112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006).

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1 I. ROBINSON V.BATES, 112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006). A. Landlord-tenant case In Hamilton County, Ohio, Plaintiff tenant sued her landlord for personal injuries caused when she broke a bone in her foot after falling in the driveway. Plaintiff alleged that the uneven slab of concrete in the driveway was a hazard negligently exposed by the landlord s repairmen. Medical bills were presented in the amount of $1,919, but Plaintiff stipulated that the insurance company negotiated the amount of $1, as payment in full. 1. Plaintiff s proof of medical damages was limited by trial court to amount actually paid for treatment. The trial court refused to allow Plaintiff to even admit the original bills into evidence. 2. Trial Court granted a directed verdict, finding that Plaintiff had not established that Defendant landlord was negligent, since hazard of concrete slab was an open and obvious condition. B. Appellate Court The matter was first reviewed by the Hamilton County Court of Appeals, which determined that the jury should have decided the case on the issues of the landlord s duty, rather than granting a directed verdict. The Court of Appeals also determined that the trial court erred in applying the collateralsource rule. Plaintiff should have been allowed to introduce evidence of the original medical bills. 53

2 54

3 C. Supreme Court The Supreme Court agreed to review this case on the issues of collateral source and on the issue of a landlord s statutory duty vis-à-vis a hazardous condition. The Supreme Court s decision on the issues of the Collateral Source Rule and Evidence of medical charges is as follows: 1. Both an original medical bill rendered and the amount accepted as full payment are acceptable to prove the reasonableness and necessity of charges rendered for medical and hospital care. 2. Any difference between an original medical bill and the amount accepted as full payment for the bill is not a benefit under the collateralsource rule. D. Analysis of Robinson v. Bates 1. Write-off is the difference between the original amount of a medical bill and the amount accepted by the medical provider as the bill s full payment. 2. Because no one pays the negotiated reduction, admitting evidence of write-offs does not violate the purpose behind the collateral-source rule. 3. In personal injury cases, an injured party is entitled to recover necessary and reasonable expenses arising from the injury. 4. Jury must determine from all relevant evidence the reasonable value of medical services. 55

4 II. OHIO STATUTES INVOLVED A. R.C Collateral Source, eff. April 7, Defendant may not introduce evidence of any amount payable as a benefit to Plaintiff where subrogation rights can be claimed. 2. The rule prevents the jury from learning about a plaintiff s income from a source other than the tortfeasor so that a tortfeasor is not given an advantage from third-party payments to the plaintiff. B. R.C Personal Injury or wrongful death action 1. a written bill itemized by date, type of service rendered, and charge, shall, if otherwise admissible, be prima-facie evidence of the reasonableness of any charges and fees stated therein for [treatment] rendered by the [doctor] issuing such bill or statement, only if the party offering it delivers a copy of it to the attorney of record for the adverse party not less than five days before trial. 2. If the medical bill is received at least 5 days before trial it is prima facie evidence of reasonableness. Prima facie evidence is evidence good and sufficient on its face. 3. No separate authentication by Plaintiff is required as long as bill was received by plaintiff. This means that the court will not require Plaintiff to subpoena a records custodian to testify at trial. 4. Reasonableness of charges or service rendered may be challenged by Defendant. Defendant is always permitted to cross-examine Plaintiff s treating medical providers as to the reasonableness of a medical charge and the 56

5 relatedness of the treatment rendered. The rebuttal by Defendant can also take the form of testimony from a defense medical expert, who may challenge the over-billing or over-treatment of Plaintiff. 57

6 III. WHEN TO CONSIDER ROBINSON V. BATES A. Discovery 1. What to Request a. Actual amount of bills charged by the medical provider. b. Actual amount of payment (regardless of source). c. Who paid the bill for medical services. d. Which amount of the bill was actually paid. e. Amount of the bill that remains outstanding or unpaid. f. Who is responsible for the payment of outstanding bill. g. Whether there are any agreements for protection of bills. This could mean that the medical provider has received a letter of protection from the attorney, stating the bill will be paid (or negotiated) once a financial settlement in reached on the personal injury claim. h. Whether there are any agreements regarding amounts that are outstanding or unpaid 2. How to Obtain Information a. Request for Production of Documents i. For all medical providers, identified in Interrogatory No., produce itemized account histories demonstrating the dates of service, amounts billed, amounts paid, write-offs, adjustments or deductions, and the source of any payments. 58

