Martinez v. MILBURN ENTERPRISES, INC.

233 P.3d 205, 290 Kan. 572, 2010 Kan. LEXIS 419

• Court: Supreme Court of Kansas
• Decided: June 4, 2010
• Docket: 100,865
• Status: Published

Opinions

The opinion of the court was delivered by

Nuss, J.:

This civil interlocutory appeal concerns the possible application of the collateral source rule to medical bill write-offs.

Facts and Holding

The essential facts are straightforward. On July 23,2005, plaintiff Karen Martinez slipped and fell while shopping at defendant’s business in Lyons, Kansas. She underwent back surgery at Wesley Medical Center and was ultimately billed $70,496.15. The hospital accepted $5,310 in satisfaction of the bill: $4,689 from plaintiff s private health insurance company, Coventry Health Systems (Coventry), and $621 from plaintiff as her deductible and co-pay. Pursuant to its contract with Coventry, the hospital wrote off the balance of $65,186.15.

In plaintiff s suit for recovery of damages, defendant filed a motion in limine asking the district court to prohibit plaintiff from claiming the full $70,496.15 as damages. The defendant apparently erred in its recitation of the specific amounts paid by each source to satisfy the bill, as well as the total amount paid to the hospital. Those errors apparently were repeated by plaintiff and the district court and by the parties in their briefs to this court. The facts and resultant parties’ arguments in this opinion have been modified to conform with the amounts stated in Coventry’s Explanation of Benefits, which was attached to defendant’s motion.

The court granted defendant’s motion, limiting plaintiff s recovery to those amounts actually paid by Coventry and plaintiff ($5,310) and preventing her from submitting evidence of medical expenses in excess of that amount. The court made the findings required by K.S.A. 60-2102(c) for an interlocutory appeal, and the Court of Appeals granted plaintiff s application. We transferred the case on our own motion pursuant to K.S.A. 20-3018(c).

The issue on appeal is whether in a case involving private health insurance write-offs, the collateral source rule applies to bar evidence of (1) the amount originally billed for medical treatment or (2) the reduced amount accepted by the medical provider in full satisfaction of the amount billed, regardless of the source of payment. We hold that the rule does not bar either type of evidence; both are relevant to prove the reasonable value of the medical treatment, which is a question for the finder of fact. Accordingly, we reverse and remand to the district court for further proceedings.

Analysis

Collateral source rule and the parties’ arguments

Our analysis starts with this court’s past description of the collateral source rale as follows:

“ ‘At common law, the collateral source rule prevented the jury from hearing evidence of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence upon which the personal injury action is based. The court has stated the rule as follows: “Under the ‘collateral source rule,’ benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ ” (Emphasis added.) Rose v. Via Christi Health System, Inc., 279 Kan. 523, 529, 113 P.3d 241 (2005) (Rose II) (quoting Farley v. Engelken, 241 Kan. 663, Syl. ¶ 1, 740 P.2d 1058 [1987]; Thompson v. KFB Ins. Co., 252 Kan. 1010, 1014, 850 P.2d 773 [1993]).

After a lengthy recitation of the Kansas appellate court decisions on the collateral source rale, plaintiff contends they create the following standard: “[W]hen an injured person has negotiated for, paid for or contributed in kind for a benefit that reduces his obligation to pay for injuries caused by a tortfeasor, that benefit should not be used to reward the tortfeasor or anyone responsible for his debt.” Consequently, she argues that the district court failed to apply the collateral source rale and, as a result, $65,186.15 of the original hospital bill, $70,496.15, would be incorrectly withheld from the jury’s consideration of her damages.

In holding that the collateral source rale is inapplicable to the $65,186.15 write-off, the district court explained:

“The court finds the Collateral Source Rule is inapplicable in this case as that is set forth in Bates v. Hogg, 22 Kan. App. 2d 705 (1996). The court finds this is a pretrial declaration of law that the plaintiff s recovery should be limited to the amount actually paid by the private insurance company. The court finds the proper measure of damages for medical expenses under these facts and circumstances is the actual ainount paid by the plaintiffs own private insurance company ... .To allow for the write-off amount is a misleading piece of evidence that did not actually occur as damage to the plaintiff. The evidence is the plaintiff cannot and will not be held responsible for the write-off, pursuant to the contract between the hospital and her own private insurance company. Therefore, only her actual medical damage is [$5,310].... To require the defendant to pay for some amount that was not paid would be giving the plaintiff the benefit of receiving more than their actual damages that is actually needed to reimburse the plaintiff to be made whole.” (Emphasis added.)

As the holding indicates, the court initially ruled that only the amount paid by plaintiffs insurance carrier ($4,689) could be recovered. But it later clarified that her actual medical damages, i.e., the amount recoverable, was $5,310, which included plaintiff s own payments of $621.

Defendant responds to plaintiffs position with three main points. First, defendant argues that the doctrine of restoration is fair and “[Requiring defendants to pay more than the amount necessary to satisfy the financial obligation... violates... fundamental fairness.” Second, it points out that under its theory, plaintiff would not be made “less than whole.” Finally, elaborating upon the district court’s decision, defendant argues that plaintiff is only entitled to recover the “reasonable value” of her medical care and expenses. Defendant contends that the reasonable value is necessarily the “agreed upon” value, i.e., the $5,310 offered by plaintiff and her carrier and accepted by the hospital in satisfaction of the bill. See, e.g., Bates v. Hogg, 22 Kan. App. 2d 705, Syl. ¶ 3, 921 P.3d 249 (1996) (person who suffers personal injuries because of negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries); PIK Civ. 4th 171.02.

Amicus Curiae — Kansas Association for Justice

Kansas Association for Justice (KsAJ) argues that write-offs and write-downs are collateral source benefits. Like plaintiff, it contends that if a plaintiff has contributed to or bargained for something, then benefits should not be considered in the damage award. KsAJ posits that courts have “concluded nearly uniformly” that write-offs are collateral benefits negotiated for or purchased from an independent third party. It argues against a strict application of the restoration doctrine as encouraged by defendant.

KsAJ relies heavily upon the principles of the collateral source rule as provided in the Restatement (Second) of Torts (1977): (1) deterrence, (2) compensation, and (3) determining wrongful conduct. See, e.g., Section 920A(2) (“Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is hable.”) It contends that these principles were not intended to be oppositional but collaborative. Finally, KsAJ takes exception to the suggestion that plaintiffs receive a windfall under the collateral source rule; it suggests they instead obtain a “consequential benefit.”

Amicus Curiae Kansas Association of Defense Counsel

Kansas Association of Defense Counsel (KADC) fleshes out the defendant’s argument that simply restoring a plaintiff to his or her preinjury status is fair. KADC acknowledges Section 920A of the Restatement and how it effectively bars any argument that plaintiff s damages should be reduced by the $4,689 paid by Coventry to the hospital on her behalf. It argues, however, that the real issue before us is the value of plaintiff s medical expenses. It cites comment h of Restatement (Second) of Torts § 911 in support of its position that the appropriate compensation for injured plaintiff is the amount actually paid on the bill: here, $5,310. That comment states:

“When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.”

KADC next argues that plaintiff s benefit of the bargain concept does not apply to write-offs because the plaintiff plays no role in the bargaining process. It contends that a consumer who contracts for health insurance seeks only to have the insurance carrier bear the brunt of the consumer s medical expenses, whatever they turn out to be. According to KADC, an insurance carrier s ability to negotiate with medical providers to reduce the amount the carrier is required to pay, in order to satisfy its obligation to the consumer, is a benefit to the carrier — not the consumer.

KADC also points out that the basic principle of damages is to malee the plaintiff whole, not to grant a windfall. It observes that the collateral source rule itself operates as an exception to that basic principle, since it allows an injured party to recover damages which the party itself did not pay. According to KADC, however, allowing the plaintiff to recover not only the expenses paid by other sources but also expenses not paid by any source, amounts to a “super-windfall” for which there is no public policy justification.

KADC further takes exception to the suggestion that limiting the tortfeasor a windfall. It contends that the tortfeasor is still responsible for the entire amount of the plaintiff s medical expenses paid — whether or not these expenses were actually paid by the plaintiff, e.g., through private insurance. KADC argues that this result is fair because the amount originally billed by the medical provider is an inflated rate, not the reasonable value of services.

Finally, KADC argues that if the “sticker price” — the original amount billed — is admitted into evidence, then the amount actually paid to satisfy that bill should also be admitted. It contends that only then would the jury be able to determine the reasonable value of the services provided.

Standard of Review

This court generally reviews the granting of a motion in limine for abuse of discretion. See State v. Morton, 283 Kan. 464, 473, 153 P.3d 532 (2007). However, “ ‘[t]he abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Griffin v. Suzuki Motor Corp., 280 Kan. 447, 452, 124 P.3d 57 (2005) (citing Koon v. United States, 518 U.S. 81, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). Here, the district court made “a pretrial declaration of law that the plaintiff s recovery should be limited to the amount actually paid by the private insurance company.” Moreover, this issue arrives via interlocutory appeal because the district court found there was a controlling legal issue requiring decision by the appellate courts. Consequently, this court is asked to determine whether the district court’s ruling was guided by erroneous legal conclusions and a de novo standard applies. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).

