Personal injury, proof of damages (LL liability)

Ohio State Reports

Unpublished

ROBINSON v. BATES, Unpublished Decision (12-20-2006) 112
Ohio St.3d 17, 2006-Ohio-6362 ROBINSON, APPELLEE, v. BATES,
TRUSTEE, APPELLANT. No. 2005-0998. Supreme Court of Ohio.
Submitted March 29, 2006. Decided December 20, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Court of Appeals for
Hamilton County, No. C-040063, 160 Ohio App.3d 668,
2005-Ohio-1879.

LANZINGER, J.

{¶ 1} In this case, accepted on a discretionary
appeal, we conclude that the collateral-source rule does
not apply to bar evidence of the amount accepted by a
medical care provider from an insurer as full payment for
medical or hospital treatment. Both the amount originally
billed by the provider and the amount paid by the insurer
are admissible to prove the reasonable value of the medical
treatment.

{¶ 2} On the evening of April 21, 2001, the
appellee, Carolyn Robinson, broke a bone in her foot when
she fell in the driveway of the residence she rented from
the appellant, Helen Gist Bates, Trustee. Three to five
days before Robinson’s injury, an outside contractor, hired
by Bates’s grandson to do repair work, had removed a
deteriorating retaining wall on the side of Robinson’s
driveway, exposing the concrete footer. Although she was
aware of the construction, Robinson stepped onto an uneven
slab of the footer and injured her foot.

{¶ 3} Robinson sued Bates for personal injury.
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. The
trial court refused to admit the original bills and limited
her proof of damages to the amount that was actually paid
for her medical treatment. At the conclusion of Robinson’s
case, the trial court granted a directed verdict for the
defense, finding that Robinson had not established that
Bates was negligent since the existence of the concrete
footer was open and obvious.

{¶ 4} The Court of Appeals for Hamilton County
reversed the judgment, stating that a jury should have
determined the matter because reasonable minds could
conclude that Bates, as the landlord, had violated her duty
under R.C. 5321.04(A)(2) to repair the leased premises and
that she had therefore committed negligence per se.
Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828
N.E.2d 657, ¶ 13, 15. The court of appeals also held
that the trial court had erred in refusing to admit the
original medical bills. Id. at ¶ 27. Citing R.C.
2317.421 only in passing, it relied on the
collateral-source rule to hold that Robinson was entitled
to seek recovery of the entire amount of her medical bills,
rather than simply the amount paid by her insurer. Id. at
¶ 85. The case was remanded for a new trial.

{¶ 5} The two issues before us in this discretionary
appeal are (1) whether evidence of the amount accepted as
full payment of a medical bill is barred by the
collateral-source rule and (2) whether a landlord’s
statutory duty under R.C. 5321.04(A)(2) is excused if a
hazardous condition results from the landlord’s efforts to
comply with that statute.

{¶ 6} The judgment of the court of appeals is
affirmed with respect to the remand of this case, albeit
for a different reason. Although the collateral-source rule
does not bar evidence of the amount accepted as full
payment for medical services, we hold that both the
original medical bill rendered and the amount accepted as
full payment for medical services should have been admitted
pursuant to R.C. 2317.421. Furthermore, the jury must
determine whether Bates violated her statutory duty to
repair.

Admissibility of Medical Bills

{¶ 7} We first consider what evidence a jury may
consider in evaluating the reasonable value of medical
expenses. In personal-injury cases, an injured party is
entitled to recover necessary and reasonable expenses
arising from the injury. Wagner v. McDaniels (1984), 9 Ohio
St.3d 184, 9 OBR 469, 459 N.E.2d 561. Since those expenses
include the reasonable value of the medical care required
to treat the injury, the question is raised as to how to
determine the reasonable value of the medical care. In
Wagner, we held that “[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
necessity and reasonableness of the charges for medical and
hospital services. (De Tunno v. Shull, 166 Ohio St. 365,
143 N.E.2d 301 [2 O.O.2d 281, 143 N.E.2d 301], modified.)”
(Emphasis added.) Id., paragraph one of the syllabus. Thus,
either the bill itself or the amount actually paid can be
submitted to prove the value of medical services.

