writing sample 2 [legal memo on unpaid medical bills]
TRANSCRIPT
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MEMORANDUM
To: Patty Hopper, Legal Research
From: James A. Alp, UDSL Student Extern
Date: September 24, 2012
Subject: Judgment in █████████████████████ v. █████,
No. 2012-CVF-████
QUESTION PRESENTED
Under case law governing an action by a medical service provider to collect on a
patient’s account, is a plaintiff entitled to judgment in its favor when its sole
witness, plaintiff’s billing specialist, introduces an account statement into
evidence, but admits on cross-examination that she has no personal knowledge of
the medical necessity of plaintiff’s services or the reasonableness of plaintiff’s
fees, whereas the defendant produces no exhibits and calls no witnesses in support
of his defense that the plaintiff’s fees are unreasonable?
FACTUAL AND PROCEDURAL HISTORY
This is an action on an account for professional services rendered. Defendant ██████
██████, after suffering an injury while employed by ███████████, received treatment
from Plaintiff ██████████████████████, which services and treats worker’s
compensation patients. Pl.’s Post-Trial Br. 1. The Ohio Bureau of Worker’s Compensation
(BWC) was billed for Defendant’s treatment, but the claims were denied. Id. Plaintiff then
attempted to collect payment personally from the Defendant, who never paid on the account.
Plaintiff filed its Complaint on ███████, 2012. The Complaint alleged one cause of
action, specifically, that Defendant owed Plaintiff the sum of $███████, upon an account.
Compl. ¶ 1. In accordance with Civ.R. 10(D)(1), Plaintiff attached to its Complaint a copy of its
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Claim Summary Invoice showing Defendant’s name, a list of services provided with dates of
service and Plaintiff’s “adjusted rates,” and the total balance of $███████ due and owing
Plaintiff.
On █████████, 2012, Defendant filed his Answer, including a general denial and
asserting, among other defenses, that “the charges incurred herein for medical services rendered
on behalf of Defendant are unconscionable and unreasonable.” Answer ¶ 1, 14.
A trial was held in this Court on █████, 2012. Plaintiff’s sole witness, Ms. J█ ████,
who has been employed by Plaintiff as a billing specialist for three years, testified as to the
Claim Summary Invoice at issue. Pl.’s Post-Trial Br. 2. She testified that she was familiar with
the Defendant and had personal knowledge of his account, and that the charges on the account
were for services rendered to the Defendant. Id. She testified that the “adjusted rates” billed by
Plaintiff were determined by its fee reduction agreement with the BWC, so that the amount
Plaintiff billed Defendant as a “self-pay” was no more than the rates allowed by the BWC. Id. at
3. Ms. ████ testified that she spoke with the Defendant and that he either “accepted a payment
arrangement on the account” or “offered to make a $10.00 monthly payment.” Compare Pl.’s
Post-Trial Br. 3 with Def.’s Post-Trial Br. 3. At any rate, her testimony was that during their
conversation the Defendant “did not dispute the account or the services with her.” Pl.’s Post-
Trial Br. 3. Plaintiff introduced no other exhibits, such as medical records which might
substantiate the medical care that was provided to Defendant, or the effects of such treatment.
Def.’s Post-Trial Br. 2. No treating physician or physical therapist testified as to the
reasonableness or necessity of the claimed charges. Id.
The Defendant appeared at trial but did not testify, offered no exhibits, and called no
witnesses. Defendant’s counsel did cross-examine Ms. ████, who admitted that she was not
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aware of any written agreement for services or charges signed by Defendant. Def.’s Post-Trial
Br. 2. Ms. ████ testified that the Defendant “may have executed a document authorizing
service and agreeing to pay for the services rendered,” but Plaintiff failed to produce any such
document at trial. Pl.’s Post-Trial Br. 2. Ms. ████ also admitted that she was not present when
any of the services were provided to the Defendant, nor was she aware whether or not the
treatments actually benefited his medical condition. Def.’s Post-Trial Br. 2.
At the conclusion of the trial, the Court requested post-trial briefs from both parties.
Defendant’s post-trial brief maintains that the Plaintiff failed to prove by a preponderance of the
evidence that the medical services provided to Defendant were customary, reasonable and
necessary. Plaintiff’s post-trial brief maintains that it met its burden of a preponderance of the
evidence and that it is entitled to judgment against the Defendant for the amount prayed for in its
complaint, $███████. Plaintiff argues that it met its burden by introducing its medical bills,
and that the Defendant failed to meet his burden by failing to introduce evidence that Plaintiff’s
charges were unreasonable.
ANALYSIS
I. Even though Plaintiff presented no evidence that the amount it billed was
reasonable, the conclusion that it has met its burden of proof cannot be avoided.
A. A Physician is entitled to collect the reasonable value of services rendered, but has
the burden of establishing reasonable value.
