Submitted November 5, 2018.
County Circuit Court 17CR11850. Thomas M. Hart, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Neil F. Byl, Deputy Public Defender, Office of Public Defense
Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and James, Judge, and Haselton,
Summary: Defendant pleaded guilty to sexually abusing J, a
child under the age of 14. The sentencing court imposed $2,
429.94 in restitution for medical expenses incurred by J as a
result of defendant's crimes. Defendant appeals that
award, contending that, under State v. McClelland,
278 Or.App. 138, 372 P.3d 614, rev den, 360 Or. 423
(2016), there is insufficient evidence to support a finding
that the claimed medical expenses were reasonable. The state
argues that, because there is evidence that the medical
expenses were paid at discounted rates, it is inferable that
those expenses were reasonable. Held: The trial
court erred in awarding restitution because none of the
state's evidence showed how the amounts paid for J's
medical expenses corresponded to market rates. See State
v. J. M. E., 299 Or.App. 483, 487, P.3d (2019).
and remanded for resentencing; otherwise affirmed.
Or.App. 49] LAGESEN, P. J.
sexually abused J, a child under the age of 14. For that
conduct, he was convicted, pursuant to a guilty plea, of one
count of second-degree sodomy, ORS 163.395, and two counts of
first-degree sexual abuse, ORS 163.427. The sentencing court
imposed $2, 429.94 in restitution- $2, 000.56 payable to
Willamette Valley Community Health (WVCH) and $429.38 payable
to the Department of Human Services (DHS)-for amounts those
entities had paid to cover medical expenses incurred by J as
a result of defendant's crimes. On appeal, defendant
challenges the award of restitution for the medical expenses,
contending that, under State v. McClelland, 278
Or.App. 138, 372 P.3d 614, rev den, 360 Or. 423
(2016), there is insufficient evidence to support a finding
that the claimed medical expenses were reasonable. On review
for legal error, State v. Campbell, 296 Or.App. 22,
26, 438 P.3d 448 (2019), we reverse.
relevant historical and procedural facts are not disputed. In
support of the claim for restitution, the state introduced
evidence (in the form of records and testimony) of the
amounts that the providers billed for the medical services at
issue, and the amounts that WVCH and DHS paid for those
services. That evidence reflects that the amounts that WVCH
and DHS paid the providers were less- significantly so, in
some instances-than what the providers had billed. Although
the state called witnesses from both DHS and WVCH to testify
about the payments for which restitution was sought, and
those witnesses testified about the services covered by those
payments, the state elicited no testimony addressing how the
amounts paid related to the customary market rates for the
prescription and medical services covered by those payments.
the close of the evidence, defendant argued that the
state's evidence was insufficient under
McClelland to establish that the claimed medical
expenses were reasonable. The trial court rejected that
argument. With respect to the charges paid by WVCH, the court
noted that the exhibit reflected that WVCH paid for medical
services at a discounted "contract amount" that the
court determined was "reasonable within the
circumstances." The court [301 Or.App. 50] reached a
similar conclusion regarding the amounts paid by DHS,
observing that they were less than the amounts billed. On
appeal, defendant reiterates his contention that the evidence
presented was insufficient to support a finding that the
amounts paid for the victim's medical expenses were
reasonable, as required under McClelland.
the state seeks restitution for amounts paid for medical
charges, it must prove that the charges were reasonable. ORS
137.103(2); ORS 31.710; McClelland, 278 Or.App. at
143-44. As we recently explained in Campbell-
decided after the trial court ruled in this case-a medical
charge is reasonable if it is at (or below) the market rate
for the services, drugs, or other medical items provided:
"[T]he market rate is a reasonable amount for a victim
to recover for medical expenses." 296 Or.App. at 30.
Medical bills, standing alone, are insufficient to prove that
the charges reflected therein are at market rate (or below)
and, therefore, reasonable for purposes of the restitution
statutes. State v. J. M. E., 299 Or.App. 483, 487,
___P.3d ___(2019). Rather, "[s]ome 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.
the state argues that it did not rely on medical bills alone
to prove the reasonableness of the amounts paid, as was the
case in McClelland, but, instead, relied on evidence
that the bills not only were paid, but were paid at
discounted rates. According to the state, it is inferable
from that evidence that the amounts sought on behalf of DHS
and WVCH were reasonable. But none of the evidence introduced
by the state demonstrates how the amounts billed by the
victim's medical providers, or the amounts subsequently
paid by DHS and WVCH, correspond to market rates. In J.
M. E., we concluded that a similar lack of evidence
about how charges for medical services, or the amounts paid
for those services, corresponded to market rates, meant that
the state failed to prove that the medical expenses it was
seeking in restitution were reasonable. 299 Or.App. at 488.
Although it is true that the amounts paid by DHS and WVCH
were discounted-substantially in some instances- from the
amounts billed, the fact of the discount, alone, does not
demonstrate that the amounts paid were at or below [301
Or.App. 51] market rates. As we have explained, "the
factfinder cannot be presumed to know what a ...