To better understand how the collateral source rule should be applied, if at all, under the circumstances of this case, we need to review the case law on the interplay of the rule with write-offs in Kansas.

Bates v. Hogg

Kansas appellate courts first considered the applicability of the collateral source rule to write-offs in Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996). Hogg’s pickup struck Bates’ vehicle and injured Bates. Hogg filed a motion in limine to limit Bates’ evidence of economic damages to the amount actually paid by Medicaid to medical care providers on her behalf. The district court granted the motion and prohibited Bates from presenting evidence of the market value or list price of her medical treatment. 22 Kan. App. 2d at 703.

The question presented in Bates was the same one presented in the instant case except that the write-off was pursuant to a Medicaid contract rather than a private insurance agreement. The Court of Appeals panel first pointed out that the “ ‘purpose of awarding damages is to make a party whole by restoring that party to the position he [or she] was in prior to the injury.’ ” 22 Kan. App. 2d at 704 (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 [1990], overruled in part on other grounds 248 Kan. 824, 844, 811 P.2d 1176 [1991]). It then explained the reasonable value of the medical cost of restoration:

“The fundamental principle of the law of damages is that a person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries, as well as the cost of those reasonably certain to be incurred in the future.” (Emphasis added.) 22 Kan. App. 2d at 704 (citing 22 Am. Jur. 2d, Damages § 197, p. 169).

The Bates panel concluded that the collateral source rule simply was not applicable to its facts. It reasoned that because medical providers, by agreement and contract, may not charge Medicaid patients for the difference between their “normal” charges and the amount actually paid by Medicaid, then “the amount allowed by Medicaid becomes the amount due and is the ‘customary charge’ under the circumstances.” Bates, 22 Kan. App. 2d at 705. The panel further agreed with the taxpayer-based public policy rationale of a North Carolina federal court:

“ ‘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 die windfall.’ ” 22 Kan. App. 2d at 706 (quoting Gordon v. Forsythe County Hospital Authority, Inc., 409 F. Supp. 708, 719 (M.D.N.C. 1976).

In effect, the Bates panel endorsed limited application of the collateral source rule. Plaintiff was allowed to seek recovery of damages for the amount of medical expenses that was actually paid by a nonwrongdoer, i.e., from a source “collateral” to the wrongdoer. Plaintiff was not allowed, however, to seek recovery of damages for the amount written off because it was paid by no one.

Judge, now Chief Judge, Rulon dissented, opining that a plaintiff should be allowed to recover the reasonable value of medical services rendered to treat an injury regardless of what amount was actually paid. 22 Kan. App. 2d at 709-10.

Rose I

This court first examined the interplay between write-offs and the collateral source rule in Rose v. Via Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003) (Rose I). In Rose I, the executor of Rose’s estate brought a negligence action against Via Christi after Rose died as a result of injuries sustained from falling out of his hospital bed. After a judgment for the executor, the hospital moved to offset the judgment by the amount of medical expenses it wrote off for Rose pursuant to its contract with Medicare.

The Rose I court concluded that the federal Medicare statute, 42 U.S.C. § 1395cc(a)(1)(A)(i) (2000), was in direct conflict with the district court’s decision in granting Via Christi’s motion to offset the written-off medical expenses. It further concluded that the Medicare statute preempted the district court’s ruling. 276 Kan. at 543-44.

The court then considered the hospital’s cross-appeal, in which it argued that the district court should have limited the evidence of plaintiff s medical expenses to those amounts actually paid and not include the amounts it wrote off. 276 Kan. at 544. The court focused on the rationale in Judge Rulon’s dissent in Bates which stated:

“The purpose for the collateral source rule is to prevent the tortfeasor from escaping the full liability resulting from his or her actions by requiring the tort-feasor to compensate the injured party for all of the harm he or she causes, not just the injured party’s net loss.).” Rose I, 276 Kan. at 544 (citing Bates v. Hogg, 22 Kan. App. 2d 702, 709, 921 P.2d 249, rev. denied 260 Kan. 991 [1996] [dissenting opinion citing 2 Minzer, Nates, Kimball, Axelrod, and Goldstein, Damages in Tort Actions § 9.60, p. 9-88 (1991); Restatement (Second) Torts § 920A, comment b (1977)]).

The Rose I court then ruled that Bates’ holding was limited to cases involving Medicaid. 276 Kan. at 546. The court distinguished Medicare and Medicaid cases on the basis of the recipient’s contribution for Medicare coverage, finding Medicare to be akin to private insurance. 276 Kan. at 551. It found persuasive those courts applying the collateral source rule to amounts written off due to private insurance. 276 Kan. at 551; see, e.g., Koffman v. Leichtfuss, 246 Wis. 2d 31, 630 N.W.2d 201 (2001). It additionally relied upon the court decisions from the three jurisdictions that had addressed the issue and had unanimously concluded that the collateral source rule also applies to Medicare write-offs. Rose I, 276 Kan. at 546-47 (citing Candler Hosp. v. Dent, 228 Ga. App. 421, 491 S.E.2d 868 [1997]; Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135, 1140 [Miss. 2002]; Brown v. Van Noy, 879 S.W.2d 667 [Mo. App. 1994]). Simply put, an injured plaintiff could seek recovery as damages for amounts written off by health care providers, i.e., amounts not paid by Medicare on plaintiff s behalf.

The Rose I court looked to other jurisdictions because it found a Kansas case cited by the hospital to be inapposite. In Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997), a jury awarded plaintiff damages for his personal injuries after his girlfriend cut his throat while he was handcuffed and sitting on a curb in police custody. The Rose I court rejected the hospital’s argument that Jackson stood for the proposition that a plaintiffs recovery should not include write-offs but should be limited to the amount actually paid:

“Jackson, however, does not support this contention. In Jackson, the defendant sought to have die damage award for medical expenses reduced to the amount that had actually been paid by the plaintiff and a charity on Iris behalf. Finding no evidence to support the defendant’s request for remittitur, the Jackson court refused to reduce the plaintiff s damage award. 263 Kan. at 151-52, 947 P.2d 31. However, the Jackson court did not address the application of the collateral source rule, so it is inapposite to the issue in this case.” 276 Kan. at 546.

The Rose I court appeared to acknowledge that its ruling would result in a windfall for plaintiffs. It held:

“Public policy in Kansas supports the theory that any windfall from the injured party’s collateral sources should benefit the injured party rather than the tortfea-sor, who should bear the full liability of his or her tortious actions without regard to the injured parties’ method of financing his or her medical treatment.” 276 Kan. at 551.

In short, given the court’s reliance upon case law holding that write-offs pursuant to private insurance and write-offs pursuant to Medicare were all covered by the collateral source rule, to date arguably only the Medicaid write-offs from Bates v. Hogg were excluded from possible recovery by injured plaintiffs.

Justice Luckert wrote for the dissent, arguing that applying the collateral source rule to “this portion of the judgment is contrary to the basic precept of the collateral source rule which is that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” 276 Kan. at 552. She pointed out that the hospital was both the “wrongdoer” and the entity writing off charges, i.e., not a source wholly independent of the wrongdoer. 276 Kan. at 552.

Fischer & Liberty

This court granted a motion for rehearing in Rose I. Before release of our modified opinion in June 2005, earlier that year one panel of the Court of Appeals released two unpublished opinions dealing with the possible applicability of the collateral source rule to write-offs. The decisions essentially excluded recovery for write-offs in the contexts of both Medicare (contrary to Rose I) and private insurance.

First, in Fischer v. Farmers Ins. Co., No. 90,246, unpublished opinion filed February 18, 2005, the plaintiff was injured when her automobile was struck by a pickup. She settled with the defendant’s insurance company and sought recovery under her own policy s underinsured motorist coverage. Her insurer filed a motion in lim-ine to exclude evidence of that portion of Fischer’s medical expenses that had been written off by the medical provider pursuant to an agreement with Fischer’s own group health insurance carrier.

The trial court relied upon Bates to exclude the amount of the write-off from plaintiffs damages. The Court of Appeals panel agreed that the Bates majority holding “was not principally driven by the fact that the write-off was mandated by a Medicaid contract.” Fischer, slip op. at 4. It emphasized the doctrine of restoration, explaining that when the plaintiff is awarded damages equal to the amount actually paid to his or her health care provider pursuant to an agreement, the plaintiff is then restored to his or her exact economic preinjury status. While the plaintiff would not be able to pocket the write-off amount, neither would he or she owe anything for medical services. Fischer, slip op. at 2. The panel explained that this solution results in restoration and equal treatment for all plaintiffs:

“The principle of restoration should be applicable to all plaintiffs, regardless of whether they be uninsured, covered by Medicaid, covered by Medicare, covered by an employer’s group health policy, or covered by an individually purchased private insurance contract.... In short, applying Bates to all plaintiffs effects their restoration to pre-accident status without arbitrarily overcompensating some injured persons.” Fischer, slip op. at 5.

The Fischer panel inteipreted the Bates holding to mean that while the amount a plaintiff s health insurer actually pays to the health care provider is a benefit from a collateral source, the amount the provider writes off is not. Accordingly, like the Bates court, it held that the collateral source rule was “ ‘not applicable under these circumstances/ ” Fischer, slip op. at 8.