Plaintiff herein has brought an action on an account, which is an action for a breach of
contract.1 Oxford Sys. Integration, Inc. v. Smith-Broughan Mechanical Servs., 159 Ohio App.3d
1 Defendant emphasizes in his Post-Trial Brief that Plaintiff did not plead quantum meruit in its Complaint. Def.’s
Post-Trial Br. 1. In fact, quantum meruit (literally, “as much as he deserves,” Lebanon Country Manor Nursing
Home v. Stiver, No. 88-04-030, 1989 WL 33706, *3 [12th Dist. Apr. 10, 1989]), is simply the name for the measure
of damages afforded in an action for quasi-contract. Dailey v. Craigmyle & Son Farms, L.L.C., 177 Ohio App.3d
439, 2008-Ohio-4034, ¶ 20 (4th Dist.). See also Myers v. Good, 4th Dist. No. 06CA2939, 2007-Ohio-5361, ¶ 12
(quantum meruit described as “proper remedy” for unjust enrichment). A party is not required to plead its legal
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533, 2005-Ohio-210, 824 N.E.2d 586, ¶ 16 (2d Dist.). The physician-patient relationship is
characterized as a contract, whether express or implied. Associated Physicians of MCO, Inc. v.
Baker, 6th Dist. No. L-89-209, 1990 WL 106432, *3 (July 27, 1990). “[W]here services are
rendered by one person for another, and are knowingly and voluntarily accepted, without more,
the law presumes that such services were given and received in the expectation of being paid for
and implies a promise to pay their reasonable worth.” 66 American Jurisprudence 2d, Restitution
and Implied Contracts, Section 40, at 695 (2011). Consequently, a physician or surgeon is
entitled to recover from a patient, in the absence of an express agreement as to compensation, the
reasonable worth of his or her services. Miami Valley Hosp. v. Middleton, 2d Dist. No. 24240,
2011-Ohio-5069, ¶ 20; Associated Physicians at *3; Neurosurgical Assoc., Inc. v. Borowsky, 8th
Dist. No. 41197, 1980 WL 354911, *3 (Sept. 18, 1980); Sabroske v. Williamson, 79 Ohio Law
Abs. 257, 257, 155 N.E.2d 286 (M.C.1958); Barman v. Feid, 27 Ohio N.P. (N.S.) 409, 413
(C.P.1929).
In any civil action, a fundamental principle operates: He who affirms must prove. Hanna
v. Groom, 10th Dist. No. 07AP-502, 2008-Ohio-765, ¶ 39. Thus, in an action to collect on a
patient’s account, where there is no evidence of an agreement as to the fee for the services
rendered, the burden is on the physician-plaintiff to prove their reasonable worth. Associated
Physicians at *3; see also 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Section 95, at 258
(2012) (“plaintiff who seeks remuneration for the reasonable value of services rendered on the
theory of an implied contract * * * has the burden of proving the reasonableness of the charges
made for his or her services”). The reasonable value of the services must be proven by
competent, credible evidence presented at trial. Hailey v. MedCorp, Inc., 6th Dist. No. L-05-
theory of recovery. Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-4945, ¶ 12 (8th Dist.). Plaintiff’s
Complaint set forth the facts that establish its claim for relief; hence there is no infirmity in it.
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1238, 2006-Ohio-4804, ¶ 21, citing Gioffre v. Simakis, 72 Ohio App.3d 424, 428, 594 N.E.2d
1013 (10th Dist.1991). Plaintiff’s evidence must establish the reasonable value of the services at
the time and place they were rendered, by the person who rendered them. Middleton at ¶ 20;
Neurosurgical Assoc. at *3; see also Bagley v. Bates, Wright 705, 706 (Ohio 1834) (reasonable
value defined as “that compensation usually paid for like services at the time and place when and
where these were rendered”). Reasonable value, therefore, “must be determined in great measure
by proof of what such services rendered by men of skill in their profession command at the place
where they are rendered; that is, what sum in accordance with the usage and practice of those
who render such service and those for whom they are rendered is asked and paid therefor.” Saffin
v. Thomas, 8 Ohio C.C. 253, 254-255, 4 Ohio Cir. Dec. 438 (Hamilton App.1894).
B. In the Second District, a medical service provider is entitled to a presumption that
its customary charge is reasonable.
1. Allocation of the burden of proof in this case is problematic because of the
Second District’s ruling in Miami Valley Hosp. v. Middleton.
If the foregoing were a complete statement of the applicable law, the allocation of the
burden of proof in this case would be uncomplicated. Instead it is problematic. Despite the fact
that, pursuant to longstanding precedent, the burden of proving the reasonableness of its charges
would rest upon the Plaintiff, this Court’s determination of the matter is foreclosed by Second
District authority substantially relieving the Plaintiff of that burden. In Miami Valley Hosp. v.
