APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TRIPP COUNTY, SOUTH DAKOTA. HONORABLE KATHLEEN F. TRANDAHL Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS AUGUST 26, 2008
[¶1.] In this personal injury action, the defendant appeals a verdict for the plaintiff on the ground that the trial court erred when it prohibited the defense from using the plaintiff's medical insurance coverage to rebut the plaintiff's testimony that he did not seek further medical care because he could not afford it. Defendant argues for an exception to the collateral source rule when parties volunteer their financial circumstances before the jury. Although an exception may be appropriate in cases where collateral source evidence is offered on a substantial and relevant issue, such as malingering, defendant's offer of proof here was not sufficiently compelling to conclude that the trial court abused its discretion in refusing to admit the evidence.
[¶2.] On September 26, 2005, Terrance Groth, while boating on Lake Francis Case, collided with a boat owned by Gerald Bachman. Bachman and his son-in-law, Reynaldo Cruz, were fishing while floating downstream. As a result of the impact, Cruz was thrown to his back. He sought medical treatment the following day, complaining of pain in his low back. An x-ray was taken, with unremarkable results, and Dr. Henderson recommended that Cruz follow up if he did not feel better. On November 2, 2005, Cruz sought care with Dr. Schramm, complaining of low back and neck pain. A CT scan revealed no visible injuries. Cruz was diagnosed with cervical and thoracic myalgia and arthralgia and was given a prescription medication for pain.
[¶3.] In June 2006, Cruz sued Groth to recover for personal injuries. Groth answered admitting "that he was negligent and that his negligence was the proximate cause of the boating accident at issue." Groth denied that the accident caused Cruz's damages, however. Before trial,Cruz moved in limine to prevent Groth from mentioning (1) any Med Pay available to Cruz from the insurance policy owned by Bachman, and (2) whether Cruz was personally insured or had insurance available after the accident. Groth argued that this insurance information should be allowed to counter Cruz's anticipated testimony that the reason he did not continue to seek medical treatment despite his allegations of continued problems was because he could not afford it. Cruz's attorney responded that his client "didn't go to the doctor because the defendant's insurance . . . wouldn't pay for it."
[¶4.] Groth made an offer of proof that if he were allowed to question Cruz the evidence would show that Bachman had "medical pay insurance left on the boat" that "would have paid at least for another 900 some dollars' worth of treatment," and Cruz also "had health insurance through [his] employer . . . that would have paid for any additional treatment as well." Cruz's attorney responded that his client did have Med Pay of $920, but "there were periods of time where [Cruz] did not, in the last 2 years, have health insurance available." After balancing the probative value of this evidence against its prejudicial impact, the trial court granted Cruz's motion in limine, preventing the mentioning of available Med Pay or health insurance. The court reasoned that "if insurance is interjected into this, that it will be unfairly prejudicial because it will take the jury away from looking at what they're supposed to look at and solely look at the deal with insurance."
[¶5.] In opening statements, Cruz's attorney pled his client's poverty: "The reason [Cruz] didn't seek medical treatment was he was worried about his medical bills and - he's living hand to mouth with house payments and he's got four children, two of them I believe in college now and the other two will be there very soon." During trial, counsel for Cruz asked him why he did not continue to seek treatment if he was still in pain from the accident. Cruz responded, "I was just trying to see if I could get over it. . . . I was still trying to get to work because I still - I still didn't want to miss any work. So I was trying to get myself to work, and I was just trying to make the day, you know, without -- without making my injuries worse so -- and hoping that it would just, you know, go away." When asked why he did not seek treatment after November 2, Cruz said, "Well, because I could not afford to. You know, it's -- it's costly, so that's - you know, it's not easy going to a doctor who's - without being able to afford to go. I just didn't go." On cross examination, Groth's attorney asked Cruz why he had not followed up with the two physicians, Dr. Henderson and Dr. Schramm, who had treated him shortly after the accident. Cruz responded, "Well, after noticing the -- the cost, I mean, it -- it kind of scared me off."
[¶6.] In closing argument, counsel for Cruz returned to the poverty theme:
What the defense did try to do was say "because [Cruz] did not seek treatment consistently and frequently, therefore he must not be hurt." Now, [Cruz,] the day after the accident, did seek treatment. He got some medication. He lasted 5 weeks and had to seek treatment again, and then he lasted 6 months and he got another prescription over the telephone, all the time being concerned about the cost and his ability to pay for medical bills.
And besides, he's a tough guy, and he was willing to suck it up rather than risk not being able to pay for it.
In Groth's closing argument, defense counsel suggested malingering: despite all Cruz's complaints of continuing pain, he failed to return to his medical providers for treatment.
We don't have any follow-up, not then, not in November or anytime in 2005, and not ever. Not to this day has he followed up with any treating medical provider, not one. . . .
And what he testified to is the reason he didn't follow up for medical treatment was that he couldn't afford it. He couldn't afford it. Mr. Cruz was fully employed full-time at the hospital working around doctors and nurses every single day 5 days a week 40 hours a week. His wife was a fully employed RN ...