Beware Of Plaintiff’s Stipulation To Waive Past Medical Expenses!

Plaintiff’s counsel informs you plaintiff is waiving his or her claim for past medical expenses and asks for your stipulation. At first blush it sounds like a winning proposition. It significantly reduces the damages exposure to your client. It eliminates the need for expert testimony on the cost and reasonable value of plaintiff’s past medical treatment. It streamlines discovery and trial preparation, resulting in a cost savings for your client. But should you stipulate? Maybe not.

Waiver of Past Medical Expenses May Have Unintended Consequences

Evidence on issues that have been removed from the jury’s consideration by stipulation or an admission in the pleadings is irrelevant. (Fuentes v. Tucker (1947) 31 Cal.2d 1, 7; People v. Derello (1989) 211 Cal.App.3d 414, 425-426; Heppler v. J.M. Peters Co., Inc. (1999) 73 Cal.App.4th 1265, 1286.) Of course, irrelevant evidence is inadmissible. (Evid. Code § 350.) Your stipulation may result in the exclusion of evidence that is otherwise relevant and highly probative.

Defendants often stipulate to liability and argue evidence of the defendant’s culpable conduct is therefore irrelevant and inadmissible. This may prevent plaintiff from parading in witness after witness to testify about your client’s wrongful conduct and help limit the verdict.

The plaintiff’s bar is increasingly employing a similar tactic by waiving past medical expenses. Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 C.4th 541 and its progeny limit the amount an insured plaintiff may recover for past medical expenses to the amount accepted as payment in full from the plaintiff’s insurance company. This is in stark contrast to the significantly larger amount billed by the healthcare providers. Plaintiffs are waiving past medical expenses and arguing the lesser amounts paid are irrelevant, not only on the issue of past medical expenses, but for any purpose, including future medical expenses.

Consider the following example. Plaintiff is injured in a car accident. Plaintiff is treated at the emergency room and has knee surgery. The total amount billed is $150,000. The hospital accepts $50,000 as payment in full from plaintiff’s insurer. Plaintiff presents expert testimony plaintiff will require a future knee surgery costing $500,000.

Defendant seeks to demonstrate the $500,000 figure is outrageous by introducing the $50,000 amount paid for the prior surgery. Plaintiff argues past medical expenses were waived by stipulation, thus evidence of the $50,000 amount paid is irrelevant. If the judge agrees, your stipulation has unintendedly robbed you of perhaps your most probative and persuasive evidence of the reasonable value of future treatment.

Evidence of Stipulated or Admitted Facts is Admissible Where the Stipulation or Admission is Equivocal, Limited in Scope, or Designed to Deprive the Opponent of the Legitimate Force and Effect of Material Evidence

You may have already stipulated to waive past medical expenses. Or the Court may determine past medical expenses are irrelevant based on plaintiff’s unilateral waiver. Does that mean amounts paid for past medical treatment are wholesale inadmissible? Not necessarily.

Ephemeral or equivocal admissions do not render the subject matter irrelevant. (Thor v. Boska (1974) 38 Cal.App.3d 558, 562.) Defendants can argue plaintiff’s 11th hour waiver, failure to amend the pleadings, or references to past medical treatment for other purposes (e.g. to prove pain and suffering or causation), are inconsistent with the claimed waiver.

Similarly, the introduction of evidence of admitted facts is permissible in cases where the admission is ambiguous in form or limited in scope or where, during the trial of a case, a party seeks to deprive the opponent of the legitimate force and effect of material evidence by the bald admission of a probative fact. (Fuentes v. Tucker (1947) 31 Cal.2d 1, 7.) In seeking to prevent evidence of the reasonable value of future treatment, this is precisely what plaintiffs are seeking to do. Defendants should not be deprived of the legitimate force and effect of the amount paid for similar past treatment.

Further, defendants should argue evidence of past medical treatment is relevant and admissible for other purposes, such as impeaching the plaintiff’s credibility, the basis of plaintiff’s expert’s opinions, and to prove the reasonable value of future medical treatment.


Think twice about stipulating to waiver of past medical expenses. And beware of plaintiff’s attempts to do so. You may unknowingly render your best evidence irrelevant. However, with effective advocacy and a sympathetic trial judge you may be able to overcome the waiver and instead use it to your client’s advantage.

ABOUT THE AUTHOR: Reece Román is an associate at Tyson & Mendes LLP. He specializes in personal injury, employment, professional liability, and business litigation. Contact Reece at (858) 263-4137 or