The Fischer panel also explained that the idea that a plaintiff should receive a windfall so that the tortfeasor can be held fully hable is fiction:

“The sentiment that public policy dictates giving a plaintiff a windfall in order to hold the tortfeasor fully hable for his or her tortious conduct is, in practice, an illusion. In most cases, a tortfeasor pays nothing personally; the plaintiff s judgment is paid by a liability insurance carrier. If the wrongdoer’s bodily injury liability insurance limits are inadequate to cover the plaintiff s injuries, it is common for the tortfeasor to confess judgment in return for a covenant not to execute. On other occasions, a tortfeasor discharges an excess judgment in bankruptcy.” Fischer, slip op. at 12.

The panel not only concluded that the collateral source rule was inapplicable to write-offs but also that the amount the provider agreed to satisfy its bill conclusively established the reasonable value of the services:

“In summary, we hold that the amount which a health care provider has, in advance, agreed to accept in full satisfaction for services rendered to a plaintiff is the measure of the reasonable value of medical care and expenses for the treatment of the plaintiffs injuries. Previously established nonrecourse discounts by health care providers are not a collateral source benefit within the ambit of tire collateral source rule.” (Emphasis added.) Fischer, slip op. at 13.

It then logically followed that “[t]he plaintiff cannot introduce evidence of the amount of the nonrecourse discounts as part of the plaintiff s economic damages.” Fischer, slip op. at 13.

In effect, Fischer extended the Bates holding and rationale— refusing to apply the collateral source rule to Medicaid write-offs by medical care providers — to private insurance write-offs by providers. And as in Bates, the rule still had some limited application: plaintiff could seek recovery of damages for the amount of medical expenses that was actually paid by a nonwrongdoer, i.e., plaintiff s carrier. Moreover, Fischer more clearly articulated the rule inherent in Bates’ result: the paid amount is “the measure of the reasonable value of medical care and expenses for the treatment of the plaintiffs injuries.”

Two months later, the same panel released Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005, rev. denied 280 Kan. 983 (2005). There, the plaintiff fell and sustained injuries in defendant’s business. Plaintiff challenged the district court’s order in limine, based upon its interpretation of Bates, which excluded evidence of the portion of her medical expenses, which the health care providers wrote off pursuant to their contracts with Medicare. The Liberty panel then extended the Bates holding and rationale — refusing to apply the collateral source rule to Medicaid write-offs by medical care providers — to Medicare write-offs by providers. This extension was contrary to our holding in Rose I, which was awaiting rehearing.

The Liberty panel explained that, for several reasons, applying the collateral source rule to write-offs in Medicare scenarios made little sense:

“The application of that rule to mandatory Medicare discounts requires a great deal of creativity. First, one must perceive that the nonconsensual, involuntary deductions from a person’s wages to fund the federally mandated Medicare program are akin to the premiums paid by the fiscally prudent and relatively affluent purchaser of private insurance. More importantly, however, one must fictionally characterize the mandatory contractual discount for Medicare patients as a ‘payment’ of medical expenses. The write-off is a volume discount allowed by medical care providers who want to tap into the pool of Medicare patients. No one is paid the discount, hut rather the discounted cost of services assists in keeping the amount that must be deducted from one’s paycheck at a manageable level.” (Emphasis added.) Slip op. at 13.

As the panel had done in Fischer, it also addressed the windfall argument in Liberty:

“Finally, the rationale of giving the injured person a windfall in order to avoid allowing the tortfeasor to reap a windfall simply ignores reality. One can perceive that in the vast majority of cases, the ‘windfall’ [to the plaintiff] is funded by a [defendant’s] liability insurance carrier, not the tortfeasor personally. The tortfea-sor is not taught a lesson via his or her pocketbook, but rather the rest of us must share the cost of the windfall through higher liability premiums.” (Emphasis added.) Slip op. at 13.

Where the panel in Fischer only suggested, in Liberty it now stated directly: “[T]he issue presented is not the applicability of the collateral source rule, but rather the reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’” (Emphasis added.) Liberty, slip op. at 13. Relying upon Bates, the Liberty panel held that the amount permitted to be charged to Medicare patients, i.e., the amount remaining after the write-off, is the “customary charge” for their medical treatment. Accordingly, the Liberty panel, as it did in Fischer, held that this reduced amount conclusively established the “reasonable value” of plaintiffs medical care and expenses. Liberty, slip op. at 13. As a result, the panel affirmed the trial court’s exclusion from evidence that portion of the plaintiff s medical expenses which the health care providers wrote off pursuant to their contracts with Medicare.

Rose II

At the same time the Court of Appeals panel was considering Fischer and Liberty, this court reheard arguments in Rose I—Rose v. Via Christi Health System, Inc., 279 Kan. 523, 113 P.3d 241 (2005) (Rose II). In our decision released 5 weeks after Liberty, this court limited its ruling to the specific facts of that case, i.e., where the tortfeasor was also the entity writing off its own charges for medical services. 279 Kan. at 529. As the court explained its holding:

“Thus, we conclude that under the facts of this case, specifically where the Medicare provider, Via Christi, is the defendant and also the health care provider of the services which form the basis of the economic damages claim, the trial court did not err in allowing a setoff or credit against the portion of the economic loss attributable to medical expenses in the amount of the Medicare write-off, an amount not paid by the plaintiff, Medicare, or any third party, and which reflected a cost incurred by the defendant. The trial court’s ruling is a correct application of Kansas law . . . .” (Emphasis added.) 279 Kan. at 533.

Because this court upheld the trial court’s decision to allow a setoff or credit, it did not reach the cross-appeal question. That question was “whether evidence of medical charges that are written off by a health care provider pursuant to a contract with Medicare is admissible at trial as evidence of economic damages.” 279 Kan. at 533-34. The court explained that it therefore did not reach the broader issue (answered by the Court of Appeals in Liberty 5 weeks earlier) of “whether Medicare, or a Medicare write-off, when the services are provided by a health care provider that is not a defendant, is a collateral source.” (Emphasis added.) Rose II, 279 Kan. at 534.

Adamson v. Bicknell

Most recently, the Court of Appeals considered the collateral source rule and write-offs in Adamson v. Bicknell, 41 Kan App. 2d 958, 207 P.3d 265 (2009), rev. granted March 31, 2010. There, the panel noted that pursuant to Bates, “evidence of medical expenses written off pursuant to Medicaid requirements must be excluded from evidence.” Adamson, 41 Kan. App. 2d at 970. Accordingly, the panel reversed the trial court and ¿lowed the introduction of these write-offs at retrial because they were “within the scope of the collateral source rule.” Adamson, 41 Kan. App. 2d at 973.

Recent Kansas case law, i.e., from Bates to date, is therefore synthesized chronologically as follows:

1. Medicaid write-offs are not covered by the collateral source rule per Bates;

2. Medicare write-offs are covered by the collateral source rule per Rose I;

3. Private insurance write-offs are not covered by the collateral source rule per Fischer;

4. Medicare write-offs are not covered by the collateral source rule per Liberty (contraiy to Bose I); and

5. Whether Medicare write-offs are covered by the collateral source rule is intentionally left unaddressed by the Supreme Court per Rose II.

Related case law from the Court of Appeals is further synthesized as follows:

Because write-offs by health care providers are not a collateral source benefit within the ambit of the collateral source rule, the issue regarding these write-offs instead becomes their possible relevance to the “reasonable value of medical care and expenses for the treatment of the victim’s injuries.” Liberty, slip op. at 13. And the amount which a health care provider has agreed to accept in full satisfaction for services rendered in treatment of the plaintiff s injuries conclusively establishes the reasonable measure of those medical care and expenses. Fischer, slip op at 13; Liberty, slip op. at 14. As a result, the plaintiff cannot introduce evidence of the amount of the nonrecourse discounts, i.e., write-offs, as part of the plaintiffs economic damages. Fischer, slip op. at 13.

Federal cases

The federal district courts in Kansas have uniformly held that the collateral source rule does not apply to write-offs by health care providers — whether via Medicaid as in Bates, via Medicare as in Liberty (contrary to Rose I), or via private insurance as in Fischer. Like Liberty and Fischer, the opinions are all unpublished.

In Strahley v. Mercy Health Center of Manhattan, 2000 WL 1745291 (D. Kan. 2000) (unpublished opinion), Judge Vratil adopted the Medicaid-based rationale in Bates and, like Fischer, extended it to private insurance write-offs by health care providers. She held: “Although Bates addressed only a Medicaid write-off, the same reasoning applies to amounts written off in conjunction with private health care insurance. No one, including plaintiffs, is hable for the amount of the write-offs. Therefore, they do not represent actual losses.” Strahley, 2000 WL 1745291, at “2 (citing McAmis v. Wallace, 980 F. Supp. 181, 184 [W.D. Va. 1997]).

Judge Vratil quoted with approval Mitchell v. Hayes, 72 F. Supp. 2d 635, 637 (W.D. Va. 1999):

“ ‘Discounting is a reality of modem medical economics and it does no violence to the collateral source doctrine to bring the tort compensation system the same extended savings. By allowing the plaintiff to show the discounted medical expenses as evidence of his damages, even though he paid no part of them, but refusing any evidence of the write-offs that no one incurred, there is a proper balance of the competing interests at issue.’ ” Strahley, 2000 WL 1745291, at *2.

