                  IN THE COURT OF APPEALS OF TENNESSEE

                                     AT KNOXVILLE
                                                                               FILED
                                                                              January 27, 2000

                                                                             Cecil Crowson, Jr.
                                                                            Appellate Court Clerk
                                                   E1999-02271-COA-R3-CV
KELVIN JACKSON,                              ) C/A NO. 03A01-9906-CV-00198
                                             )
       Plaintiff-Appellee,                   ) KNOX CIRCU IT
                                             )
vs.                                          ) HON. DALE C. WORKMAN,
                                             ) JUDGE
EDWARD W. SUNKENBERG,                        )
                                             ) REVERSED AND REMANDED
       Defend ant-App ellant.                ) FOR A NEW TRIAL




T. SCOTT JONES, BA NKS & JON ES, Knoxville, for Plaintiff-Appellee.

R. KR EIS W HITE, A DAIR , SCHU ERM AN & WHIT E, Brentw ood, for D efendan t-
Appellan t.



                                       O P I N IO N


                                                             Franks, J.



               In this action f or damag es for injuries sustained in a motor ve hicle

accide nt, a jury aw arded p laintiff $ 10,000 .00 as d amag es, and d efend ant has appea led.

               The issue on appeal is whether the Trial Judge properly applied

Tennessee Code Annotated §24-5-113 to the facts of this case. The Statute provides

in part:

               (a)(1) Proof in any civil action that med ical, hospital or doctor bills were
               paid or incurred because of any illness, disease, or injury may be
               itemized in the complaint or civil warrant with a copy of bills paid or
               incurred attached as an exhibit to the complaint or civil warrant. The
               bills itemized and attached as an exhibit shall be prima facie evidence
               that the bills so paid or incurred were necessary and reasonable.

               (2) This sec tion shall app ly only in personal in jury actions brou ght in
               any court by injured parties against the persons responsible for causing
               such injuries.

               (3) This prima facie presumption shall apply to the medical, hospital and
               doctor bills itemized with copies of bills attached to the complaint or
               civil warrant provided, that the total amount of such bills does not
               exceed the sum of two thousan d five hundred d ollars ($2,500).

               ...
               This action was originally filed in General Sessions Court for Knox

County by filing a civil warrant with attached itemized copies of plaintiff’s medical

bills, which totaled $3,356.50. Plaintiff obtained a judgment in Sessions Court and

the defen dant timely app ealed the ca se to the Circ uit Court. In th e Circuit C ourt,

defendant argue d that plaintiff’s medical bills should no t be introduced withou t expert

proof , becau se they ex ceede d $2,50 0.00, on the auth ority of the above -quote d statute .

The Trial Judge apparently ruled that the statute would apply up to $2,500.00 of the

bills, and that without competent proof, the plaintiff could not recover any amount

above that limit for his medical expenses.

               Plaintiff, throu gh his testimo ny, introduced a copy of a c hiropractic b ill

totaling $2,650.00 over the objection of the defendant. At the time the bill was

introduced, the Trial Judge instructed the jury that they would later be instructed

regarding “ the medic al bill presum ption” and that said presu mption on ly extended to

the sum of $2,50 0.00, and that without fu rther proof plaintiff could no t recover more

than $2,500.00 for his medical bills.

               At the con clusion of th e proof, the Trial Judge charged th e jury and told

the jury again tha t the statutory presu mption of reasonab leness and necessity only

applied up to $2,500.00. He further instructed that the presumption could be rebutted

by evide nce of fered b y the defe ndant.

               On appeal, defendant insists that since the plaintiff’s total medical

expenses exceeded $2,500.00, plaintiff should not have been able to utilize the

presumption created by the statute, and that under the strict construction of the statute,

the bill which totals $2,650.00 was improperly admitted without expert medical

testim ony.

               This Co urt has prev iously recogn ized that plain tiffs are requ ired to

present competent proof regarding the reasonableness and necessity of their medical

expen ses. Hogan v. Reese, 1998 WL 430627 (Tenn. Ct. App. 1998). In Hogan this

Court addressed the question regarding the applicability of T.C.A. §24-5-113 by

stating:

               At common law, reasonableness and necessity of medical expenses
               allegedly caused by the defendant are elements constituting a part of the
               burden of proof resting upon the plaintiff. To relieve this burden on
               small claims, the legislature by chapter 734 of the Public Acts of 1978

                                               2
               created a prima facie presumption of necessity and reasonableness under
               certain conditions.

               This act of the General Assembly is presently codified as T.C.A. §24-5-
               113(a)(1)(2 ) and (3). Th e next cha nge in the p resent codif ication as to
               the 1978 act was chapter 481 of the Public Acts of 1981 raising the
               original $500 maximum amount to the present maximum amount of
               $2,500.

As Hogan notes, the statu te simply mea ns that plaintiff s are not fo rced to bring in

expert medical proof of reasonableness and necessity where “the total amount of such

bills does not exceed the sum of Two Thousand Five Hundred Dollars ($2,500.00).”

In this case, while plaintiff said he was only claiming $2,500.00 in medical expenses,

the “total” of the bill he sought to introd uce at trial clearly exceeded $2,500.00 . In

West v. Hudson, 1988 WL 122431 (Tenn. Ct. App. 1988), (permission to appeal

denied by the Supreme Court March 27, 1989), this Court explained that when a

plaintiff has medical bills totaling more than $2,500.00, plaintiff m ust present expert

medical testimony regarding the reasonableness and necessity of those charges. It was

therefore e rror for the T rial Judge to a dmit into ev idence plain tiff’s medic al bills

which ex ceeded th e $2,500.0 0 total.

               The jury instruc tion given b y the Trial Cou rt was erron eous. No t only

was the medica l bill improperly admitted without com petent proof, the Trial Co urt

instructed the jury that they had to presume that $2,500.00 of plaintiff’s medical

expenses were reasonable and necessary. The Trial Court’s instruction in this case

regard ing the m edical b ills was c learly erron eous an d was mislead ing to th e jury. See

Ladd by Ladd v. Honda Motor Co. Ltd., 939 S .W.2d 83, 94 ( Tenn . Ct. Ap p. 1996 ).

Accord ingly, we vac ate the Trial C ourt’s judgm ent and rem and for a n ew trial.

               The cost of the appeal is assessed to plaintiff.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.

                                               3
___________________________
D. Michael Swiney, J.




                              4
