A. Legal Writing

This Motion in Limine was created for Attorney Mark Gervelis, contact information provided. All research and writing was done solely by Judy Carlin. Due to formatting issues in wordpress the case caption has been removed and spacing and/or other formatting differs from the original document.

The Motion was filed in the Court of Common Pleas Mahoning County Ohio in Case No. 06CV 02238

PLAINTIFFS’ MOTION IN LIMINE RE: Medical Expenses

Now come Plaintiffs, Todd Linville and Pamela Linville, by and through their undersigned counsel, and hereby move the Court in limine for an Order excluding from trial any evidence of collateral sources of benefits paid for medical expenses on the Plaintiffs’ behalf, as well as any other evidence that would lead the jury to an inference that insurance paid any portion of the medical expenses incurred by Plaintiff as a result of the accident at issue including, or that the amounts paid by Plaintiff’s health insurer establishes the reasonable value of said services including:

(1) any argument or questioning concerning Plaintiffs’ health insurance coverage, including any “write off,” reduction in total amount billed or accepted by agreement between the health insurance company and medical provider;

(2) any argument or questioning regarding any memoranda or form, including the form known as the “Explanation of Benefits” documenting any agreement on fee for services between the health insurance company and the medical provider.

A Memorandum In Support of this Motion, is attached hereto and incorporated as if fully rewritten herein. A proposed order granting this motion shall be separately provided to the Court.

Respectfully submitted,
THE GERVELIS LAW FIRM
BY: MARK S. GERVELIS (#0012647)
(330) 533-6565
msg@gervelislaw.com

MEMORANDUM IN SUPPORT

Based upon Defendant’s list of Trial Exhibits filed with this Court on or about March 28, 2008 Plaintiffs anticipate that Defendants will attempt to introduce evidence relating to the payments made by Plaintiff’s insurance to his medical providers pursuant to Robinson v. Bates (2006), 112 Ohio St.3d 17, 857 N.E. 2d. 1195.

STATEMENT OF THE FACTS

This case arose on January 31, 2005 when defendant, Allison Parobek, negligently operated her motor vehicle and crashed into the vehicle driven by Plaintiff Todd C. Linville. Mr. Linville suffered serious personal injuries.

Mr. Linville was treated by various medical providers for his injuries. Some bills were paid, and subrogated by contract, pursuant to the medical pay provisions of his auto insurance or his health insurance. Some bills have not been paid at all. There may have been, or there may be, some adjustment to the amount of some bills.

The term “insurance adjustment” appears on some bills, however, there is no evidence from any health insurance carrier on the meaning of this term. Health insurance policies routinely establish differing amounts the insured is required to pay, and the total of the amount which is written off, depending on whether the provider is “in plan” or “out of plan.” Neither Plaintiff’s medical bills and/or the form known as “Explanation of Benefits” on their face provide enough information to address these questions.

Plaintiff will submit copies of his medical bills as evidence at trial, however, Plaintiff has not stipulated, nor does he have knowledge, of any negotiated payment of a lesser amount as satisfaction in full for his medical expenses.

LAW AND ARGUMENT

The incident giving rise the lawsuit in Robinson occurred prior to the date R.C. 2315.20 went into effect. Holding that Ohio’s new collateral benefits statute, R.C. 2315.20, did not apply, the Court directed it’s analysis to the whether a “write-off,” defined as a portion of the bill “no one pays,” was admissible under Ohio’s Collateral Source Rule. Id. at 23. The accident giving rise to this lawsuit occurred on January 3, 2005, thus the holdings and analysis stated in Robinson apply to the determination of admissibility of Defendant’s proposed exhibits/testimony.Robinson

Defendants will argue that documents such as the Explanation of Benefit forms, notation of “insurance adjustment” on a bill and/or related testimony which provide evidence of the amount paid versus the amount billed to Plaintiff’s health insurer are admissible pursuant to . This is patently false.

Requirements for Admissibility of “write offs”

Robinson was decided on stipulated facts on both the total amounts billed by medical providers and the amounts accepted as full payment for services. During the trial, Robinson proffered her medical bills of $1,919. She stipulated that her insurance company had negotiated the amount of $1,350.43 as payment in full. Id. Thus, there was no question regarding whether the difference between the amount billed and the amount accepted was a “write-off” as defined by the Court since Plaintiff stipulated to the fact that “no one” was liable for further payments for her medical expenses.

In the case at bar there is no such stipulation, nor can there be. Plaintiff is not privy to any negotiation or agreement to write off any portion of the bill, and as stated above, the information on the Explanation of Benefit forms and/or billing statements do not provide sufficient information upon which to make such a determination.

Defendants have not established that any portion of Plaintiff’s medical expenses have been “written off” as defined by Robinson v. Bates

R.C. 2317.421 establishes that Plaintiff’s burden of production on medical expenses is satisfied and prima facie reasonableness established so long as Plaintiff produces written itemized billing statements. The burden to rebut the reasonableness of the expenses, including proof of write offs, then shifts to defendant. As stated supra, no such evidence has been produced.

Defendants have not requested information from Plaintiff, Plaintiff’s medical providers or Plaintiff’s insurers regarding whether any portion of Plaintiff’s medical expenses have been “written off” as defined by Robinson. Without proof that “no one pays anything,” any evidence or testimony regarding adjustments to medical expenses remains inadmissible under Robinson.