One year later, in Davis v. Management & Training Corp. Centers, 2001 WL 709380 (D. Kan. 2002) (unpublished opinion), Judge Rogers faced a factual situation similar to Bates. Medicaid paid part of plaintiffs medical expenses, and the remainder was written off per an agreement between Medicaid and the health care providers. Relying upon Bates and Judge Vratil’s Strahley decision, the defendant argued that the plaintiff s claim was limited to the portion actually paid by Medicaid. After acknowledging the collateral source rule, Judge Rogers decided to follow these authorities, holding that “[sjince plaintiff is not liable for the amount of write-offs, we do not find that the plaintiff has suffered actual losses. Accordingly, the court shall preclude any evidence of any amount of the plaintiffs medical bills that represent write-offs.” Davis, 2001 WL 709380, at *3.

Finally, 1 year after Davis, in Wildermuth v. Staton, 2002 WL 922137 (D. Kan. 2002) (unpublished opinion), Magistrate Judge Waxse reviewed defendant’s argument that the collateral source rule did not apply to tire amounts written off by health insurance carriers after payment by Medicare. He rejected the plaintiffs counterarguments for admission of the write-offs as evidence of damages because they were required by federal law:

“First, the write-offs were not a benefit that Plaintiff s were personally responsible for obtaining or that they individually bargained for. Rather, the write-offs are required by operation of federal law.” 2002 WL 922137, at "5.

He further rejected the plaintiff s arguments for admission of the write-offs as evidence of damages because the collateral source rule does not apply to write-offs of expenses that are never paid:

“Second, the Court sees no reason to distinguish between the type of benefits received. What is at issue is the write-off and not the Medicare payments itself. It does not matter whether the benefits received are from the Medicaid or Medicare programthe collateral source rule, by its express terms, simply does not apply to write-offs of expenses that are never paid. The collateral source rule only excludes ‘evidence of benefits paid by a collateral source.’ Wendtling v. Medical Anesthesia Servs., 237 Kan. 505, 515, 701 P.2d 939 (1985) (emphasis added). Because a write-off is never paid, it cannot possibly constitute payment of any benefit from a collateral source. [Citation omitted.]” Wildermuth, 2002 WL 922137, at “5.

Judge Waxse also addressed the windfall arguments:

“Moreover, as the Kansas Court of Appeals noted in Bates, allowing a plaintiff to recover the amount of charges written off would result in a windfall to the plaintiff. Permitting Plaintiffs in this case to enter into evidence medical bills for which neither Plaintiffs nor collateral source had any responsibility to pay and allowing Plaintiffs to recover that amount does not further the purpose of the collateral source rule. The rule is intended to prevent a defendant tortfeasor from escaping from full liability for the consequences of his or her wrongdoing and to prevent a windfall to the tortfeasor, who would otherwise profit from the benefits provided by a third party to the injured party. It is not intended to provide a tmndfall to plaintiffs. As the Kansas Supreme Court has noted, ‘the basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall.’ [Citation omitted.]” (Emphasis added.) Wildermuth, 2002 WL 922137, at *5.

Judge Waxse expressly rejected plaintiff s additional argument that Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), was inconsistent with the policies supporting the collateral source rule. He found that the Bates rule was entirely consistent with the theories of fair compensation reflected in Kansas Supreme Court cases. First, “ ‘the purpose of awarding damages is to make a party whole by restoring that party to the position he or she was in prior to the injury’ ” and second, “the ‘basic principle of damages’ [is] . . . that the injured party should not be granted a windfall.” He concluded that “[ajpplying Bates to this case will further these goals.” Wildermuth, 2002 WL 922137, at *7.

The parties’ arguments required Judge Waxse to go further than his federal colleagues, Judges Vratil and Rogers, and to review the reasonable value of the medical care and expenses for plaintiff s treatment. More particularly, defendant alleged that plaintiff had not met the threshold requirement of a reasonable value of $2,000 in economic damages, e.g., medical expenses, which would allow him or her to seek recovery of noneconomic damages in a motor vehicle tort action under K.S.A. 40-3117. Based upon Bates’ holding on Medicaid, he ruled that the reduced amount payable under the care provider’s agreement with Medicare conclusively established the “reasonable value” of the medical services under the statute:

“Finally, the [Bates] appeals court recognized that, pursuant to the provider’s agreement with Medicaid, the provider was required to accept a reduced amount for his or her services and could not charge the Medicaid patient for the full amount. That amount became the ‘customary’ and, therefore, ‘reasonable,’ charge. Id. at 705. Implicit in the appeals court’s decision is the holding that the reduced amount pay able under the provider’s agreement with Medicaid should be deemed the reasonable value’ of the services under K.S.A. 40-3117.

“The Court finds that Bates is consistent with the ‘reasonable value’ standard set forth in K.S.A. 40-3117. The Court also finds that the Kansas Court of Appeals’ reasoning regarding the ‘reasonable value’ standard applies equally to Medicare write-offs. As is the case with Medicaid, the reduced amount a provider is obligated to accept pursuant to his/her agreement with Medicare should be deemed the ‘reasonable value’ of the services.” (Emphasis added.) Wildermuth, 2002 WL 922137, at “7.

At least in the context of K.S.A. 40-3117, Judge Waxse arguably foreshadowed the Liberty panel’s clarification 3 years later that “the issue presented is not the applicability of the collateral source rule, but the ‘reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’ ” Liberty, slip op. at 13.

In short, a synthesis of this case law from the federal district courts of Kansas is similar to the synthesis of recent Kansas Court of Appeals decisions as described above. Specifically, previously established write-offs by health care providers through Medicaid, Medicare, or private insurance are not covered by the collateral source rule. Strahley, 2000 WL 1745291; Davis, 2001 WL 709380; Wildermuth, 2002 WL 922137. Moreover, the amount which a health care provider has agreed to accept in full satisfaction for services rendered in treatment of the plaintiff s injuries conclusively establishes the reasonable measure of value of medical care and expenses under K.S.A. 40-3117. Wildermuth, 2002 WL 922137. Finally, the plaintiff cannot introduce evidence of the amount of the write-offs as part of his or her economic damages. See, e.g., Strahley, 2000 WL 1745291; Davis, 2001 WL 709380.

Now that we have examined the direction in which Kansas case law appears to lean, we look at other jurisdictions that have considered the question of the interplay, if any, between the collateral source rule and write-offs.

Other jurisdictions

The Louisiana Supreme Court has explained that other courts have applied three different approaches in determining whether to apply the collateral source rule to Medicaid write-offs. Bozeman v. State, 879 So. 2d 692, 701 (La. 2004). While Bozeman dealt only with Medicaid, the categories apply to all types of write-offs. These approaches are: (1) reasonable value of services; (2) actual amounts paid; and (3) benefit of the bargain.

1. Reasonable value of services

According to the Bozeman court, some jurisdictions apply a reasonable value of services approach and some of those allow plaintiffs to recover the entire amount of medical expenses originally billed, including any amounts later written off by the healthcare provider. See Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, 618 (2001) (Mississippi); Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293 (2003) (South Carolina); Koffman v. Leichtfuss, 246 Wis. 2d 31, 630 N.W.2d 201 (2001) (Wisconsin). The reasonable value of services approach is largely based on the idea that the collateral source rule applies even when the source of the payment is a public relief provided by law. 879 So. 2d at 702. The Bozeman court pointed out that comment b to the Restatement (Second) of Torts § 920A (the general collateral source rule) supports this position:

“ ‘If the plaintiff was himself responsible for die benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him.’ ” (Emphasis added.) 879 So. 2d at 701-02.

The Illinois Supreme Court recently addressed these three categories and adopted the reasonable value approach in Wills v. Foster, 229 Ill. 2d 393, 892 N.E.2d 1018 (2008). The Wills court explained that the difficulty with this approach is how to determine the reasonable value of services. 229 Ill. 2d at 407-11. It opined that a “minority of courts employing this approach hold that the reasonable value of medical services is the actual amount paid,” (229 Ill. 2d at 407-08), and that the “vast majority of courts using a reasonable-value approach allow the plaintiff to seek recovery of the amount originally billed by the healthcare provider.” 229 Ill. 2d at 410. The court held that this latter position is supported by the Restatement (Second) of Torts, specifically sections 924 and 920A. 229 Ill. 2d at 410.

The Wills court observed that Section 920A(2) states in relevant part that “[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” Like the Bozeman court in Louisiana, the Wills court noted that under comment b “[t]he law does not differentiate between die nature of the benefits, so long as they did not come from the defendant or a person acting for him.” 229 Ill. 2d at 411. Section 924 in turn allows an injured plaintiff to recover reasonable medical expenses. Its comment f explains that this is a recovery for value even if there is no liability or expense to the injured person. 229 Ill. 2d at 409-10.

