State v. J. M. E. , 299 Or. App. 483 ( 2019 )

483
Argued and submitted December 19, 2017, supplemental judgment vacated and
remanded September 18, 2019
In the Matter of J. M. E.,
a Youth.
STATE OF OREGON,
Respondent,
v.
J. M. E.,
Appellant.
Marion County Circuit Court
15JU07122; A162969
451 P3d 1018
Youth appeals a supplemental judgment ordering him to pay restitution after
causing physical injury to the victim. Youth argues that the juvenile court erred in
ordering restitution for a hospital bill in the absence of evidence that the bill was
reasonable. The state disagrees, arguing that the Crime Victim Compensation
Program (CVCP) payment of the medical bill in question is proof that the bill was
reasonable because the CVCP is under a statutory duty to pay only reasonable
expenses. Held: The juvenile court erred. Payment of medical bills in accordance
with the statutory and regulatory scheme governing the CVCP does not, in the
absence of other evidence, support the determination that those bills are reason-
able. Because, in this case, the state produced no other evidence as to the rea-
sonableness of the medical bill in question, the trial court erred in including that
portion of the victim’s medical expenses in the supplemental judgment.
Supplemental judgment vacated and remanded.
Heidi O. Strauch, Judge pro tempore.
George W. Kelly argued the cause and filed the brief for
appellant.
Sharia Mayfield, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Greg Rios, Assistant Attorney General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
DEHOOG, P. J.
Supplemental judgment vacated and remanded.
484 State v. J. M. E.
DEHOOG, P. J.
Youth appeals a supplemental judgment ordering
him to pay restitution, arguing that the juvenile court erred
in ordering restitution for a hospital bill in the absence of
evidence that the bill was reasonable. The state disagrees,
relying on the fact that the Crime Victim Compensation
Program (CVCP)—which is under a statutory duty to pay
only reasonable expenses—paid the medical bill in question
as proof that the bill was reasonable. We agree with youth
that, on this record, there is insufficient evidence to prove
the hospital bill’s reasonableness. The court, therefore, erred
in including that amount in the restitution award, and we,
therefore, vacate and remand the supplemental judgment.
The relevant facts are undisputed. The court found
that evidence established, beyond a reasonable doubt, that
youth committed acts which, had youth been an adult, would
have constituted fourth-degree assault. Specifically, youth
punched the victim in the nose, causing him physical injury.
After a hearing, the court ordered youth to pay $13,065.49
as restitution for the victim’s medical expenses. That award
was the sum of several different medical expenses that the
victim incurred. Youth, however, challenges only a portion of
that restitution award: $4,745.49 for treatment at Silverton
Hospital. CVCP paid that bill.
The state did not present any evidence at the resti-
tution hearing as to the reasonableness of the medical bill
incurred at Silverton Hospital.1 Instead, in closing, the state
argued:
“And I would also argue that Crime Victim’s Compen-
sation, just like insurance companies, are not going to pay
more than what they feel is necessary. It’s in their best
interest to only pay amounts that they deem reasonable.
And so they did not pay the full amount for the hospital bill;
however, the hospital bill is not asking for the difference in
that.
1
The state did present evidence as to the reasonableness of the other med-
ical bills incurred. For example, two witnesses from the billing departments of
two other treatment providers explained how their offices decide what charges to
impose based on standards in the medical community and why those charges are
reasonable.
Cite as 299 Or App 483 (2019) 485
“But although I didn’t have anyone to testify for Crime
Victim Compensation, I would argue that they would only
pay what they feel is reasonable from the information that
they’ve received.”
Youth disagreed with the state, focusing on the state’s con-
cession that it presented “no evidence of any kind” as to the
reasonableness of the Silverton Hospital bill. Ultimately,
the court agreed with the state, explaining:
“With regard to the Crime Victim’s Compensation, I do
find [the state’s] argument persuasive that the Crime
Victim’s Compensation Fund does have an incentive to pay
only reasonable expenses. There’s certainly no guarantee
they will ever get that back, although clearly today they’re
trying to do so. But even if I order restitution it may take
a very long time for that actually to come back. So realisti-
cally speaking, I think the charges accepted by the Crime
Victim’s Fund are reasonable.”
Youth appeals the resulting supplemental judgment.
On appeal, youth argues that the court erred
in imposing the $4,745.49 restitution for the treatment
at Silverton Hospital, because the state failed to produce
any evidence of the hospital bill’s reasonableness beyond
the bill itself. In response, the state argues that proof that
CVCP paid the bill “presumptively establishes” that bill’s
reasonableness.
We review orders of restitution for errors of law.
