Plaintiff was struck by a tow truck and transported by ambulance to Kaiser. When he was released, he returned once to refill his pain medication, and never returned. Six weeks later, Plaintiff retained an attorney who sent him to a pain management doctor and to a chiropractor where he treated for approximately 8 months. The pain management doctor and chiropractor were not covered by Plaintiff’s insurance.
At the mediation, plaintiff argued the applicability of Pebley v. Santa Clara Organics, LLC, a case decided on May 8, 2018. The court had ruled that an insured plaintiff who chose to treat with doctors outside his insurance plan should be treated as an uninsured plaintiff for the purpose of determining economic damages. The Pebley court explicitly rejected the argument that Plaintiff’s failure to treat with an out of network provider was failure to mitigate his damages.
The LBL team distinguished Pebley on the ground that, in this case, the care from the chiropractor and pain management doctor was not medically reasonable and necessary because no doctor at Kaiser (or any other doctor) ever told Plaintiff that he required any follow up care. Plaintiff’s only referral came from his attorney. Pebley confirms the long-held principle that an uninsured Plaintiff cannot establish his recoverable damages by mere billed amounts for the treatment rendered.
In this case, Plaintiff’s reasonable cost of treatment could not be determined because Plaintiff only offered the billing statements as evidence of his economic damages. Plaintiff reduce his initial demand by more than a third, enabling Rachel Ostrander, Christine Reed, and the LBL team to negotiate a favorable settlement.