The Wills court gave four basic reasons for adopting the reasonable value approach. First, the court noted the policy justification for the coUateral source rule that the tortfeasor should not benefit from “the expenditures made by the injured party or taire advantage of contracts or other relations that may exist between the injured party and third persons. [Citation omitted.]” 229 Ill. 2d at 413. Second, Section 920A supports a reasonable value approach and does not distinguish between private insurance and government benefits or those who receive their treatment on a gratuitous basis. 229 Ill. 2d at 413. Third, the benefit of the bargain approach (as discussed below) discriminates against certain plaintiffs and prevents sick or disabled plaintiffs covered by Medicaid from recovering the full billed amount. 229 Ill. 2d at 413; see, e.g., Bates v. Hogg, 22 Kan. App. 2d 702. Consequently, this approach undermines the spirit of the collateral source rule because the measure of the defendant’s liability is then determined by the nature of the injured party’s relationship with a source collateral to the tortfeasor. 229 Ill. 2d at 413-14. Fourth, “[t]he vast majority of courts to consider the issue employ some sort of reasonable value approach.” 229 Ill. 2d at 414.

The Wills court acknowledged the obvious criticism of the reasonable value approach. Because it allows recoveiy of the entire amount of medical expenses billed, including health care provider write-offs, it can lead to a windfall for plaintiffs. But the court ruled that it is better for the benefit to go to the plaintiff rather than the tortfeasor. 229 Ill. 2d at 411, 413.

Some courts have taken a slightly different approach to determining the “reasonable value” of damages. In Robinson v. Bates, 112 Ohio St. 3d 17, 857 N.E.2d 1195 (2006), the Ohio Supreme Court reasoned that the collateral source rule does not apply to write-offs of medical expenses that are never paid. Accordingly, “the written-off amount of a medical bill differs from the receipt of compensation or services.” 112 Ohio St. 3d at 22. It noted our holding that “[t]he collateral-source rule excludes only ‘ “evidence of benefits paid by a collateral source.” ’ (Emphasis added.) Wentling v. Med. Anesthesia Servs., P.A., 237 Kan. 503, 515, 701 P.2d 939 (1985), quoting 3 Minzer, Nates, Kimball, Axelrod and Gold-stein, Damages in Tort Actions (1984) 17-5, Section 17.00.” 112 Ohio St. 3d at 22-23. Because no one pays the write-off, the Robinson court reasoned that the write-off cannot possibly constitute payment of any benefit from a collateral source. As a result, “[bjecause no one pays the negotiated reduction, admitting evidence of write-offs does not violate the purpose behind the collateral source rule. The tortfeasor does not obtain a credit because of payments made by a third party on behalf of the plaintiff.” 112 Ohio St. 3d at 23.

The Robinson court sought to eliminate potential disparate treatment of plaintiffs by simply emphasizing the reasonable value of the medical services received. It ruled that both the amount originally billed and the amount ultimately paid may be considered by the jury in making that determination:

“To avoid the creation of separate categories of plaintiffs based on individual insurance coverage, we decline to adopt a categorical rule. Because different insurance arrangements exist, the fairest approach is to make the defendant liable [only] for the reasonable value of plaintiffs medical treatment. Due to the realities of today’s insurance and reimbursement system, in any given case, that determination is not necessarily the amount of the original bill or the amount paid. Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.” (Emphasis added.) 112 Ohio St. 3d at 23.

The Robinson court acknowledged that the jury’s determination of the reasonable value could lie someplace in between the amount of the original bill and the amount accepted in satisfaction:

“The jury may decide that the reasonable value of medical care is the amount originally billed, the amount the medical provider accepted as payment, or some amount in between. Any difference between the original amount of a medical bill and the amount accepted as the bill’s full payment is not a ‘benefit’ under the collateral-source rule because it is not a payment, but both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses.” 112 Ohio St. 3d at 23.

2. Actual amount paid

At least one jurisdiction only allows plaintiffs to recover the actual amount paid to the health care provider in full settlement of the bill. See Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003) (Idaho). This approach is based on the premise that the plaintiff did not incur the write-off amount and therefore should not receive the resulting windfall. See Bozeman, 879 So. 2d at 702. In Dyet, the Idaho Supreme Court held that “ ‘[although the write-off technically is not a payment from a collateral source within the meaning of [the collateral source statute], it is not an item of damages for which plaintiff may recover because plaintiff has incurred no liability therefore.’ [Citation omitted].” 139 Idaho at 529. The Illinois Supreme Court has explained that this approach focuses on “the objective of compensatory damages as making an injured party whole.” Wills, 229 Ill. 2d at 408.

3. Benefit of the bargain

The third approach, the benefit of the bargain, allows plaintiffs to recover the full value of their medical expenses, including the write-off amount, when the plaintiff has paid some consideration for the benefit of the write-off. Bozeman, 879 So. 2d at 703 (Louisiana); see Helfend v. Southern California Rapid Transit Dist., 84 Cal. Rptr. 173, 465 P.2d 61 (1970) (California); Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316 (2000) (Virginia). As the Virginia Supreme Court explained in Acuar. “The portions of medical expenses that health care providers write off [do] constitute ‘compensation or indemnity received by a tort victim from a source collateral to the tortfeasor . . . .’ [Citation omitted.]” 260 Va. at 192.

Similarly, the California Supreme Court’s explanation of the policy judgment behind the rule was that the court was in favor of

“encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. . . . 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.” Helfend, 2 Cal. 3d at 10.

The Illinois Supreme Court explained in Wills that “[u]nder this approach, courts allow plaintiffs who have private insurance to recover the full amount of their medical expenses because they have bargained for the benefits they received.” 229 Ill. 2d at 406. However, while these courts treat Medicare recipients the same as those with private insurance, they do not allow the same for Medicaid: they only allow the amount actually paid. 229 Ill. 2d at 406. As mentioned earlier, the Wills court pointed out that one “obvious criticism” of the benefit of the bargain approach as used by some courts is that it “undermines the collateral source rule by using the plaintiffs relationship with a third party to measure the tortfeasor’s liability.” 229 Ill. 2d at 407 (citing, inter alia, Bozeman, 879 So. 2d at 703-05).

Discussion

Plaintiff contends this court should apply a benefit of the bargain approach. In other words, we should allow plaintiffs to recover their full medical expenses, including the write-offs, when plaintiff has paid some consideration for the benefit of the write-off. Applying such an approach under Kansas law is problematic, however, for several basic reasons.

First, such an approach is contradicted by the very case law relied upon by plaintiff. In both Zak v. Riffel, 34 Kan. App. 2d 93, 115 P.3d 165 (2005), and Johnson v. Baker, 11 Kan. App. 2d 274, 719 P.2d 752 (1986), the Court of Appeals acknowledged that the collateral source rule also applies to gratuitous payments. For example, tibe Zak panel held that “the collateral source rule applies to payments received gratuitously as well as those received as a result of an obligation.” 34 Kan. App. 2d at 106 (citing Johnson v. Baker, 11 Kan. App. 2d 274, 719 P.2d 752 [1986]). More particularly, “ ‘[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 his or her liability for damages.’ ” (Emphasis added.) 34 Kan. App. 2d at 106 (quoting Rose v. Via Christi Health System, Inc., 276 Kan. 539, 544, 78 P.3d 798 [2003] [Rose I]); see Johnson, 11 Kan. App. 2d 274, Syl. ¶ 2.

The Rose I language cited by the Zak panel is from an opinion of this court which cited no authority for the proposition that the collateral source rule applies to gratuitous payments. We observe, however, that in Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906), we indicated that an injured plaintiff may seek recovery for nursing services provided gratuitously by family members. To the extent that our past opinions, including Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), suggested that die collateral source rule only precludes admission of payments made to the plaintiff, we clarify today that the rule also precludes admission of evidence of gratuitous services provided by a collateral source. Accordingly, the benefit of the bargain approach carries litde weight under Kansas law.

The second problem with plaintiff s proposed benefit of the bargain approach is its possible violation of the equal protection provisions of the state and federal constitutions by effectively creating categories of plaintiffs. See Wentling, 237 Kan. 503 (holding that legislature’s limitation on the collateral source rule was unconstitutional because it violated the equal protection provisions of the United States and Kansas Constitutions by discriminating between indigent and insured plaintiffs). By distinguishing among patients with Medicare, Medicaid, and private insurance, this court could potentially discriminate among plaintiffs based on their ability to obtain certain types of health care coverage. See Wills, 229 Ill. 2d at 407 (benefit of the bargain approach “undermines the collateral source rule by using the plaintiff s relationship with a third party to measure the tortfeasor’s liability”). If we were to follow Bates v. Hogg, 22 Kan. App. 2d 702, and to adopt plaintiffs proposal, a Medicaid patient in her position would only be allowed to recover $4,689 plus the $621 she paid herself while a Medicare or privately insured patient could potentially recover $70,496.15.

A third problem with plaintiff s proposed approach is that Medicare beneficiaries do not truly “bargain with” Medicare. And even though insureds concededly may bargain with their private insurance companies, they typically do not negotiate with their health care providers for the write-offs. As Judge Waxse pointed out in Wildermuth v. Staton, 2002 WL 922137 (D. Kan. 2002), Medicare write-offs are not a benefit for which plaintiffs are personally responsible for bargaining or otherwise obtaining. 2002 WL 922137, at *5. Additionally, as the Court of Appeals panel noted in Liberty, federally mandated wage deductions for Medicare can hardly be considered the equivalent of premiums voluntarily paid for private insurance. Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005.