State v. McClelland, 278 Or App 138, 141, 372 P3d 614 (2016),
rev den, 360 Or 423 (2016). “We are bound by the trial court’s
factual findings if they are supported by any evidence in the
record[.]” State v. Pumphrey, 266 Or App 729, 730, 338 P3d
819 (2014), rev den, 357 Or 112 (2015).
Restitution and the process by which the state can
seek to recover it against a youth offender are governed by
statute. Specifically, ORS 419C.450(1)(a) provides, in rele-
vant part:
“It is the policy of the State of Oregon to encourage and
promote the payment of restitution and other obligations
by youth offenders as well as by adult offenders. * * * If the
court finds from the evidence presented that a victim suf-
fered injury, loss or damage, in addition to any other sanc-
tion it may impose, the court shall:
486 State v. J. M. E.
“(A) Include in the judgment a requirement that the
youth offender pay the victim restitution in a specific
amount that equals the full amount of the victim’s injury,
loss or damage as determined by the court[.]”
Although ORS 419C.450 does not define “resti-
tution,” ORS 419A.004(26)2 provides that, as used in the
Juvenile Code, “ ‘[r]estitution’ has the meaning given that
term in ORS 137.103.” In turn, under ORS 137.103(3), res-
titution is defined, in relevant part, as the “full, partial or
nominal payment of economic damages to a victim.”
We held in State v. E. V., 240 Or App 298, 246
P3d 78 (2010), rev den, 350 Or 130 (2011), that, by making
the Criminal Code’s definition of “restitution” part of the
Juvenile Code, the legislature had also incorporated “the
whole definition, including the statutory definitions of its
component parts.” In applying the Criminal Code definition
of “victim,” ORS 137.103(4), to the youth in that case, we
reasoned that,
“[t]o conclude otherwise would be inconsistent with the leg-
islature’s expressed intent that the term ‘restitution’ has
the same meaning in the criminal and juvenile codes—that
is, ‘restitution’ would mean payment of economic damages
to one group in the Criminal Code, and payment of eco-
nomic damages to a different group in the Juvenile Code.”
E. V., 240 Or App at 302. We reach the same conclusion
regarding another component of the statutory definition
of restitution—the term “economic damages.” Like “vic-
tim,” the term “economic damages” is a component part of
the statutory definition of “restitution.” Specifically, ORS
137.103(2) provides (with one exception not relevant here)
that the term “economic damages” has the same meaning
given that term in ORS 31.710. ORS 31.710(2)(a), in turn,
defines “economic damages,” in relevant part, as: “objec-
tively verifiable monetary losses including but not limited to
reasonable charges necessarily incurred for medical, hospi-
tal, nursing and rehabilitative services and other health care
services * * *.” (Emphasis added.) Applying that meaning of
economic damages and the cases construing that term to
2
At the time of youth’s adjudication, ORS 419A.004(26) was numbered ORS
419A.004(23), but it was otherwise identical. Because it has no bearing on the
merits of this case, we use that provision’s current numbering in this opinion.
Cite as 299 Or App 483 (2019) 487
youth’s case, we conclude that the juvenile court erred in
awarding restitution for the victim’s treatment at Silverton
Hospital.
As we have previously explained, “ ‘there are three
prerequisites to an order of restitution: (1) criminal activ-
ities, (2) economic damages, and (3) a causal relationship
between the two.’ ” McClelland, 278 Or App at 141 (quoting
Pumphrey, 266 Or App at 733). Further, for hospital or med-
ical expenses to qualify as recoverable economic damages,
the state must prove that the cost of such services was rea-
sonable. State v. Campbell, 296 Or App 22, 27, 438 P3d 448
(2019). In that regard, “submission of a hospital bill, with-
out more, is insufficient proof for recovery of ‘reasonable’
hospital or medical services. Some additional testimony or
evidence is required to support the reasonableness of the
bill for the hospital or medical services.” McClelland, 278 Or
App at 144. We have recently clarified, however, that “the
market rate is a reasonable amount for a victim to recover
for medical expenses.” Campbell, 296 Or App at 30. And, in
that case, we further concluded that the fact that a publicly
funded health insurer has paid a medical bill is “some indi-
cation of the charge’s reasonableness.” Id. at 31-32.
