Hidden Damages in Your Personal Injury Case

Hidden Damages in Your Personal Injury Case

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Are You Missing Hidden Damages in Your Personal Injury Case?

Most plaintiff attorneys understand that Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 limits recovery to the reasonable value of medical services paid or incurred. Yet few practitioners take the time to evaluate what remains owed under the provider’s contract with the health plan at the time of settlement.

These unpaid balances are frequently missing from the recovery agent’s ledger and from the patient’s account summary. They are real, provable, and recoverable under Howell. If you are only using the posted payments as the basis for your damages, you may be leaving a significant portion of your client’s recovery unclaimed.

Understanding the Legal Foundation

Howell established that plaintiffs may not recover the inflated retail rate of billed charges but may recover the amounts actually paid or contractually owed for covered care. The California Supreme Court clarified that the reasonable value of services is defined by the contractual relationship between the provider and the health plan.

For these amounts to be recoverable:

1. A valid contract must exist between the provider and the health plan
2. The provider must have submitted the charges for payment

If those conditions are met, the total contractual amount owed, whether paid or not, determines the recoverable value. Balances that remain unpaid at the time of settlement continue to meet the definition of incurred medical expenses under Howell.

Why These Damages Are Overlooked

• Recovery agent ledgers list only posted payments and omit contractual obligations that remain unpaid
• Hospital accounts are often closed before all contractual payments are processed
• Institutional receivables may be assigned to collection vendors that do not reconcile payments to individual patients
• Payments may be aggregated in bulk without reference to the original claim
• Providers may refuse to disclose copies of alternate rate agreements citing confidentiality

Despite these barriers, the law recognizes the amount owed under contract, not merely what appears in the financial ledger.

How to Identify Hidden Past Medical Special Damages

Recovering the full value of medical damages requires a deeper investigation into provider records and plan payments. Attorneys should:

1. Request the complete patient account record from the provider including all transactions, adjustments, and applied cost shares
2. Obtain every explanation of benefits issued by the health plan
3. Request payment ledgers from the health plan or reimbursement vendor
4. Depose the hospital’s person most qualified to confirm:
   • The applicable provider contract and its payment terms
   • The charges submitted for payment
   • Payments received and applied
   • Balances remaining due under the contract
   • How unpaid amounts are handled or assigned for collection
5. Use your client’s cost share to infer the total contractual value of care. If the client was responsible for ten to twenty percent of the total, that percentage reveals the full contractual charge even if the plan has not completed its payment

This approach allows you to calculate what was paid and what remains owed, providing the complete measure of recoverable damages under Howell.

Case Example: Kaiser and San Joaquin General Hospital

A Kaiser insured client received inpatient care at San Joaquin General Hospital. The recovery agent’s records reflected one hundred ninety seven thousand dollars in payments. In deposition, the Hospital PMQ confirmed that an additional eighty two thousand dollars remained owed under the applicable contract.

That balance had been referred to collections but was never recorded on the patient’s account. The actual value of Howell specials totaled two hundred eighty thousand dollars, increasing the client’s recoverable damages by more than eighty thousand dollars and substantially improving negotiation leverage.

When to Apply This Strategy

This strategy should be considered when:

• The provider has a contractual relationship with the health plan
• The charges were submitted to the plan for payment
• Posted payments appear incomplete or inconsistent with the cost share
• Collection efforts are ongoing but unreflected in the ledgers

Developing this issue through PMQ deposition and supplemental discovery often reveals significant hidden value that can transform case valuation and client recovery.

New Educational Module Now Available

Lien Project Network has released a new educational module titled Hidden Past Medical Special Damages that is designed to help plaintiff attorneys identify, prove, and assert additional damages grounded in contractual payment obligations.

Explore the module and learn more at Lien Project Network

Explore More Resources with Lien Project Network

For a deeper dive into lien resolution strategies, settlement planning, and reimbursement challenges, explore our educational modules. Lien Project Network serves as a trusted resource for plaintiff attorneys, providing insights on financial planning, public benefits, and structured settlements in the context of lien management.

Need Assistance? Work With The Lien Project, PC

If you need expert legal assistance in navigating lien resolution, reimbursement claims, or settlement planning, our team at The Lien Project, PC is ready to help. As an LPN member, you earn credits that can be applied toward lien reduction and resolution services provided by The Lien Project, PC, allowing you to offset up to $900 per year. Your investment in continuing education through Lien Project Network not only enhances your lien resolution skills but also reduces the cost of engaging legal experts when needed.

Schedule a Consult today to see how we can help maximize your client’s recovery.