Middleton, 2d Dist. No. 24240, 2011-Ohio-5069, the Second District Court of Appeals ruled that
in a collection action a hospital is “entitled to the presumption” that the reasonable value of its
services is its customary charge. Middleton at ¶ 21.
a. The case law and statute cited as authority in Middleton apply to personal
injury cases.
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The authorities upon which the Middleton court based its conclusion are: (1) three cases
interpreting and applying a reasonableness presumption that operates in favor of plaintiffs
seeking damages in personal-injury actions; (2) obiter dictum from a fourth case, a collection
case which clearly misinterpreted case law applying the same presumption; and (3) the statute
codifying the aforementioned evidentiary presumption in favor of personal injury and wrongful
death plaintiffs. Middleton relies on these authorities without setting forth any justification for its
ruling extending the prima facie evidence rule for personal injury and wrongful death cases to an
action to collect on an account.
Three of the four cases relied upon by the Middleton court were personal injury cases:
Wood v. Elzoheary, 11 Ohio App.3d 27, 462 N.E.2d 1243 (1983); Wagner v. McDaniels, 9 Ohio
St. 3d 184, 459 N.E.2d 561 (1984); Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857
N.E.2d 1195. In personal injury cases it is settled law that a plaintiff is entitled to recover
necessary and reasonable medical expenses incurred for treatment of injuries caused by the
tortfeasor. See, e.g., Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434, ¶
5.
In Elzoheary, a husband and wife injured in an auto accident sought review of the trial
court’s decision to exclude their medical bills from evidence. Elzoheary at 27. The Elzoheary
court’s analysis begins with DeTunno v. Shull, 166 Ohio St. 365, 143 N.E.2d 301 (1957), which
it found not to be controlling. Id. at 28. In DeTunno, also an automobile-collision case, the
Supreme Court of Ohio held that “[o]rdinarily a jury may not consider as items of damage the
amounts of indebtedness claimed to have been incurred for hospital and medical services, in the
absence of any testimony as to the necessity and reasonable value of such services.” DeTunno at
syllabus. However, in an influential concurrence, Justice Bell wrote:
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[I]t appears to me more sensible and enlightened to permit proof of the amount of
the bill rendered and a description of the services performed to be prima facie
evidence of the reasonableness of the charge rather than to require the usually
empty ceremonial of having a doctor testify that the charge he made for a
particular service is a reasonable or customary one.
DeTunno at 377 (Bell, J., concurring). Eventually, the General Assembly enacted a statute
codifying the principle Justice Bell had advocated. The statute provides:
In an action for damages arising from personal injury or wrongful death, a written
bill or statement, or any relevant portion thereof, 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 medication and
prosthetic devices furnished, or medical, dental, hospital, and funeral services
rendered by the person, firm, or corporation issuing such bill or statement,
provided, that such bill or statement shall be prima-facie evidence of
reasonableness only if the party offering it delivers a copy of it, or the relevant
portion thereof, to the attorney of record for each adverse party not less than five
days before trial.
R.C. 2317.421. Accordingly, in Elzoheary the Eighth District recognized that the majority
holding in DeTunno had been abrogated by the act of the General Assembly, which “resolved the
dispute whether medical bills are themselves some evidence of their own reasonableness. R.C.
2317.421 causes them to be prima facie evidence of their reasonableness, while affording
opposing counsel an opportunity to challenge their reasonableness with contrary evidence.”
Elzoheary at 28. Thus the court simply applied the statute, recognizing a rebuttable presumption
of reasonableness for a personal injury plaintiff’s medical bills. Id. As for the necessity element,
Elzoheary holds that expert testimony may not be necessary to connect the injury with the
medical care described in the bill when the connection is within common knowledge. Id. at 29.
Middleton’s next cited authority is Wagner v. McDaniels, 9 Ohio St. 3d 184, 459 N.E.2d
561. In Wagner, the plaintiff sought reimbursement from a convicted sexual offender of
expenses incurred for treatment of her victim-daughter’s personal psychological injury. Wagner
at 184, fn. 1. On the reasonableness of the plaintiff’s medical expenses, the Wagner court ruled:
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“[P]roof of the amount paid or the amount of the bill rendered and of the nature of the services
performed constitutes prima facie evidence of the reasonableness of the charges for medical and
hospital services.” Wagner at 186.2 While not citing R.C. 2317.421, the court followed the
reasoning in Justice Bell’s DeTunno concurrence to arrive at the same conclusion that the statute
likewise would have yielded. Id. at 185-186.
