March 26, 2009

TO ALL INTERESTED COMPANIES

On May 15, 2009, the Kansas Court of Appeals issued its opinion in Adamson v. Bicknell, and the opinion may be of interest to you.

            Adamson claimed injury as a result of a motor vehicle accident. She sought to amend her petition to make a claim of punitive damages against the defendant based on defendant’s use of illicit drugs. Because plaintiff did not have evidence of the level of illicit substance in defendant’s body at the time the accident occurred, the District Court denied the motion to amend. 

            On appeal, the Court of Appeals found that although the plaintiff could not show the level of Bicknell’s drug intoxication at the time the accident occurred, plaintiff did have evidence that the defendant had smoked marijuana approximately four hours before the accident. Urinalysis conducted on the defendant following the accident tested positive for marijuana and cocaine. As part of a diversion agreement, the defendant had admitted to driving under the influence at the time of the accident, and in deposition, he acknowledged that marijuana played a role in the accident. The Court of Appeals held that the fact that plaintiff could not show that the level of chemical in defendant’s system at the time of the accident was “beyond the legal limit” was irrelevant to whether the defendant did or did not behave in a reckless manner. The Court held that the evidence submitted was sufficient to allow a jury to decide whether defendant’s conduct was reckless, i.e. performed with a realization of the imminence of danger with complete indifference to the probably consequences of the actions. The Court of Appeals stated that the evidence that the defendant willfully drove a vehicle under the influence of drugs, regardless of the level of impairment, was sufficient to allow the case to be submitted to the jury on the issue of punitive damages.

            The District Court had also ruled that plaintiff could not present evidence of medical expenses, beyond the amount paid by Medicaid and PIP, because plaintiff was eligible for Medicaid. Some of the medical bills showed a Medicaid adjustment.  Other bills showed that expenses were written off as a “bad debt” or a “commercial adjustment”. The Court of Appeals held that plaintiff could submit medical expenses to the jury for consideration even though the expense had been written off as a “bad debt”. The Court also held that a “commercial adjustment” was a collateral source and plaintiff could present the original bill as a medical expense. 

            Although this case does not conclusively decide whether a plaintiff can present medical expenses as special items of damage in the amounts originally billed, even though there were substantial discounts taken by Medicare or pursuant to a P.P.O. contract, the opinion does give clear indication that the Court of Appeals was only willing to allow the defendant the benefit of a Medicaid discount until such time as additional decisions are rendered by the Kansas Supreme Court. We do expect a petition to be filed in the Kansas Supreme Court to review this decision from the Court of Appeals.

SCHMITT MANZ SWANSON & MULHERN, PC
Paul Hasty, Jr.
7101 College Blvd., Suite 350
Overland Park, KS  66210
Phone: 913/317-8068
Facsimile: 913/317-8058
phasty@msmlawkc.com