Lastly, but most important, Kansas courts do not reflexively order Hable defendants to pay the full amount billed by the health care providers to injured plaintiffs. Kansas courts instead have typically based the value of damages on the reasonable expense of treatment. See, e.g., Shirley v. Smith, 261 Kan. 685, 693, 933 P.2d 651 (1997) (“The reasonable expense of treatment is a proper element of economic damages.”); Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982) (question of reasonableness is juiy question); Bates v. Hogg, 22 Kan. App. 2d 702, Syl. ¶ 3, 921 P.2d 249, rev. denied 260 Kan. 991 (1996) (person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries); PIK Civ. 4th 171.02 (recoverable damages for personal injury include “reasonable expenses of necessary medical care”). Accordingly, tire defendant has a right to challenge the reasonableness of the plaintiff s medical expenses. Cansler v. Harrington, 231 Kan. at 69.

The “reasonable value” approach to recovery of medical expenses is expressly identified as the one required in the Kansas Automobile Injury Reparations Act in K.S.A. 40-3117. For plaintiffs in a tort action involving motor vehicles to be eligible to seek noneconomic damages, e.g., pain and suffering, they can be required to have an injury with medical treatment of “reasonable value” of $2,000 or more. But the statute goes further and expresses how reasonable value is to be determined. It provides that “the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value.” (Emphasis added.) K.S.A. 40-3117. Instead, “[e]vidence that the reasonable value thereof was an amount different from the amount actually charged shall be admissible.” 40-3117; see Wildermuth, 2002 WL 922137. Evidence demonstrating that the charged amount is not reasonable typically has been admitted through cross-examination of plaintiffs witnesses, by direct examination of defendant’s witnesses, or both.

Based upon our review of this and other Kansas state case law on the reasonable value of medical expenses and our review of Kansas law on write-offs and the collateral source rule — both from state court and federal courts — we reach several conclusions in the instant case.

First, we reject plaintiff s benefit of the bargain approach because of the shortcomings previously listed. Second, the reasonable value approach to medical expenses remains valid, including when the medical services are self-administered or gratuitously provided by family members. See, e.g., Shirley v. Smith, 261 Kan. at 693 (“The reasonable expense of treatment is a proper element of economic damages.”); Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906); PIK Civ. 4th 171.02. Third, the charges “actually made” or billed by the health care provider for plaintiff s medical treatment expenses are not conclusive as to their reasonable value: other evidence shall be admissible. See, e.g., Cansler v. Harrington, 231 Kan. at 69 (defendant has right to challenge reasonableness of plaintiff s medical expenses); K.S.A. 40-3117. Toward that end, we note that according to KADC’s brief, studies performed earlier in this decade reveal that the average charge-to-cost ratio (i.e., “markup”) for approximately 4,000 hospitals across the country was 244.37%. Wesley Medical Center, the hospital where our plaintiff underwent her surgery and treatment, had a charge-to-cost ratio of almost 400% according to this study.

Fourth, and most important to resolving the issue in the instant case’s collateral source context, this other evidence relevant to determining the reasonable value of medical expenses may include write-offs or other acknowledgments that something less than the charged amount has satisfied, or will satisfy, the amount billed. Accordingly, neither the amount billed nor the amount actually accepted after a write-off conclusively establishes the “reasonable value” of medical services. We therefore expressly reject the Wild-ermuth court conclusion that the amount accepted in satisfaction “should be deemed the ‘reasonable value’ ” of the medical services. Wildermuth, 2002 WL 922137, at *7. We also reject similar expressions contained in Fischer v. Farmers Ins. Co., No. 90,246, unpublished opinion filed February 18,2005, and Liberty, e.g., that the paid amount is the measure of the reasonable value of medical care and treatment. In short, we embrace the rationale and holding of Robinson v. Bates, 112 Ohio St. 3d 17, from the Ohio Supreme Court: When medical treatment expenses are paid from a collateral source at a discounted rate, determining the reasonable value of the medical services becomes an issue for the finder of fact. Stated more completely, when a finder of fact is determining the reasonable value of medical services, the collateral source rule bars admission of evidence stating that the expenses were paid by a collateral source. However, the rule does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.

The Robinson approach — although rejected since its December 2006 release by Wisconsin (Leitinger v. Dbart, Inc., 302 Wis. 2d 110, 736 N.W.2d 1 [July 2007]) and Illinois (Wills v. Foster, 229 Ill. 2d 393 [June 2008]) — -was embraced by the Indiana Supreme Court in Stanley v. Walker, 906 N.E.2d 852 (May 2009). There, plaintiff introduced into evidence his medical bills showing the amounts originally billed to him ($11,570). Defendant attempted to introduce the discounted amount actually paid and accepted as satisfaction of the bill ($6,820). The trial court excluded defendant’s evidence, holding that insurance and “ ‘anything flowing from the insurance benefit purchased by the plaintiff ” would be prohibited by the collateral source statute. 906 N.E.2d at 854. The Indiana Supreme Court ultimately remanded with an order to reduce the damage award, holding that the statute did not bar admission of evidence of discounted amounts or write-offs for the purpose of determining the reasonable value of medical services. 906 N.E.2d at 858-59. Its journey to this conclusion is instructive.

The Stanley court elaborated upon the rationale established by the Ohio Supreme Court in Robinson. Although Indiana, unlike Kansas, has a collateral source statute, like Kansas law the Indiana statute retained

“the common law principle that collateral source payments should not reduce a damage award if they resulted from the victim’s own foresight — both insurance purchased by the victim and also government benefits — presumably because the victim has paid for those benefits through taxes.” Stanley, 906 N.E.2d at 855.

Also like in Kansas, an Indiana “injured plaintiff is entitled to recover damages for medical expenses that were both necessary and reasonable.” (Emphasis added.) Stanley, 906 N.E.2d at 855. As a result, the Stanley court, like this court in the instant case (and as suggested in Fischer and Liberty), was directly “confronted with the question of how to determine the reasonable value of medical services, when an injured plaintiff s medical treatment is paid from a collateral source at a discounted rate.” Stanley, 906 N.E.2d at 855.

The Stanley court noted that while the proper measure of medical expenses is their reasonable value, that particular determination was difficult due to complexities of health care pricing structures:

“The complexities of health care pricing structures make it difficult to determine whether the amount paid, the amount billed, or an amount in between represents the reasonable value of medical services. One authority reports that hospitals historically billed insured and uninsured patients similarly. Mark A. Hall & Carl E. Schneider, Patients as Consumers: Courts, Contracts and the New Medical Marketplace, 106 Mich. L. Rev. 643, 663 (2008). With the advent of managed care, some insurers began demanding deep discounts, and hospitals shifted costs to less influential patients. Id. This authority reports that insurers generally pay about forty cents per dollar of billed charges and that hospitals accept such amounts in full satisfaction of the billed charges. Id.” Stanley, 906 N.E.2d at 857.

The Stanley court observed the present tenuous relationship between medical charges and medical costs. Accordingly, it concluded that the reasonable value of medical services was not necessarily represented by either the amount originally billed or the amount actually paid:

“As more medical providers are paid under fixed payment arrangements, another authority reports, hospital charge structures have become less correlated to hospital operations and actual payments. The Lewin Group, A Study of Hospital Charge Setting Practices (2005). Currently the relationship between charges and costs is ‘tenuous at best. ’ Id. at 7. In fact, hospital executives reportedly admit that most charges have no relation to anything, and certainly not to cost. ’ Hall, Patients as Consumers at 665. Thus, based on the realities of health care finance, we are unconvinced that the reasonable value of medical services is necessarily represented by either the amount actually paid or the amount stated in the original medical bill.” (Emphasis added.) Stanley, 906 N.E.2d at 857.

After acknowledging that the focus was on the reasonable value of medical services, not the actual charge, the Stanley court held that the Robinson approach was also tire fairest. More specifically, the Robinson court avoided the problem of creating separate categories of plaintiffs based upon how their medical expenses were financed:

“The reasonable value of medical services is the measure used to determine damages to an injured party in a personal injury matter. This value is not exclusively based on tire actual amount paid or the amount originally billed, though these figures certainly may constitute evidence as to the reasonable value of medical services. A defendant is liable for the reasonable value of the services. We find this to be the fairest approach; to do otherwise would create separate categories of plaintiffs based on the method used to finance medical expenses. See Robinson, 857 N.E.2d at 1200 (discussing how its rule avoided the creation of separate categories of plaintiffs based on individual insurance coverage).” (Emphasis added.) Stanley, 906 N.E.2d at 858.

The Stanley court recognized several methods, including those used in Kansas, for determining the reasonable value of medical expenses:

“Given the current state of the health care pricing system where, to repeat, authorities suggest that a medical provider’s billed charges do not equate to cost, the juiy may well need the amount of the payments, amounts billed by medical service providers, and other relevant and admissible evidence to be able to determine the amount of reasonable medical expenses. To assist the jury in this regard, a defendant may cross-examine any witness called by the plaintiff to establish reasonableness. The defendant may also introduce its own witnesses to testify that the billed amounts do not represent the reasonable value of services.” (Emphasis added.) Stanley, 906 N.E.2d at 858.