The third and most recent personal injury case cited in Middleton is Robinson v. Bates,
112 Ohio St.3d 17, 2006-Ohio-6362, wherein the Ohio Supreme Court summed up the personal
injury rule as follows: “Properly submitted medical bills are rebuttable evidence of
reasonableness. Once medical bills are admitted, a defendant may then present evidence to
challenge their reasonableness.” Robinson at ¶ 9, citing Elzoheary at 28. Given the verbal
parsimony with which these rules are stated, it must not be overlooked that Robinson, like
Elzoheary and Wagner, announces a rule that is applicable to personal injury cases, not
collection cases. See Robinson at ¶ 7-9. Robinson’s authorities were R.C. 2317.421, and cases
applying it. Id. at ¶ 9, citing Wood v. Elzoheary, 11 Ohio App.3d 27, 28, 462 N.E.2d 1243 (8th
2 This statement, which the court explicitly identified as its holding, differs from the language in the syllabus of the
court, which reads: “Proof of the amount paid or the amount of the bill rendered and of the nature of the services
performed constitutes prima facie evidence of the necessity and reasonableness of the charges for medical and
hospital services.” Wagner at paragraph one of the syllabus (emphasis added). Many cases following Wagner cite its
syllabus rather than its text; in the past this was the correct approach. Numerous reported cases have held it to be
“axiomatic that the syllabus of an opinion issued by the Supreme Court of Ohio states the law of the case.” State ex
rel. Heck v. Kessler, 72 Ohio St. 3d 98, 102-103, 647 N.E.2d 792 (1995). Those rulings, however, were grounded
upon former Rule 1(B) of the Supreme Court Rules for the Reporting of Opinions, which stated that “the syllabus of
a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the
facts of the specific case before the Court for adjudication.” Id. at 103. Subsequently, the rule was amended to set
forth, even more explicitly, that “[i]f there is disharmony between the syllabus of an opinion and its text or
footnotes, the syllabus controls.” S.Ct.R.Rep.Op. 1(B)(2), effective May 1, 2002. Today, however, the successor to
this rule contains no such language, stating simply: “The law stated in an opinion of the Supreme Court shall be
contained in its text, including its syllabus, if one is provided, and footnotes.” S.Ct.R.Rep.Op. 2.2, effective July 1,
2012. It is not error, therefore, for a court to follow the text of Wagner’s opinion rather than its syllabus. Doing so
also respects the logic of the Wagner court’s reasoning; it cannot be said that expert testimony to establish the
medical necessity element is made into an “empty ceremonial” by “contemporary medical billing practice”; this was
the reason for the court’s holding with respect to reasonableness. Wagner at 186.
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Dist.1983), and Stiver v. Miami Valley Cable Council, 105 Ohio App.3d 313, 320, 663 N.E.2d
1310 (1995).
None of these cases actually supports the propositions of law for which they are cited as
authority in Middleton. Middleton cites Elzoheary as partial support for its statement that “ ‘[a]
medical provider may be entitled to a presumption that its customary fees are reasonable.’ ”
Miami Valley Hosp. v. Middleton, 2d Dist. No. 24240, 2011-Ohio-5069, ¶ 21, quoting St. Vincent
Med. Ctr. v. Sader, 100 Ohio App.3d 379, 383, 654 N.E.2d 144 (6th Dist.1995). Elzoheary did
not so hold, and Sader was wrong to suggest that it did, as explained below. And the rules
announced in Wagner and Robinson apply to personal-injury actions, as Middleton
acknowledges. Id. In the absence of any explanation justifying its decision to extend the prima
facie evidence rule for personal injury and wrongful death cases to an action to collect on an
account, these cases carry no persuasive authority.
b. Middleton provides no justification for extending the personal injury
damages rule to collection cases.
i. St. Vincent Med. Ctr. v. Sader does not support the proposition that a
medical service provider’s fee should be presumed reasonable in a
collection case.
The Middleton court explicitly recognized elsewhere in its opinion that it is improper to
apply personal injury case law to a breach of contract case. Id. at ¶ 27. Middleton declined to
apply the essential holding in Robinson, interpreting the collateral-source rule, because Robinson
is a personal injury case, and the Robinson rule is irrelevant outside that context. Id. “Robinson
does not say, and we express no opinion, about whether, in a collection case like the present one,
a defendant may present evidence of the amount that a hospital charges other third-party payers
for hospital services.” Id. The same logic ought to have barred the Middleton court’s reliance on
personal injury cases to fundamentally alter the burden of proof in a hospital collection case.
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Under long-established law as set forth above, it is the plaintiff in a collection case, not the
defendant, who would be expected to present evidence of the type at issue in Robinson, because
the plaintiff carries the burden of proving all the elements of its case. Middleton goes astray from
that rule, and it does so largely in reliance on St. Vincent Med. Ctr. v. Sader, 100 Ohio App.3d
379, 654 N.E.2d 144.
Sader was a suit by a hospital to recover the unpaid portion of its charges from a patient.
