Litigators in Ohio are generally familiar with the Ohio Supreme Court’s holding in Robinson v. Bates, and the impact that decision has had on trial tactics, strategy and presentation on the issue of a plaintiff’s damages in a civil jury trial. The Robinson decision has even impacted the way personal injury claims are evaluated, negotiated and mediated. Following Robinson, the plaintiffs’ bar was generally hamstrung in their ability to “blackboard” inflated medical bills as evidence of the reasonable value of medical services.
The defense bar has always posited that precluding a defendant from introducing evidence of “write-offs” at trial creates both a windfall to plaintiffs, and a seemingly impenetrable barrier to the defense in limiting the amount of damages claimed. This is because plaintiffs would be awarded monetary damages from medical bills that were not accurate depictions of the amounts actually paid. This is the precise scenario the Ohio Supreme Court addressed in Robinson.
The Ohio Supreme Court, in Robinson v. Bates, 112 Ohio St.3d 17 (2006), specifically held that either the medical bill itself, or the amount actually paid can be admitted at trial to prove the value of medical services. The Court reasoned that allowing the introduction of “write-offs” did not violate the collateral source rule because the amounts written off are not considered payments of any benefit from a collateral source. Essentially, the Court found that allowing the admittance of either the medical bill or the amount actually paid provides the jury with the evidence necessary to determine what amount reasonably compensates the plaintiff for his or her damages.
Several special interest groups, including the Ohio Administration for Justice (OAJ), have sought to stymie the impact of Robinson by proposing legislation that seeks to overrule that case by adding language to Ohio Revised Code § 2317.421. This language specifically prohibits the introduction of amounts that are written off or waived by medical providers. Despite the fact that the Court in Robinson soundly determined that the introduction of “write-offs” did not implicate the collateral source rule, the OAJ contends that its proposed amendment will resolve the “confusion” in Ohio regarding the rule. Yet, any “confusion” that still exists will soon be resolved by the Ohio Supreme Court, which recently accepted for review Jaques v. Manton, 122 Ohio St.3d 1478 (2009). Essentially, the Court will decide whether Robinson applies to the codified collateral source rule. Regardless, the OAJ’s proposed amendment seeks to legislatively prohibit what Robinson allowed—the introduction of “write-offs” at trial.
Although OAJ contends that its proposed legislation will resolve the confusion in Ohio surrounding the collateral source rule, several interest groups on behalf of the defense bar have expressed opposition. Opponents of the proposed legislation contend that the amendment will be in conflict with O.R.C. § 2315.18(A)(2)(b), which defines economic loss in tort cases as “[a]ll expenditures for medical care or treatment...or accommodations as a result of an injury or loss to person or property that is subject of a tort action.” O.R.C. § 2307.011(C)(2) further defines “economic loss” as “[a]ll expenditures for medical care or treatment....” However, “write-offs” cannot be considered “expenditures” because they represent amounts that were never paid. As such, the amount of economic loss according to the statute cannot include the “write-off” amount.
Opponents of the legislation further posit that the amendment is contrary to the policy and purpose behind O.R.C. § 1751.60. Specifically, this statute provides that health care providers are not entitled to recover any amounts beyond those accepted for payment. However, OAJ contends that while health care providers cannot recover these amounts, plaintiffs should be able to. Yet, this double standard is clearly contrary to the legislative purpose behind § 1751.60, which is to prohibit anyone to recover those amounts beyond what was accepted for payment. Essentially, the proposed amendment requires juries to award the total amount billed despite the contrary language illustrated in § 1751.60.
The OAJ cites to the doctrine of being “made whole” to support its proposed amendment. The “made whole” rule, however, focuses on an injured party’s right to be fully compensated for his or her injuries. Prohibiting the introduction of “write-offs” does not just fully compensate an injured party; it creates a windfall for the plaintiff by allowing compensation for those medical bills that were never paid. Essentially, an injured party is able to inflate his or her damages in the presentation to a jury.
The implications of such an amendment in personal injury cases are substantial. If the proposed legislation becomes law, plaintiffs will be able to submit to the jury the total amount billed by the medical providers, without any consideration of the amount written off the bill. Since Robinson was decided in 2006, the defense bar has found comfort in the fact that juries would be presented with a more accurate picture of a plaintiff’s medical specials. If the amendments to R.C. § 2317.421 pass, defendants will be faced with that familiar pre-Robinson scenarios wherein plaintiffs are permitted to present evidence as to damages that do not actually exist; i.e. the inflated medical bills for which only a fraction was accepted for payment.
This is an issue which the defense bar will need to monitor closely given its impact on civil litigation and personal injury defense. For further information regarding the proposed amendments to R.C. §2317.421, the status of the Ohio Supreme Court’s decision in Jaques v. Manton, or other information regarding this article, please contact one of the members of our General Liability Practice Group listed below.