{¶ 8} Medical bills are admissible in a
personal-injury case, for “[a]ll relevant evidence is
admissible.” Evid.R. 402. “`Relevant evidence’ means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.” Evid.R. 401. Original bills are
certainly evidence of the value that the medical providers
themselves place upon their services.

{¶ 9} Furthermore, R.C. 2317.421 makes the bills
prima facie evidence of the reasonable value of charges for
medical services. R.C. 2317.421 states: “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 *
* *.” Properly submitted medical bills are rebuttable
evidence of reasonableness. Once medical bills are
admitted, a defendant may then present evidence to
challenge their reasonableness. Wood v. Elzoheary (1983),
11 Ohio App.3d 27, 28, 11 OBR 40, 462 N.E.2d 1243; see,
also, Stiver v. Miami Valley Cable Council (1995), 105 Ohio
App.3d 313, 320 663 N.E.2d 1310. The trial court thus erred
in refusing to allow the original medical bills to be
admitted into evidence.

{¶ 10} In reversing and remanding this case, the
Court of Appeals for Hamilton County remarked that Ohio
courts generally admit proffered medical bills, allowing
defendants to then rebut their prima facie evidence of
necessity and reasonableness. 160 Ohio App.3d 668,
2005-Ohio-1879, 828 N.E.2d 657, ¶ 27. However, the
court then continued its analysis to consider whether
plaintiffs may recover the “written-off portion of their
medical bills under the collateral-source rule. A
“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. After examining the
law of other jurisdictions and concluding that Ohio has no
law limiting the collateral-source rule,[fn1] the court of
appeals held that the “rule applies to any written-off
amount agreed to by a plaintiffs health-care provider and
insurer.” Id. at ¶ 83. The court of appeals reasoned
that the collateral-source rule applied to the write-off
because the amount written off was a benefit to the
plaintiff. Although the court of appeals correctly held
that the excluded bills were prima facie evidence of
reasonable value under R.C. 2317.421, it improperly applied
the collateral-source rule in this case.

{¶ ll} The collateral-source rule was identified in
Ohio in Pryor v. Webber (1970), 23 Ohio St.2d 104, 52
O.O.2d 395, 263 N.E.2d 235. The rule is an exception to the
general rule that in a tort action, the measure of damages
is that which will compensate and make the plaintiff whole.
Id. at 107, 52 O.O.2d 395, 263 N.E.2d 235, citing Lawrence
RR. Co. v. Cobb (1878), 35 Ohio St. 94 and Mahoning Valley
Ry. Co. v. DePascale (1904), 70 Ohio St. 179, 71 N.E. 633;
see 25 Corpus Juris Secundum (2002) 1012, Damages, Section
99(1). Pryor involved a plaintiff who received reduced
wages from her employer while she was unable to work
because of a tortfeasor’s negligence. We explained that
under the collateral-source rule, the plaintiffs receipt of
benefits from sources other than the wrongdoer is deemed
irrelevant and immaterial on the issue of damages. Id. at
109, 52 O.O.2d 395, 263 N.E.2d 235. The rule prevents the
jury from learning about a plaintiffs income from a source
other than the tortfeasor so that a tortfeasor is not given
an advantage from third-party payments to the plaintiff.
Id. at 108, 52 O.O.2d 395, 263 N.E.2d 235.