Sader at 381. The Sader court was primarily concerned with the burdens on movants and
nonmovants in summary judgment proceedings. Id. at 382-385. The court found that the
hospital’s affidavit “fail[ed] to rebut,” id. at 383, the affidavit from the patient’s insurer which
concluded that the hospital’s fees were “excessive and unreasonable,” id. at 382. Because the
issue under consideration was the insurer’s motion for summary judgment, this would more
appropriately be described as an instance of a nonmoving party (the hospital) that exhibited a
“complete failure of proof concerning an essential element of [its] case,” 85 Ohio Jurisprudence
3d, Summary Judgment and Judgment on the Pleadings, Section 20, at 375; not a “failure to
rebut.” Accurately stated, the operative rule of law should have been that in an action on an
account, a medical service provider has the burden of proving its fee is reasonable. Instead the
Sader court cites Wood v. Elzoheary, where it was held that R.C. 2317.421 caused medical bills
to be prima facie evidence of their own reasonableness. Id. at 383; compare Elzoheary at
paragraph one of the syllabus. Elzoheary, of course, involves an action for damages arising from
personal injury, and the statute it relied upon is inapplicable to a case involving an action on an
account.
Sader’s summary of Elzoheary’s holding is that “[a] medical provider may be entitled to
a presumption that its customary fees are reasonable, but such a presumption is rebuttable.”
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Sader at 383. In fact, the text of R.C. 2317.421 is not phrased in terms of any party being
“entitled” to its presumption. To be sure, one possible interpretation of the statute is that it is the
medical bill itself that is meant to “benefit” from the presumption. See, e.g., Stiver v. Miami
Valley Cable Council, 105 Ohio App.3d at 320, 663 N.E.2d 1310. However, the statute is not
written so broadly that its “benefit” would apply in any cause of action in which a medical bill
might be admissible; the statute’s reach is limited to two specific causes of action, personal
injury and wrongful death. R.C. 2317.421. Clearly the only person who can properly be
described as “entitled” to the statute’s presumption, under the plain meaning of the statute, is the
personal injury or wrongful death plaintiff for whom the burden of presenting expert testimony
to establish reasonableness is lifted, so long as the bills are timely made available to opposing
counsel. Id.
Moreover, Sader’s oddly-worded paraphrase of Elzoheary does not sustain its being
relied upon as a controlling authority on this point. “A medical provider,” Sader says, “may be
entitled to a presumption that its customary fees are reasonable, but such a presumption is
rebuttable.” Sader, 100 Ohio App.3d at 383, 654 N.E.2d 144 (emphasis added). Stating the rule
in an uncertain voice rather than an authoritative one, as would be appropriate for a
pronouncement of a rule of law, lends weight to the supposition that this statement is mere
dictum. Further along, though, Sader’s tentative assertion appears to harden into a firm
conclusion: “The hospital is entitled to the presumption that the reasonable value of the services
rendered is its customary charge for such issue.” Sader at 384 (emphasis added). But restating
the point in this manner merely emphasizes the court’s conclusion that, even so, the purported
presumption in its favor had been overcome by the conflicting evidence presented by the
patient’s insurance provider. Neither of these two sentences comes across as an authoritative
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statement of the law, and there is no case authority that supports the particular expression of law
that Sader derived from Elzoheary. If there is one proposition of law that Sader plainly does not
establish, it is the notion that in a collection action “ ‘a hospital is entitled to the presumption that
the reasonable value of the services rendered is its customary charge,’ ” the rule embraced in
Middleton, 2011-Ohio-5069, at ¶ 21.
ii. A court should not apply tort law in deciding an action for breach of
contract.
In Middleton, the patient-defendant, who was treated for injuries from a car accident, also
pleaded a cause of action in tort against an allegedly negligent driver; his third-party complaint
against the alleged tortfeasor was dismissed on grounds of jurisdiction. Id. at ¶ 4. The two causes
of action would have had one issue in common: the reasonable value of the services Middleton
received from the hospital. Id. at ¶ 12. By itself, though, this fact does not justify extending a rule
of evidence applicable in the dismissed personal injury case to the hospital’s cause of action on
its account. The substantive law applicable to one cause of action does not migrate to other
causes of action merely because there are facts in common. To hold otherwise would be to
decide a breach of contract case by applying the substantive law of torts.
“Clearly, any complaint alleging a contract and its breach, seeking recovery for damages
for such breach, states an action on contract and not in tort.” 1 Ohio Jurisprudence 3d, Actions,
Section 15, at 388 (2008). As such, the familiar admonitions against improper mixing of the two
bodies of substantive law apply. See, e.g., DeFiore v. Peffers, 70 Ohio Law Abs. 588, 590-591,
124 N.E.2d 733 (8th Dist.1955) (charge to jury in breach of contract case, improperly mixing tort
theory with that of contract, and thereby “fail[ing] ‘to charge on the law controlling such
issues,’” would likely be substantial error but for failure of party to object in trial court). There is
no question that in a physician’s action to collect on an unpaid account, a finding that the amount
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billed was unreasonable, and judgment accordingly, awarding the physician a lesser amount,
would eliminate any possibility that the patient could afterward use the amount originally billed
as the basis for a damage award against the person who caused the injury. But can the converse
be argued with equal persuasive force? That is, because a patient with unpaid medical bills
would, if she brought a tort claim against a third party, receive the benefit of the R.C. 2317.421
evidentiary presumption that the amounts billed for treatments are reasonable, should the courts
extend to a medical service provider the benefit of the same presumption in an action on an
account, regardless of whether a claim against a third party tortfeasor exists? Such a result would
stretch the rule beyond rational justification.
iii. Middleton’s use of R.C. 2317.421 violates basic rules of statutory
construction.
