Home/Court of Appeals of Texas/Karen Gore v. Jainaba Faye

Karen Gore v. Jainaba Faye

CourtCourt of Appeals of Texas
DecidedJanuary 14, 2008
Docket07-06-00218-CV
StatusPublished

This text of Karen Gore v. Jainaba Faye (Karen Gore v. Jainaba Faye) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karen Gore v. Jainaba Faye, (Tex. Ct. App. 2008).

Opinion

NO. 07-06-0218-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL B


JANUARY 14, 2008

______________________________


KAREN GORE, APPELLANT


V.


JAINABA FAYE, APPELLEE

_________________________________


FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;


NO. 2004-527,298; HONORABLE WILLIAM SOWDER, JUDGE

_______________________________



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

          Appellant Karen Gore appeals from a judgment in favor of appellee Jainaba Faye following a jury trial in a personal injury suit. Gore contends on appeal the trial court was required by section 41.0105 of the Texas Civil Practice & Remedies Code to allow evidence before the jury of payments and discounts applied on Faye’s medical bills, and erred by keeping this evidence from the jury. Finding no abuse of discretion in the court’s action, we affirm.

Background

          Faye and Gore were the drivers of vehicles that collided in Lubbock, Texas. Seeking recovery for her personal injuries, and alleging Gore’s negligence proximately caused her injuries, Faye brought suit against Gore.

          In her amended answer to Faye’s suit, Gore plead that, pursuant to section 41.0105, Faye’s recovery for medical expenses was limited to the amounts of reasonable and necessary medical expenses “which were paid and accepted rather than the total of the charged medical expenses.” Alternatively, Gore plead, she was entitled to a credit against any medical expense damage award for amounts “not charged to [Faye], amounts written off or discounted, or, in any event, in an amount equal to the difference between the total charges and the sum which was paid and accepted as payment in full.” Gore made the same allegations in a separate paragraph of her answer addressed “to the Court only.”

          At trial, Faye presented, without objection, evidence of the amounts charged by four healthcare providers for treatment of her injuries. The evidence was in the form of statutory affidavits that included opinions the services were necessary and the charges reasonable, and included itemized statements from the providers. The four providers, their charges and services were University Medical Center (UMC), $573.80 for ambulance services; Covenant Health System (Covenant), $2,690.30 for emergency medical treatment; Lubbock Diagnostic Radiology, L.L.P., (Lubbock Radiology), $248.00 for x-ray and diagnostic services; and Merritt Chiropractic, P.C. (Merritt), $4,574.00 for chiropractic treatment.

          The itemized statement attached to the affidavit of Covenant’s custodian of records was redacted to obscure entries reflecting a discount of $2190.30 and a payment of $400.00 against the initial $2690.30 charge, and to obscure an entry showing the resulting “ofc balance” of $100.00. The statement attached to the affidavit from Lubbock Radiology similarly was redacted to obscure entries showing an “adjustment” of $146.94 and a payment credit of $101.46. As redacted, the statements showed the jury only the total initial charges. The statements of UMC and Merritt contained no payment credits or discounts.

          The record indicates that, before and during trial, the parties and the court were conscious of and concerned with the requirements of section 41.0105, and suggests that the means of implementation of the statute were discussed with the court off the record. At a point during Faye’s case in chief, the court conducted an off-the-record bench conference. It then excused the jury, and Gore requested and was allowed to make an offer of proof concerning the payments and discounts applied to the Covenant and Lubbock Radiology charges.

          Gore’s counsel explained the purpose of the offer of proof: “if the court does not allow the testimony into evidence in front of the jury, I would like to at least present it now for the court to consider after the verdict and before a judgment is entered.” The court discerned the basis of the offer was: “due to some kind of contract or an agreement with a health care provider that what was actually accepted in full is less than what was charged Plaintiff; is that correct?” Gore’s counsel agreed with this assessment.

          Gore then called the records custodians for Covenant and Lubbock Radiology as witnesses for the offer of proof. Each testified that Faye’s charges were discounted pursuant to a contract between the provider and Faye’s health insurance company FirstCare. Through these witnesses, Gore offered unredacted copies of the previously admitted affidavits of services and charges of Covenant and Lubbock Radiology.

          At the conclusion of the offer of proof, the court restated Gore’s position: “And then he is making a motion to offer the testimony of [the records custodians] in front of the jury.” On the court’s request for a response, Faye’s counsel voiced an objection to the testimony of the records custodians before the jury. The court then ruled:

The court is going to sustain her objection and overrule you, preventing you from putting this in front of the jury. And the court’s of the opinion, at this time, until further guidance is given the court, that it is a post-verdict pre-judgment matter. And so the offer of proof will stand but I will not allow that testimony in front of the jury.

 

          The following exchange then occurred:

[Gore’s counsel]: “Okay. And, Your Honor, in the alternative then, we would ask the court to consider the testimony post-verdict pre-judgment.”

[The Court]: “Yes, we will do that.”

          * * *

[Faye’s counsel]: “And, Your Honor, for clarification, defense exhibits–I don’t remember the numbers, but those include information regarding adjustments, will not be presented to the jury?

[The Court]: “That’s right. That is just for the Judge before he prepares–executes a judgment.”

          

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Bluebook (online)
Karen Gore v. Jainaba Faye, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karen-gore-v-jainaba-faye-texapp-2008.