7 ii. With respect to the payments identified in responses to Interrogatory No. and Request for Production of Document No., produce any and all subrogation notices, lien, statements, interim statements, final statements or requests for reimbursement received by Plaintiff and/or counsel. iii. Produce any subrogation or reimbursement agreement or contact applicable to any payments referenced in response to Interrogatory No. or Request for Production of Documents Nos. and. Also produce any and all explanation of benefits or similar documents received by Plaintiff from any insurance carrier or benefit plan making payment to any healthcare provider regarding services to you for injuries allegedly sustained in the accident that is the subject of Plaintiffs Complaint. b. Interrogatories i. Identify each and every party who has an interest in any part of the claim you are making herein against the defendant, whether such interest is by assignment or subrogation. ii. For each and every medical provider rendering services to plaintiff for injuries allegedly sustained in the accident described in plaintiff s Complaint, please state the name and address of the medical provider, the dates of service, itemized billed amounts for each service and the amount(s) paid to said providers in full satisfaction of the bills. c. Records Subpoena COMPLETE hospital, doctor and medical records, including Intake Sheet, doctors, 59

8 nurses, hospital notes, physical therapy notes, MRI films, CT scans, X-rays and any other documents in the possession of the above-captioned medical health facility, hospital and/or physician, pertaining to treatments rendered to **PLAINTIFF**, including, but not limited to any and all bills or statements for services rendered at any time. SPECIFICALLY THIS INCLUDES THE RECORDS THAT PRE-DATE AND POST-DATE THE DATE OF LOSS OF XX. 60

9 3. Medical Audit Once you have received the requested discovery information, you will want to prepare a medical audit, listing the provider, billed amount, insurance payment, insurance adjustment or write-off, and amount due. B. Trial 1. Exhibits must demonstrate actual amount of medical bill reduction. There can be no speculation about the amount to be negotiated or reduced. 2. Jury Instruction Plaintiff has submitted billing for medical services rendered. You must determine both whether the services were related and then what was the reasonable value of the services. In making this determination for a bill, you may consider the amount billed as evidence of the reasonable value of the service and if a lesser amount was accepted as payment, you may also consider that lesser amount as evidence of the reasonable value. You are not to speculate or consider whether any portion of these medical bills have been paid by insurance, but must award the full amount of those bills which you find to be reasonable, necessary and related. 3. Stipulation with Plaintiff s attorney to use amount actually paid. 61

10 IV. PLAINTIFF S ARGUMENTS A. MYTH 1. Collateral-source rule states that write-offs are a benefit to plaintiff. 2. Robinson v. Bates does not apply to claims that accrued after the effective date of the new Collateral-Source Statute R.C , passed by the General Assembly April 7, Several Common Pleas Court Judges have interpreted this statute R.C to prevent introduction of insurance write-offs for cases accrued after April 7, This is in direct contravention of the Supreme Court decision. However, no appeals courts have taken up the review on the issue of the collateral source statute. B. FACT 1. Defendant may not introduce evidence of who paid the bill. Parties should redact actual exhibit, blocking out the name of the insurance company. 2. Plaintiff may argue that the original bill demonstrates reasonable and necessary charge for the treatment. 62

11 V. DEFENDANT S ARGUMENTS A. Tortfeasor does not obtain a credit because of payments made by a third party on behalf of the plaintiff. B. Defendant may argue that the negotiated amount demonstrates reasonable and necessary charge for the treatment. C. Defendant may argue the credibility of the medical provider, i.e. over-billing. D. Robinson v. Bates still good law even after R.C the collateral source rule does not apply to write-offs of expenses that are never paid. 2. Require Plaintiffs to submit evidence of any contractual right of subrogation by plaintiff s health insurance carrier. E. Schlegel v. Li Chen Song (2007), 493 F.Supp.2d 918, 2007 U.S. Dist. LEXIS * applies Robinson v. Bates analysis to workers compensation subrogation and write-offs. 1. Plaintiff claims injury while in the course and scope of employment resulting from collision with defendant s commercial vehicle. 2. Plaintiff submitted bills totaling $24, to BWC. 3. BWC paid $7, to the medical providers and these amounts were accepted as full payment. 4. The collateral source rule is an exception to the general tot rule that damages should constitute that which will compensate and make the plaintiff whole. 5. Evidence of the amount the providers were forced to write off ($17,273.45) is admissible 63

12 because the collateral source rule in R..C is inapplicable. 6. Write-off amount is not benefits paid. 64

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