The certainty that Middleton was wrongly decided is bolstered by the fact that it
controverts basic principles of statutory construction. The paramount concern in the
interpretation of a statute is legislative intent. In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-
Ohio-2267, 950 N.E.2d 505, ¶ 12; State v. Pawelski, 178 Ohio App.3d 426, 2008-Ohio-5180,
898 N.E.2d 85, ¶ 21 (2d Dist.). Policy decisions are for the legislature, and judicial interpretation
of a statute must be marked by deference to such legislative policy decisions. Symmes Twp. Bd.
of Trustees v. Smyth, 87 Ohio St.3d 549, 558, 721 N.E.2d 1057 (2000). A court is constrained to
apply the law as it is written, not as its judges might have wished it was written. State v.
McPherson, 142 Ohio App.3d 274, 281, 755 N.E.2d 426 (4th Dist.2001). In construing a statute
a court must not delete words used or insert words not used. State v. Bess, 126 Ohio St.3d 350,
2010-Ohio-3292, 933 N.E.2d 1076, ¶ 18. Often, the words chosen by the legislature “serve as
limitations of the extent of the statute’s applications.” State v. Cravens, 42 Ohio App.3d 69, 72,
536 N.E.2d 686 (1st Dist.1988). When this is the case, it is unquestionably improper for a court
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to interpret a statute so as to give the statute an operation which the legislature did not intend.
Cincinnati v. King, 84 Ohio Law Abs. 84, 92, 168 N.E.2d 633 (M.C. 1960), quoting 37 O. Jur.
Statutes § 269. “There is no authority under any rule of statutory construction to add to, enlarge,
supply, expand, extend or improve the provisions of the statute to meet a situation not provided
for.” State ex rel. Foster v. Evatt, 144 Ohio St. 65, 56 N.E.2d 265 (1944), paragraph eight of the
syllabus. To do so would be judicial legislation. Iddings v. Jefferson Cnty. Bd. of Ed., 155 Ohio
St. 287, 290, 98 N.E.2d 827 (1951).
Middleton’s use of R.C. 2317.421 to support its decision demonstrated a lack of judicial
deference to the policy choice of the General Assembly. In enacting R.C. 2317.421, the General
Assembly unmistakably gave effect to a clear policy decision: granting personal injury and
wrongful death plaintiffs relief from the burden of presenting expert testimony to establish the
reasonableness of the amount of damages sought for medical expenses incurred. The language of
the statute is explicit in identifying those two categories of litigants and no others for the benefit
of its advantageous evidentiary rule. R.C. 2317.421. This legislative policy is unquestionably
entitled to judicial deference. The statute’s introductory clause, declaring that the rule set forth
applies “[i]n an action for damages arising from personal injury or wrongful death,”
unambiguously serves as a limit on the extent of the statute’s applications, so that there is no
textual support for applying the rule to any other cause of action. Id.
The Second District’s decision in Middleton grants to hospitals the benefit of an
evidentiary presumption in collection actions that the General Assembly meant to give only to
plaintiffs in actions for damages arising from personal injury or wrongful death. By judicial
construction, the Middleton court added actions to collect on an account to the classes of actions
to which the evidentiary rule applies; or perhaps the court simply ignored the introductory clause
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limiting the scope of the rule. Either way, the court’s decision had the effect of adding to or
subtracting from the words in the statute. In Middleton, the Second District legislated from the
bench, and this transgression renders its ruling judicially unsound.
2. Reversal of Middleton, while crucial, must be decided by the Second District.
a. Reversing Middleton would not contravene stare decisis.
Respect for precedent need not prevent the Court of Appeals reversing Middleton. While
stare decisis “ ‘is of fundamental importance to the rule of law,’ ” Westfield Ins. Co. v. Galatis,
100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 44, quoting Wampler v. Higgins, 93
Ohio St.3d 111, 120, 752 N.E.2d 962 (2001), it is “not a mechanical formula of adherence to the
latest decision,” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940).
“[A] court of appeals, or any panel of judges sitting therein, is not unalterably bound to follow
the precedent of a rule previously announced or followed by such court.” State v. George, 50
Ohio App.2d 297, 309-310, 362 N.E.2d 1223 (10th Dist.1975). Indeed, the court has a “duty to
examine its former decisions” and, when necessary, to “discard its former errors.” Galatis at ¶
43. Needless to say, stare decisis may not be departed from without “special justification.”
Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).
