Warren v. Ballard , 266 Ga. 408 ( 1996 )

Benham, Chief Justice.

Although these two cases were not tried together in the tried court and were not heard together in the Court of Appeals, we granted certiorari in both to consider the same question, namely, when may a tort defendant elicit testimony regarding insurance coverage for purposes of impeachment. Ballard v. Warren, 217 Ga. App. 23 (1) (456 SE2d 589) (1995); Luke v. Suber, 217 Ga. App. 84 (1) (456 SE2d 598) (1995).

1. We begin with a discussion of the facts of each case, as well as the Court of Appeals’ holdings.

(a) Warren v. Ballard centers around a three-vehicle accident which occurred on June 11, 1990, on 1-24 in Dade County, between a car driven by Warren, a van driven by Ballard and a tractor-trailer owned by defendant Foster Trucking Company and operated by defendant Walls. At trial, Ballard admitted that he caused the accident by pulling from a road shoulder onto 1-24 into the path of the other vehicles. Thus, the main issue at trial was that of damages, and the jury awarded Warren a verdict of $78,500 from Ballard.

During the course of the trial, Warren testified concerning the amount of her physical therapy costs: “I don’t know the exact total. I’d have to look at figures to remember. I just know that I have a total of medical bills that is around $7,000. ... I had to pay for my medical bills. And just to be driving down the road one day and all of a sudden my life turned upside down and have to face these medical bills and . . . .” She also stated: “And I’m still paying for these medical bills on a payment plan right now because I can’t, of course, pay all at one time. So I’m paying monthly right now for the medical bills.” Warren then read to the jury a list of her medical bills which totaled $6,287.22. Warren’s husband testified: “The interest I have is that ultimately all payment from this accident has fallen on us. And the interest I have is to be able to pay those bills and replace her car which has all come back on us as a family.” After the testimony, Ballard’s counsel, in a side bar conference with the trial judge, sought to be allowed to cross-examine Warren and her husband as to whether they had received payments from State Farm, their insurance carrier. The trial court prohibited the defense attorney from inquiring about insurance benefits.

Although recognizing that a trial court has the discretion to balance the probative value of collateral source evidence against its prejudicial impact, the Court of Appeals held that the trial judge should have allowed cross-examination concerning collateral source evidence because Warren and her husband had given the jury a false impression that they incurred harm and hardship which they had not and in doing so had implied that they had no insurance coverage. Ballard v. Warren, 217 Ga. App. at 24-25.

(b) In Suber v. Luke, a medical malpractice case, Marcus Luke testified on direct examination about medical bills in excess of $80,000 incurred as a result of Dr. Suber’s alleged negligence in perforating Karen Luke’s colon during a cesarean section delivery. Luke later testified that the baby, who was unharmed, had stayed in the hospital with his wife during her recovery period. In response to the question, “And what was your understanding of that?,” Luke replied: “Well whenever I talked to a couple of doctors and nurses, they told me don’t worry about it,. . . it’s best that the baby stays here,... I told them, I said, T don’t think I can afford to keep the baby in the hospital for a month.’ And they said don’t worry about it.” Luke was then asked whether he had received a bill for the baby’s stay in the hospital. He responded, “Yes, sir. And like I started to say, I didn’t worry about it until they sent me a bill on it.” Suber did not object to this testimony, but on cross-examination, sought to impeach it by establishing that Luke had medical insurance which paid the bills to which he referred. Suber’s attorney contended that Luke’s testimony had “opened the door” for proof of health insurance coverage. After discussion with counsel, the trial judge concluded that Luke’s testimony could be impeached by proof of insurance coverage. The trial resulted in a jury verdict for Suber.

The Court of Appeals reversed and granted a new trial, holding that Luke’s testimony did not “open the door” and that the prejudicial effect of admitting the evidence outweighed its relevancy for purposes of impeachment.

2. We turn now to a consideration of the general proposition whether collateral source evidence is admissible for impeachment in a case in which the plaintiff testifies to anxiety about payment of medical bills. We note that impeachment by evidence of collateral sources is only allowed if the false testimony is related to a material issue in the case. Waits v. Hardy, 214 Ga. 495, 496 (105 SE2d 719) (1958); Mann v. State, 124 Ga. 760 (53 SE 324) (1905). The question, then, is whether testimony regarding anxiety over payment of medical bills relates to a material issue. While evidence of the amount of medical bills may be admissible on a claim of pain and suffering to show the seriousness of the injury (see Melaver v. Garis, 110 Ga. App. 267 (138 SE2d 435) (1964)), we are aware of no authority which permits a recovery for anxiety, agony, or worry over the payment of medical bills. Since there can be no recovery for such anxiety, testimony concerning it does not relate to a material issue. That being so, there can be no impeachment of that testimony. Waits v. Hardy, supra. To the extent that Patterson v. Lauderback, 211 Ga. App. 891 (440 SE2d 673) (1994), and Moore v. Mellars, 208 Ga. App. 69 (430 SE2d 179) (1993), can be read to hold otherwise, they are overruled.

In neither of these appeals did the testimony relate to a material issue. Therefore, the defendant in neither case was entitled to impeach the testimony with collateral source evidence. The defendant is required in such circumstances to object to testimony regarding concern about payments of medical bills. Upon such objection, the trial court is obliged to exclude the testimony and, if requested, give curative instructions. In appropriate cases, other sanctions are available, such as rebuke of counsel, contempt of court, or even a mistrial with appropriate costs cast upon the plaintiff. The failure of the defendants in these cases to object constitutes waiver of the inadmissibility of the testimony. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160) (1983); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976). It follows that the Court of Appeals erred in ruling that the collateral source evidence was admissible in Warren, but was correct in ruling, albeit for an incorrect reason, that the evidence was not admissible in Luke.

Judgment reversed in Case No. S95G1171.

All the Justices concur, except Fletcher, P. J., and Sears, J., who dissent.

Judgment affirmed in Case No. S95G1212.

All the Justices concur, except Fletcher, P. J., and Sears, J., who concur specially.