See, e.g., K.S.A. 40-3117.

The Stanley court then approved the additional method permitted in Robinson for determining reasonable value, i.e., allowing evidence of discounted amounts, write-offs, or reimbursement rates:

“Additionally, the defendant may introduce the discounted amounts into evidence to rebut the reasonableness of charges introduced by the plaintiff. We recognize that the discount of a particular provider generally arises out of a contractual relationship with health insurers or government agencies and reflects a number of factors — not just the reasonable value of die medical services. However, ive believe that this evidence is of value in the fact-finding process leading to the determination of the reasonable value of medical services. ’’(Emphasis added.) 906 N.E.2d at 858.

The Stanley court concluded that “to the extent the discounted amounts may be introduced without referencing insurance, they may be used to determine the reasonable value of medical services.” (Emphasis added.) Stanley, 906 N.E.2d at 853; see also Scott v. Garfield, 454 Mass. 790, 807, 912 N.E.2d 1000 (2009) (Cordy and Botsford, JJ., concurring) (“While I do not challenge the principal tenet of the collateral source rule, that benefits or payment received on behalf of a plaintiff from an independent source should not diminish recoveiy from the tortfeasor, the plaintiff is only entitled to the reasonable value of his medical expenses, and the price that a medical provider is prepared to accept for the medical services rendered is highly relevant to that determination.”); cf. Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005, rev. denied 280 Kan. 983 (2005) (“[T]he issue presented is not the applicability of the collateral source rule, but rather the ‘reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’ ”).

Criticism of Robinson

Robinson has been criticized. As mentioned, since Robinsons December 2006 release its approach has been rejected by Wisconsin (Leitinger v. Dbart, Inc., 302 Wis. 2d 110 [July 2007]) and Illinois (Wills v. Foster, 229 Ill. 2d 393, 892 N.E.2d 1018 [June 2008]). Robinson s specific rationale that the evidence of write-offs and discounts is relevant and admissible for determining the reasonableness of the plaintiff s medical expenses has been expressly rejected. Among other things, the concerns seem to be that admitting evidence of the write-offs and discounts will (1) impair or undermine tire collateral source rule; (2) confuse the juiy; and (3) be of marginal, or no, relevance. Each concern will be addressed in turn.

1. Impairment of Collateral Source Rule

The Wisconsin Supreme Court in Leitinger expressed the concern that admitting evidence of the discounts or reimbursement rates undermines the collateral source rule:

“[T]he tortfeasor is not to benefit from the fact that the medical sendees provider was paid less by a collateral source than the amount billed. If evidence of the collateral source payments were admissible, even for consideration of the reasonable value of the medical treatment rendered, a plaintiffs recovery of medical expenses would be affected by the amount actually paid by a collateral source for medical services. Such a ‘limitation’ on the plaintiffs damages contravenes tire view of the collateral source rule.” (Emphasis added.) 302 Wis. 2d at 135-36.

The Leitinger court further considered the argument that the defendant insurance company was not undercutting the collateral source rule because it was seeking to introduce as evidence only the amount actually paid for medical treatment, not the source of the compromised payments, and was not seeking “to reduce the damages by the amount of these collateral source payments.” 302 Wis. 2d at 136. The Wisconsin Supreme Court observed that this argument had been rejected by the South Carolina Supreme Court in Covington v. George, 359 S.C. 100, 104, 597 S.E.2d 142 (2004):

“The South Carolina Supreme Court evaluated an argument similar to [defendant’s], The court declared that ‘[w]hile facially appealing, this argument ignores the reality that unexplained, the compromised payments would in fact confuse the jury. Conversely, any attempts on the part of the plaintiff to explain the compromised payment would necessarily lead to the existence of a collateral source.’ The South Carolina Supreme Court held that the collateral source rule is directly implicated and that a party cannot introduce evidence of the actual payment by a collateral source to challenge the reasonableness of the plaintiffs medical expenses.” (Emphasis added.) 302 Wis. 2d at 137.

Like the South Carolina Supreme Court, the Leitinger court then rejected the defendant insurance company’s argument, essentially holding that the defendant was trying to outflank the collateral source rule:

“Although claiming that the evidence assists the fact-finder in determining the reasonable value of the medical treatment and does not limit or reduce the damages, [the defendant], in essence, is seeking to do indirectly what it cannot do directly, that is, it is seeking to limit [the plaintiff s] award for expenses for medical treatment by introducing evidence that payment was made by a collateral source. [Defendant] ignores the fact that the collateral source rule protects against the ‘ever-present danger that the juiy will misuse the evidence [of collateral payments] to diminish the damage award. [Defendant] is trying to circumvent the collateral source rule.

“The collateral source rule prevents the fact-finder from learning about collateral source payments, even when offered supposedly to assist the jury in determining the reasonable value of the medical treatment rendered, so that the existence of collateral source payments will not influence the fact-finder.” (Emphasis added.) 302 Wis. 2d at 137.

Apparently, Wisconsin’s Supreme Court — and Illinois’ in Wills-would be concerned in the instant case that once the juxy hears that $5,310 was accepted to satisfy the hospital’s original bill to plaintiff of $70,496.15, it would perhaps not only fail to award the $65,186.15 but that it would also deduct the paid $5,310 (or at least Coventry’s $4,689) from its final damage award. In other words, the jury would not even award for the $4,689 because that amount had already been paid by a collateral source, i.e., “ ‘the jury will misuse the evidence of collateral payments to diminish the damage award.’ ” 302 Wis. 2d at 137.

The evidence admitted, however, need not necessarily be “evidence that payment was made by a collateral source,” e.g., private insurance or Medicare. 302 Wis. 2d at 137. Accordingly, if the jury only hears that “the hospital will accept $5,000 to satisfy its bill of $70,000,” i.e., it does not hear that payment was actually made, then the juiy can still reasonably perceive that the plaintiff will make payment herself. Similarly, even if tire jury hears that “$5,000 has paid this $70,000 bill in full,” then the juiy can still reasonably perceive that the plaintiff has paid it herself, e.g., by receiving a cash discount. In fact, in the instant case, plaintiff did pay part of the bill herself.

Stanley v. Walker, 906 N.E.2d 852, is again particularly instructive. There, defendant Stanley conceded that he could not ask plaintiff the amount of expenses that were paid by his health insurance carrier because “ ‘that’s the collateral source.’ ” 906 N.E.2d at 858. Instead, he sought to enter into evidence the amount that two parties had agreed to as “reasonable,” as evidenced by the discounts. Specifically, Stanley wanted to submit evidence showing that the amount accepted in satisfaction of the medical charges totaled $6,820, that is, $4,750 less than the $11,570 originally billed. The court held that “[bjecause Stanley sought to do so without referencing insurance, his evidence should have been admitted.” 906 N.E.2d at 859.

Accordingly, we are unpersuaded that the “unexplained compromise payment” will cause ill effects. See Covington, 359 S.C. at 104 (rejecting defendant’s argument because “unexplained, the compromise payments would in fact confuse the jury”). We therefore respectfully disagree with the courts in Leitinger and Coving-ton.

2. Jury Confusion

As mentioned, in Leitinger the Wisconsin Supreme Court also articulated concerns about confusion caused by admitting evidence of discounts and reimbursement rates. This particular concern apparently arises because discounts can be due to factors besides the value of medical services: See, e.g., Wills, 229 Ill. 2d 393. This concern somewhat overlaps with the earlier articulated concerns by courts about unexplained compromise payments confusing the jury. See, e.g., Covington, 359 S.C. at 104.

“The admission in evidence of the amount actually paid in the present case, even if marginally relevant [to reasonable value of medical expenses], might bring complex, confusing side issues before the fact-finder that are not necessarily related to the value of the medical services rendered. Accordingly, [defendant insurance company] errs in insisting that the amount actually paid by a collateral source in the present case is a factor for the fact-finder in determining reasonable value of those services.” (Emphasis added.) 302 Wis. 2d at 145-46.

We are confident that any concerns about jury confusion with possible side issues can be alleviated by a vigilant trial court. At the time the write-off and discount evidence is admitted, the court can, if necessary, inform the jury of the evidence’s limited purpose. See K.S.A. 60-406 ("When relevant evidence is admissible ... for one purpose and is inadmissible for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”). Kansas trial courts have been instructing juries in this fashion for many years. See State v. Kidwell, 199 Kan. 752, 755, 434 P.2d 316 (1967) (‘When evidence is introduced for a limited purpose the trial court should explain the limitation to the jury and limit its application to that purpose.”) (citing Griffith v. Railroad Co., 100 Kan. 500, 166 P. 467 [1917]). The trial court can also, if necessaiy, inform the jury of tire particular purpose of the evidence through limiting instructions at the time the case is submitted. See PIK Civ. 4th 102.40 (‘Whenever any evidence has been admitted limited to one purpose, the jury should not consider it for any other purpose.”).

We observe, for example, that Kansas courts frequently admit evidence in criminal trials of a defendant’s prior crimes and civil wrongs under K.S.A. 60-455. This evidence is potentially quite prejudicial as improper proof of defendant’s propensity to commit the present, often egregious, crimes. But the evidence is nevertheless allowed provided that the jury receives limiting instructions about the narrow purposes for its admissibility, e.g., motive and knowledge. See State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). And the failure to give such limiting instruction does not demand automatic reversal but is subject to a harmlessness analysis. 282 Kan. at 58; see State v. Cruse, 112 Kan. 486, 496, 212 P. 81 (1923).

