Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and SUDDERTH, JJ.
consider whether the portion of a judgment rendered on a jury
verdict for past medical expenses must be reduced in light of
a health care provider's post-verdict, prejudgment
agreement to reduce its lien against the plaintiff's
recovery of the same. It does not. We will affirm.
Mark Sosa was hospitalized at John Peter Smith Hospital (JPS)
for approximately six days in late 2011 after being struck by
a taxicab that Appellant Jashim Uddin Ahmed was driving. Sosa
later sued Ahmed for negligence, seeking to recover damages
for the personal injuries that he had allegedly sustained.
During the jury trial that eventually ensued, the trial court
admitted a billing records affidavit in which JPS's
custodian of records affirmed that Sosa had incurred
necessary medical expenses in the reasonable amount of $61,
169.01. Consistent with the "Patient Account
Summary" attached to the affidavit, there was no
evidence adduced during trial that JPS had discounted,
adjusted, written off, or otherwise reduced the amount of
medical expenses that it had a legal right to recover from
Sosa. The jury ultimately found that both Ahmed and Sosa were
negligent, apportioned 55% of the negligence to Ahmed and 45%
to Sosa, and awarded Sosa damages in the total amount of $93,
169.01, which included $61, 169.01 for past medical expenses.
The trial court signed a final judgment that awarded Sosa
actual damages in the amount of $51, 242.96 ($93, 169.01 less
45%), plus pre- and post-judgment interest and costs.
subsequently filed a motion to modify the judgment and a
motion for new trial seeking a remittitur, arguing that civil
practice and remedies code section 41.0105 obligated the
trial court to reduce the jury's award for past medical
expenses from $61, 169.01 to $16, 909 because after trial,
but before the trial court had signed the final judgment,
JPS's "Medical Lien was significantly reduced to
$16, 909." The trial court denied Ahmed's requested
only issue, Ahmed argues that in light of JPS's agreement
to reduce its medical lien, the portion of the final judgment
that awards Sosa past medical expenses should reflect the
amount that he will actually pay-$16, 909.00-and not the
amount that JPS originally billed-$61, 169.01. He relies on
civil practice and remedies code section 41.0105, which
provides in relevant part that "recovery of medical or
health care expenses incurred is limited to the amount
actually paid or incurred by or on behalf of the
claimant." Tex. Civ. Prac. & Rem. Code Ann. §
41.0105 (West 2015) (emphasis added). "'[A]ctually
paid and incurred' means expenses that have been or will
be paid, and excludes the difference between such amount and
charges the service provider bills but has no right to be
paid, " e.g., amounts that have been written off.
Haygood v. De Escabedo, 356 S.W.3d 390, 396-97 (Tex.
2011). Ahmed's argument is unpersuasive for at least
19, 2015 letter that apparently evidences JPS's agreement
to reduce its lien is not part of the record. Although Ahmed
purported to attach the letter to both his motion to modify
and his motion for new trial, neither filing includes a copy
of the letter. Realizing this, Ahmed requested that the
clerk's record be supplemented with the letter, but no
supplemental clerk's record has been filed with this
court. Ahmed included the letter in the appendix to his
brief, but it is axiomatic that we may not consider a
document cited in a brief and attached as an appendix if it
is not formally included in the record on appeal. See
Greystar, LLC v. Adams, 426 S.W.3d 861, 864-65 (Tex.
App.-Dallas 2014, no pet.); see also Tex. R. App. P.
34.1 (providing that the appellate record consists of the
clerk's record and, when necessary, the reporter's
record). As the letter is not part of the record on appeal,
we cannot consider it.
argument is also flawed because he improperly conflates a
reduction in JPS's lien with a reduction in the
underlying debt owed JPS. A debt is "a specific sum of
money due by agreement or otherwise." Debt,
Black's Law Dictionary (10th ed. 2014). A lien, by
contrast, represents a "legal right or interest that a
creditor has in another's property, lasting usu[ally]
until a debt or duty that it secures is satisfied."
See id. at Lien. By agreeing to reduce its
lien, JPS did not simultaneously write off the difference
between the portion of the debt that was originally secured
by the lien and the portion that remained secured after the
reduction; the $61, 169.01 debt is simply undersecured.
even if we indulged Ahmed's argument and treated
JPS's lien reduction as a debt reduction, section 41.0105
would not require a different outcome because unlike in
Haygood, in which the health care provider agreed to
reduce the plaintiff's medical expenses before trial, in
this case, there was no evidence that JPS had agreed to write
off any part of the $61, 169.01 that Sosa owed for medical
expenses and that JPS had a "[t]otal legal right to be
paid." 356 S.W.3d at 392. Indeed, it was not until
after trial that JPS agreed to reduce its lien.
Lamenting a violation of the constitutional right to trial by
jury, the Haygood majority expressly disapproved of
a procedure whereby the trial court was tasked with the
responsibility of reducing the plaintiff's recovery of
past medical expenses based on the defendant's
post-trial presentation of evidence that part of the
plaintiff's medical expenses was not recoverable under
section 41.0105. Id. at 399. Thus, sustaining
Ahmed's requested relief would require us to engage in a
procedure that the supreme court has already rejected as
constitutionally unsound. We, of course, decline to do so.
Cf. Sabine Offshore, Serv. Inc. v. City of Port
Arthur, 595 S.W.2d 840, 841 (Tex. 1979) ("The Court
of Civil Appeals should not have based its judgment upon
evidence contained in affidavits not a part of the trial
trial court did not err by denying Ahmed's requests to
reduce Sosa's damages for past medical expenses.
Accordingly, we overrule his only ...