In Campbell, a witness testified that the amounts
that were paid by CareOregon—a publicly funded health
insurer—were at or below the usual and customary rate for
those services in that market. 296 Or App at 32. Based on
that testimony, we concluded that the record contained suffi-
cient evidence that the requested restitution to CareOregon
was reasonable. Id. After reaching that conclusion, however,
we went on to say that “[o]ur conclusion is required for the
added reason that the payments were made by a publicly
funded health insurer who, by design, can only make pay-
ments at reasonable rates.” Id. That is because of the applica-
ble statutory and regulatory scheme. See ORS 414.065(1)(a)
(requiring the Oregon Health Authority to set “[r]easonable
fees, charges, daily rates and global payments for meeting
the costs of providing health services to an applicant or
recipient” as well as “[r]easonable fees for professional med-
ical and dental services which may be based on usual and
customary fees in the locality for similar services” (empha-
ses added)).
488 State v. J. M. E.
At first blush, the state’s argument in the present
case may appear similar to the argument that we accepted
in Campbell. Like CareOregon, CVCP is subject to a statu-
tory and regulatory scheme. Specifically, CVCP is governed
by ORS 147.035(2)(a), which states that it may provide com-
pensation for “reasonable medical and hospital expenses.”
(Emphasis added.) See also OAR 137-076-0020(3) (defin-
ing “reasonable expenses” for purposes of ORS 147.035).3
Despite that superficial similarity, however, we for two rea-
sons are not convinced that the logic applied in Campbell is
appropriate in this case. First, the underlying statutory and
regulatory scheme was not the only evidence in Campbell
of the bill’s reasonableness. Rather, a witness testified that
the amounts that CareOregon paid were at or below the
usual and customary rate for those services in that mar-
ket. Campbell, 296 Or App at 32. In contrast, in the pres-
ent case, the state presented no evidence about the Silverton
Hospital bill beyond the bill itself. No witness testified that
the amount charged—or the amount subsequently paid by
CVCP—was at or below the market rate for those services,
nor was there any other evidence as to the reasonableness of
the medical bill.
Second, the statutory and regulatory scheme gov-
erning publicly funded health insurers is both more compre-
hensive and prescriptive than that which governs CVCP. As
Campbell explained:
“In [determining the usual and customary fees in the
locality for similar services], the Oregon Health Authority
must consult with the Medicaid Advisory Committee whose
members include, in part, a licensed physician, health
care providers, two members of health care consumer
groups that include Medicaid recipients, and two Medicaid
3
OAR 137-076-0020(3) specifically provides:
“For purposes of ORS 147.035, reasonable medical expenses shall be lim-
ited to ambulance expenses and expenses for necessary services provided
by a Medical Practitioner. Medical treatment provided by any other medical
provider may be reimbursable if at the time treatment began it was approved
by and provided under the supervision of a Medical Practitioner. Medical
treatment provided by any other medical provider without a referral from a
Medical Practitioner may be compensated for up to 5 visits within 90 days
from the date of the first crime-related visit by the victim, at the discretion
of the Department, if the medical provider is licensed in Oregon under the
provisions governing that provider’s profession.”
Cite as 299 Or App 483 (2019) 489
recipients. ORS 414.25; ORS 414.211. By legal mandate,
the state’s payment rates are intended to reflect the usual
and customary fees at or below the local market rate, tak-
ing into account what doctors, consumers, and other stake-
holders consider reasonable.
“[Further, f]ederal laws and regulations subject Oregon
payment rates to additional oversight.”
Campbell, 296 Or App at 32-23. After reviewing the statu-
tory and regulatory scheme that governs CVCP, ORS 147.035
(2)(a) and OAR 137-076-0020(3), we cannot conclude that it
is comparable to that which governs publicly funded health
insurers. The complex statutory and regulatory scheme in
Campbell is what compelled us to conclude that the amounts
paid by a publicly funded health insurer are indicative of
the reasonableness of that amount. And, although CVCP
appears to be under a statutory duty to provide compensa-
tion for only those medical bills that it deems “reasonable,”
there is simply not the same level of oversight or direc-
tion as to what that “reasonable” charge may be. That is,
in the publicly funded health insurer context, the Oregon
Health Authority must consult with the Medicaid Advisory
Committee to set rates that are at or below market value
while also conforming to federal statutes and regulations. In
the CVCP context, on the other hand, governing provisions
of law do not dictate how reasonable medical fees are to be
determined, who is to participate in that determination, or
what relationship, if any, they must bear to prevailing mar-
ket rates. Accordingly, there is simply no evidence here that
CVCP’s duty under ORS 147.035(2)(a) is comparable to that
imposed under the statutory and regulatory scheme that we
considered in Campbell.
Without any evidence as to the reasonableness of
the Silverton Hospital bill paid by CVCP or other persua-
sive argument regarding CVCP’s duty to pay only reason-
able medical bills, we conclude that the trial court erred in
including that portion of the victim’s medical expenses in
the supplemental judgment.
Supplemental judgment vacated and remanded.