Defendant’s Burden of Production To Rebut The Presumption of Reasonableness

As stated above, Plaintiff has met his burden of production under R.C. 2317.421 and thus established that his medical expenses are prima facie reasonable. The burden now shifts to Defendant to produce evidence to rebut the reasonableness of the expenses. R. Evid. 301; Horsley v. Essman (2001) 145 Ohio App.3d 438, 763 N.E.2d (Statutory presumption shifts the evidentiary burden of producing evidence to the party against whom the presumption is directed.) A defendant may produce contrary evidence to rebut the reasonableness of the charges. Wood v. Elzoheary (Cuyahoga 1983) 11 Ohio App.3d 27, 462 N.E.2d 1243.

In determining the scope of evidence necessary to rebut the presumption of the reasonableness of medical expenses, Robinson again controls.

Robinson was before the Ohio Supreme Court on discretionary review. In reaching their decision the Court reviewed conflicting case law on determination of the reasonable value of medical expenses beyond the simple issue write offs, ans declined to establish a categorical rule on how to determine the reasonable value of medical services. The Court stated:

To avoid the creation of separate categories of plaintiffs based on individual insurance coverage, we decline to adopt a categorical rule. Because different insurance arrangements exist, the fairest approach is to make the defendant liable for the reasonable value of plaintiff’s medical treatment. Due to the realities of today’s insurance and reimbursement system, in any given case, that determination is not necessarily the amount of the original bill or the amount paid. Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Id. at 23.

Because Robinson dealt with stipulated facts as to amounts billed and paid, the Court did not analyze Defendant’s evidentiary burden to rebut the reasonable value of medical expenses. There is a dearth of case law in this area, however, St. Vincent Med. Ctr. v. Sader (Wood 1995) 100 Ohio App.3d 379, 654 N.E.2d 144 is on point and applicable to the case herein. In St. Vincent the hospital sued a patient for unpaid medical expenses where his insurance company paid only $9,596.54, the amount the insurer deemed to be reasonable, of the full amount of $13,846.50, the amount the hospital deemed reasonable. The patient filed a third-party complaint against the insurance company. The trial court granted both the hospital and insurance company summary judgment, holding that both charges were reasonable and the patient was liable for the unpaid balance. The patient appealed arguing that the charges could not be unreasonable for the insurance company and reasonable for the hospital. The Court of Appeals agreed and reversed summary judgment for the hospital.

In reaching a determination of the reasonable value of medical services the court addressed the burden of production necessary to overcome the presumption that the amount billed by the hospital for its services were reasonable. Specifically, the court stated that the affidavits of the treating physician and hospital accounts coordinator that the amounts charged the patient were the usual amounts charged St. Vincent patients was not sufficient to establish to the reasonableness of the charges as rebutted by the testimony submitted by the insurance company from an independent medical claims review coordinator. The independent medical claims reviewer testified as to the amount of the charges based upon a comparison of what was billed by other hospitals in the area for the similar services.

St. Vincent is applicable to the case herein. In accord with R.C. 2317.421 Plaintiffs have submitted itemized bills establishing a rebuttable presumption that the amount billed is reasonable. Plaintiffs anticipate Defendants will attempt to use the Explanation of Benefit forms, the “insurance adjustment” notation on billing statements and/or other testimony regarding the amounts paid versus the amounts billed for the services to establish the reasonable value of the medical expenses. Such evidence must be excluded.

Robinson holds that in order to determine the reasonable value of medical services the jury must hear all relevant evidence. Robinson at 23. St. Vincent holds that testimony regarding comparative amounts billed for similar services by other providers in the same geographic area is necessary to overcome the presumption of reasonableness of the amounts billed by a medical provider. Thus, in order for Defendants to meet their burden under Robinson and St. Vincent they must produce evidence regarding the amounts charged for similar services by providers in the same geographic area. Evidence of the amounts paid to one entity is not sufficient. No such evidence has been proferred.

Ohio’s new collateral benefits statute, R.C. 2315.20

As discussed supra, Ohio’s new collateral benefits statute, R.C. 2315.20, does not apply to the case herein; however, if it were to apply, evidence of Plaintiff’s receipt of benefits paid by his insurance for which the insurance reserves the contractual right of subrogation, would not be admissible, including any amounts identified as “insurance adjustments.”

Further, R.C. 2315.20 is illustrative of the legislature’s desire to place the burden of production on a defendant seeking to introduce evidence of insurance payment of medical expenses.

CONCLUSION

Based upon the foregoing, Plaintiffs request an Order prohibiting Defendants from introducing at trial any evidence of collateral sources of benefits, including insurance write offs or adjustments, for medical expenses submitted on the Plaintiffs’ behalf, as well as any other evidence that would lead the jury to an inference that insurance paid any portion of the medical expenses incurred by Plaintiff as a result of the accident at issue, or that the amounts paid by Plaintiff’s health insurer establishes the reasonable value of said services.

In the alternative, should this Court deny this motion, Plaintiffs request that Defendants be required to present evidence regarding the amounts billed for similar services by other medical providers within the geographic area.

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