Stare decisis is particularly forceful in matters of statutory construction, for the
legislature is free to alter what the court has done, by the simple expedient of amending its
statute. Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L.Ed.2d
132 (1989). In this case, however, the language of the statute could hardly be more clear; and it
is difficult to imagine how the General Assembly could amend R.C. 2317.421 to make its
inapplicability to collection actions like Middleton any more clear, except by addition of surplus
language. The existing text of the statute is more than sufficient to establish that Middleton’s
interpretation is unsound.
16
It has been said that a court “ought to stay the course when it has only recently chosen
one of two legitimate alternatives.” Harsco Corp. v. Tracy, 85 Ohio St.3d 382, 387, 708 N.E.2d
1000 (1999). Here, however, the Middleton court was faced with only one legitimate alternative:
not to apply the evidentiary rule of R.C. 2317.421 to a collection case where it had no validity.
The Second District, therefore, need not be particularly concerned with the admonition to “stay
the course” if it is faced with the question whether to overturn Middleton. Indeed, the fact that
Middleton was decided just a year ago weighs in favor of reversing it without delay so as to
minimize the potential mischief it may cause in the trial courts.
The fact that Middleton was wrongly decided should be sufficient by itself to justify
reversal. Ohio has adopted a 3-part test for deciding when precedent may be reversed. A court
may overrule its past decision on a question of law only when: “(1) the decision was wrongly
decided at that time, or changes in circumstances no longer justify continued adherence to the
decision, (2) the decision defies practical workability, and (3) abandoning the precedent would
not create an undue hardship for those who have relied upon it.” Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 48. Under Galatis, it is not enough merely to show that a
prior case was wrongly decided; all three requirements must be satisfied. State ex rel. Grimes
Aerospace Co., Inc. v. Indus. Comm., 112 Ohio St.3d 85, 2006-Ohio-6504, 858 N.E.2d 351, ¶ 6.
However, the Galatis test has been criticized for creating an obstacle to the overruling of
clearly erroneous precedents so long as the earlier decision, though plainly incorrect, is either
“workab[le]” in practice or is difficult to abandon without creating “undue hardship.” See, e.g.,
Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d
714, ¶ 19 (Pfeifer, J., dissenting) (Galatis test a “talismanic and legalistic straitjacket”); Groch v.
Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 222 (Lanzinger, J.,
17
concurring in part) (Galatis “should yield to a broader system of analysis”); State ex rel. Shelly
Materials, Inc. v. Clark Cty. Bd. of Comm’rs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d
59, ¶59 (Pfeifer, dissenting) (“practical workability” called “magical” element).
And in fact the Galatis “straitjacket” has been loosened in cases where a party’s reliance
interest is unaffected by reversal of the challenged precedent. While “[c]onsiderations in favor of
stare decisis are at their acme in cases involving property and contract rights, where reliance
interests are involved,” Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115 L.Ed.2d
720 (1991), the opposite is true where the precedent the court is urged to abandon established a
procedural or evidentiary rule, since such a rule “does not serve as a guide to lawful behavior,”
United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and
therefore cannot have altered the primary conduct of any party. State v. Silverman, 121 Ohio
St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, ¶ 32-33. Accordingly, the Supreme Court of Ohio
has ruled that Galatis is inapplicable to a matter involving an evidentiary rule. Silverman at ¶ 33.
Because Middleton established an evidentiary rule, the impediment of having to satisfy
the three-part Galatis test does not stand in the way of the Second District overruling Middleton.
If it were to do so, the controlling law would simply be restored to the rule set forth in Gioffre,
72 Ohio App.3d 424, 594 N.E.2d 1013, Associated Physicians, 6th Dist. No. L-89-209, 1990 WL
106432, and Hailey, 6th Dist. No. L-05-1238, 2006-Ohio-4804: In an action by a physician,
surgeon, or hospital to collect on an account, where there is no evidence of an agreement as to
the provider’s fee, the burden would be on the plaintiff to present evidence that its fee is
reasonable.
b. A ruling of the Second District, even if it appears unsound, must be followed
by this Court.
18
Despite all of the foregoing, as this case comes before the Dayton Municipal Court it
must be decided in light of the tenets of law announced in Middleton. “[A] decision of a court
which has authority to review the decisions of another court is binding upon the latter court. The
decision of an appellate court is evidence of law and in the inferior courts is in the nature of
conclusive evidence.” In re Schott, 16 Ohio App.2d 72, 75, 241 N.E.2d 773 (1st Dist.1968). This
is true without regard to what the view of the lower court may be as to the correctness of the
higher court’s decision. Battig v. Forshey, 7 Ohio App.3d 72, 74, 454 N.E.2d 168 (4th
Dist.1982). On the other hand, there can be nothing wrong with a lower court adding its voice to
the development of the law by openly stating its reasons for concluding that a higher court’s
decision was mistaken. See Gunckel v. King, 267 N.E.2d 619, 626 (M.C.1971) (Dayton
Municipal Court judge not precluded by “deference to ‘rank’ ” from indicating his feeling that a
controlling Second District decision was bad law).
