree further that the result reached in Bates, Fischer, and Liberty is wrong. But on remand, we believe the district court in this case should be directed to return to the long-standing principles previously articulated by this court underlying the collateral source rule. This would preclude the specific admission of the amount paid to satisfy the medical bills as a collateral source benefit, which would eliminate the need for any limiting instructions and the likelihood for jury confusion or misconduct on this highly prejudicial subject matter.

We concur in the result, which reverses the district court’s ruling on the motion in limine. We dissent from the majority’s adoption *644of the Robinson-based approach for the admission of evidence regarding the amounts actually paid and the provider write-offs, as explained above.