We turn now to the specific concern about introducing confusing side issues that are not necessarily related to the reasonable value of the medical services rendered. We observe that in Wisconsin medical malpractice actions, evidence of collateral source payments nevertheless can be admissible for this particular valuation purpose. See Leitinger, 302 Wis. 2d at 140-41, 145 n.66 (“In Lag-erstrom, this court recognized that the legislature decided in enacting Wis. Stat. § 893.55[7] that evidence of collateral source payments may be relevant to determining the reasonable value of medical services” but “must not reduce the reasonable value of medical services by the amount of the collateral source payments.”).

Presumably, the Wisconsin trial courts take appropriate precautions when handling these malpractice cases and strike an acceptable balance between these competing considerations. Indeed, in Lagerstrom v. Myrtle Werth Hosp.-Mayo Health Sys., 285 Wis. 2d 1, 39, 700 N.W.2d 201 (2005), the Wisconsin Supreme Court ruled that while evidence of collateral source payments may be used by the jury to determine the reasonable value of medical services, “the circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments.” 285 Wis. 2d at 38. In this fashion, Wisconsin appears to ably address the aftermath of the concern of the South Carolina Supreme Court in Covington that “attempts on the part of plaintiff to explain the compromised payment would necessarily lead to the existence of a collateral source.” (Emphasis added.) 359 S.C. at 104. In short, die plaintiffs rights can be protected.

Several of our concurring colleagues criticize our rationale and holding. The following abbreviated responses are sufficient.

First, they contend that under our holding, the uninsured plaintiff is eligible to recover for the full amount of services billed while the insured plaintiff is not. They label this as discriminatory. We disagree. An uninsured plaintiff may herself pay her medical expenses at a negotiated price, e.g., steep cash discount upon her threat of bankruptcy. See Robinson, 112 Ohio St. 3d at 23 (“Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.”). In that event, just as with an insured plaintiff who has insurance carrier write-offs, evidence of the lower amount accepted in full satisfaction of the debt could be admissible for determining the reasonable value of the medical services.

Second, in today’s world we do not share the concerns of our concurring colleagues about the purported catastrophic results emanating from a jury’s “likely inference” about the existence of a plaintiffs collateral source, e.g., medical insurance. For example, for years Kansas has required motor vehicle liability insurance coverage — or self-insurance — and prohibited the owner of an uninsured vehicle from allowing it to be operated on highways or upon property open to use by the public. K.S.A. 40-3104. And for years Kansas has also required owner certification of the maintenance of insurance before applying for registration or renewal of registration of motor vehicles. K.S.A. 8-173(c). Because Kansas juries are often selected from drivers’ license rolls, our juries obviously contain Kansas drivers and motor vehicle owners. Accordingly, they will “likely infer” insurance coverage for defendants and plaintiffs in cases involving motor vehicle accidents. Yet we routinely entrust our juries with considering liability and determining resultant damage amounts.

The two-car accident case of Bott v. Wendler, 203 Kan. 212, 453 P.2d 100 (1969), is of guidance on this issue. There, the jury sent back the following question to the court during their deliberation: “Amount of liability Ins. of Mrs. Bott and Mr. Wendler — There is a lot of money involved here and we do not want to leave either party penniless. This we need to know — Please.” 203 Kan. at 224. The jury rejected defendants’ damage claims and awarded damages to plaintiffs. Defendants appealed, arguing that because of plaintiffs’ counsel’s efforts, “the probability and fact that the defendants were covered by liability insurance was injected into the case which materially prejudiced the defendants.” 203 Kan. at 223. In one specific contention, defendants claimed that counsel had several times referred to men who the jury might have identified as representatives of defendants’ insurance carrier who had helped defense counsel investigate the case.

In rejecting defendants’ argument, we held that, among other things:

“Furthermore, there is nothing in the record to suggest that the juiy’s question to the court concerning liability insurance was motivated by any reference to insurance at the trial, nor does such fact suggest insurance was improperly injected into the case. It is general knowledge that most drivers today have liability insurance, and neither party to a lawsuit should be prejudiced by a question which may be prompted by the jury’s own experience and common knowledge of the affairs of mankind.” (Emphasis added.) 203 Kan. at 228.

See also Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980 (1971) (Despite plaintiff s doctor’s “monstrous testimony” about insurance, e.g., his employment of “the opprobrious term,” the “malignant term,” and “odious expression”, court held reference was inadvertent and did not prejudicially affect the substantial rights of the complaining party.).

We now turn to the Wisconsin Supreme Court’s last set of concerns.

3. Relevance

The Leitinger court also expressed relevance concerns with evidence of discounts and reimbursement rates:

“The evidence [defendant insurance company] proffers will not assist tire fact-finder as [defendant] claims, because a particular health insurance company’s negotiated rates with a health care provider are not necessarily relevant evidence of the reasonable value of the medical services in a tort action. . . . The reimbursement rate of a particular health insurance company generally arises out of a contractual relationship and reflects a multitude of factors related to the relationship of tire insurance company, and the provider, not just to the reasonable value of die medical services.” (Emphasis added.) 302 Wis. 2d at 144.

See, e.g., Radvany v. Davis, 262 Va. 308, 310, 551 S.E.2d 347 (2001) (“negotiated amounts ... do not reflect the prevailing cost’ of those services to other patients”).

The Indiana Supreme Court in Stanley v. Walker essentially acknowledged this concern but nevertheless found the evidence of discounts relevant to the reasonable value of medical services:

“We recognize that the discount of a particular provider generally arises out of a contractual relationship with health insurers or government agencies and reflects a number offactorsnot just the reasonable value of the medical services. However, we believe that this evidence is of value in the fact-finding process leading to die determination of the reasonable value of medical services.” (Emphasis added.) Stanley, 906 N.E.2d at 858.

In Kansas, relevant evidence is any “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevance only requires a logical connection between the asserted facts and the inferences they are intended to estabhsh. State v. Richmond, 289 Kan. 419, Syl. ¶ 9, 212 P.3d 165 (2009). Given this standard, we agree with the Stanley court. Evidence of the amount accepted in satisfaction of the bill for medical services provided to an injured plaintiff is of relevance, i.e., some value, in determining the reasonable value of those services. As mentioned, the Leitinger court itself acknowledged that the Wisconsin Legislature apparently felt that evidence of collateral source payments was relevant in medical malpractice actions for the purpose of determining the reasonable value of medical services. 302 Wis. 2d at 140-41, 145 n.66; see also Scott v. Garfield, 454 Mass. 790, 912 N.E.2d 1000 (2009) (Cordy and Botsford, JJ., concurring) (“The plaintiff is only entitled to the reasonable value of his medical expenses, and the price that a medical provider is prepared to accept for the medical services rendered is highly relevant to that determination.”).

Moreover, when such relevant evidence is withheld from the jury, the jury is inappropriately left to speculate on the reasonable value of the medical services. We agree with the Leitinger dissent:

“ ‘If the higher stated medical bill, an amount that never was and never will be paid, is admitted without evidence of the lower reimbursement rate, the jury is basing their verdict on “mere speculation or conjecture.” The difference between the stated bill and the paid charges ... is purely fictional as a true charge.’ [Citation omitted.]” 302 Wis. 2d at 156 (Roggensack, J., dissenting).

The Leitinger dissent is consistent with this court’s long-stated concerns about awarding damages based upon speculative evidence:

“In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of the loss.” (Emphasis added.) McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 (1994).

Here, if there is only evidence admitted of a $70,496.15 hospital bill, and no evidence of any lesser amount being accepted in satisfaction of that bill, a jury would easily be justified in awarding the full $70,496.15 as reasonable value of damages. Cf. Jackson v. City of Kansas City, 263 Kan. 143,151-52, 947 P.2d 31 (1997) (jury awarded more than amount of medical bills: court refused to reduce juiy verdict to amount actually paid by plaintiff on those bills because no evidence in record that hospital had settled for less than the amount due or had written off the remaining portion of the bills). This verdict would be sustainable despite the awarded amount being approximately 12 times the amount the defendant contends — and the hospital’s acceptance suggests — that the services are reasonably worth. With this result, we begin to leave the realm of compensatory damages and move toward the punitive.

Moreover, of this $70,496.15 awarded to plaintiff, not even the $4,689 actually paid by Coventry would be subject to subrogation. K.A.R. 40-1-20 provides:

“An insurance company shall not issue contracts of insurance in Kansas containing a ‘subrogation’ clause applicable to coverages providing for reimbursement of medical, surgical, hospital or funeral expenses.”

In conclusion, we reverse and remand to the district court for further proceedings. On remand the district court may allow into evidence (1) the original amount billed ($70,496.15), and (2) the amount accepted by the hospital in full satisfaction of the amount billed ($5,310). However, evidence of the source of any actual payments is inadmissible under the collateral source rule. The finder of fact shall determine from these and other facts the reasonable value of the medical services provided to plaintiff.

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