The trial court’s obligation, nonetheless, is to follow the decisions of reviewing courts on
questions of law. Toler v. Toler, 2d Dist. No. 10-CA-69, 2011-Ohio-3510, ¶ 13. Unless and until
the Second District revisits and reverses its holding in Middleton, the Dayton Municipal Court is
duty bound to follow the law as it currently stands. See State v. Nieves, 9th Dist. No.
08CA009500, 2009-Ohio-6374, ¶ 52. This Court must therefore decide this case by applying the
law as announced in Middleton, to wit, that in an action on an account, a medical provider is
entitled to the presumption that the reasonable value of the services rendered is its customary
charge.
C. Plaintiff has presented sufficient evidence to prove its case by offering its account
statement as prima facie evidence of the reasonableness of its fees.
Applying Middleton to the facts of this case, the Plaintiff herein has clearly met its
burden. Plaintiff did present evidence, uncontested by the Defendant, that there was an
19
agreement between them under which the Defendant would receive Plaintiff’s professional
services and that Defendant agreed to pay for the services. Plaintiff did not establish that any
agreement existed between it and the Defendant as to the amount of its fee; it is therefore entitled
only to the reasonable value of its services. Plaintiff’s Claim Summary Invoice was entered into
evidence, and its billing specialist’s unchallenged testimony established that the amount billed
was its customary fee under its agreement with the BWC. It is therefore entitled to the rebuttable
presumption that the amount of its fee was reasonable.
It cannot be said whether the Plaintiff might have produced sufficient evidence of
reasonable value to make its case had it been held to the burden of proof under the law as it stood
pre-Middleton. Apart from the Claim Summary Invoice, this Court has no evidence before it that
would prove the reasonable value of the Plaintiff’s services in accordance with the standard set
forth in Saffin, 8 Ohio C.C. at 254-255, 4 Ohio Cir. Dec. 438. But applying, as this Court must,
the binding law of the Second District, it is clear that Plaintiff has made out a prima facie case
that it is entitled to the relief it has sought.
II. Defendant has not met his burden of rebuttal.
The Defendant, in contrast, has not met his burden of rebuttal. The Plaintiff having
established its prima facie case, it is incumbent upon the Defendant to produce evidence to rebut
the Plaintiff’s case, and he has not done so.
A. Defendant’s rebuttal case need not be proved by a preponderance but must meet
plaintiff’s evidence in order to shift the burden back onto the plaintiff.
To be sure, the burden of proof does not shift from the Plaintiff onto the Defendant, as
Defendant correctly points out in his post-trial brief. Def.’s Post-Trial Br. 3. “[T]o rebut and
destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect,
need only produce such amount or degree of proof as will countervail the presumption arising
20
therefrom. In other words, it is sufficient if the evidence offered for that purpose, counterbalance
the evidence by which the prima facie case is made out or established, it need not overbalance or
outweigh it.” Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 133, 77 N.E. 752 (1906). But,
“i‘[w]here the party having the burden of proof establishes a prima facie case, and no proof to
the contrary is offered, he will prevail.’ ” Klunk at 135, quoting Powers v. Russell, 30 Mass. (13
Pick.) 69, 76 (1832).
B. Cross-examination of the Plaintiff’s witness failed to contradict the prima facie
reasonableness of Plaintiff’s charges.
Defendant rested without presenting any of his own evidence or witnesses, and his
rebuttal case relies entirely on his cross-examination of the Plaintiff’s sole witness. The witness’s
apparent lack of personal knowledge of facts establishing the reasonableness and necessity of the
services rendered fails to contradict the presumption that operates in favor of plaintiff once its
bill is admitted into evidence. The witness’s responses upon cross-examination, including her
statements conceding lack of knowledge whether some or all of the services were performed,
lack of knowledge whether Defendant benefitted from the services, and lack of knowledge of the
reasonableness of Plaintiff’s fees, do not place any of the facts into doubt. No doubts as to the
essential elements of the Plaintiff’s case can be raised by simply eliciting the billing specialist’s
admission that she does not know these things. The Plaintiff did not present as a witness any
physician or physical therapist to establish these facts, because that is not the Plaintiff’s burden
under Middleton. Plaintiff called only one witness, its billing specialist, because that was all that
was required to meet its burden, given Middleton’s presumption of reasonableness together with
the uncontradicted testimony that the Defendant agreed to pay Plaintiff for its services. No
inference can be drawn from the billing specialist’s lack of personal knowledge of facts that the
21
Plaintiff is not required to present evidence to prove. Therefore, defendant has not met his
burden of rebuttal.
CONCLUSION
For the foregoing reasons, judgment should be for the Plaintiff.