{¶ 12} When the collateral-source rule has been
raised as an issue, other jurisdictions have come to
different conclusions about the amount that a plaintiff may
recover for medical expenses. Ten state courts have
concluded that plaintiffs are entitled to claim and recover
the full amount of reasonable medical expenses charged,
including amounts written off from the bills pursuant to
contractual rate reductions. E.g., Lindholm v. Hassan
(D.S.D.2005), 369 F.Supp.2d 1104, 1110; Mitchell v. Haldar
(Del. 2005), 883 A.2d 32, 40; Hardi v. Mezzanotte (D.C.App.
2003), 818 A.2d 974, 985; Olariu v. Marrero (2001), 248
Ga.App. 824, 825, 549 S.E.2d 121; Bynum v. Magno (2004),
106 Hawaii 81, 92, 101 P.3d 1149; Arthur v. Catour (2004),
345 Ill.App.3d 804, 807, 803 N.E.2d 647; Wal-Mart Stores,
Inc. v. Frierson (Miss. 2002), 818 So.2d 1135, 1139-40;
Brown v. Van Noy (Mo.App.1994), 879 S.W.2d 667, 676;
Haselden v. Davis (2003), 353 S.C. 481, 483, 579 S.E.2d
293; Acuar v. Letourneau (2000), 260 Va. 180, 192, 531
S.E.2d 316; Koffman v. Leichtfuss (2001), 246 Wis.2d 31,
45-46, 630 N.W.2d 201. See, e.g., Bozeman v. Louisiana (La.
2004), 879 So.2d 692, 706.

{¶ 13} Other state courts have concluded that
plaintiffs are entitled to recover only the amount actually
paid by the plaintiffs’ insurance. See Moorhead v. Crozer
Chester Med. Ctr. (2001), 564 Pa. 156, 165, 765 A.2d 786
(in a medical malpractice action, the collateral-source
rule does not apply to the amount written off by the
tortfeasor because that amount was not paid by a collateral
source); Hanif v. Hous. Auth. of Yolo Cty. (1988), 200
Cal.App.3d 635, 640, 246 Cal.Rptr. 192 (the reasonable
value of a plaintiff s damages must be the actual amount
paid for medical services or the amount for which the
plaintiff incurred liability); Dyet v. McKinley (2003), 139
Idaho 526, 529, 81 P.3d 1236 (although a write-off
technically is not a payment from a collateral source
within the meaning of a statute prohibiting double
recoveries from collateral sources, it is not an item of
damages for which a plaintiff may recover because the
plaintiff has incurred no liability for the charges); Coop.
Leasing v. Johnson (Fla.App.2004), 872 So.2d 956, 960 (the
amount written off by medical providers cannot be
considered “benefits received” under the Florida statute).
Of these states, Florida and Idaho have statutes that limit
or abolish the collateral source rule.

{¶ l4} Effective April 7, 2005, the General Assembly
passed R.C. 2315.20, entitled “Introduction of evidence of
collateral benefits in tort actions.” Am. Sub. SB. No. 80
(2005). This statute allows the defendant in any tort
action to introduce “evidence of any amount payable as a
benefit to the plaintiff as a result of the damages that
result from an injury * * *.” (Emphasis added.) This
provision is subject to exceptions. In passing this
statute, the General Assembly found that “[t]wenty-one
states have modified or abolished the collateral source
rule.” Id., Section 3(A)(7)(b). The General Assembly also
requested that we “reconsider [our] holding on the
deductibility of collateral source benefits in Sorrell v.
Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504].” Id.,
Section 3(E). In light of this legislative history, it is
clear that the General Assembly intended to limit the
collateral-source rule in Ohio, just as the statutes have in
the Florida and Idaho cases.

{¶ 15} Bates urges us to hold that a plaintiff
should recover only the amount of medical expenses actually
paid, while Robinson contends that under the
collateral-source rule, a plaintiff should have been
permitted to introduce evidence of the original amount of
billed medical expenses, regardless of what was actually
paid. In deciding this issue, the court of appeals
concluded that “the collateral-source rule applies to any
written-off amount agreed to by a plaintiffs health-care
provider and insurer. 160 Ohio App.3d 668, 2005-Ohio-1879,
828 N.E.2d 657, ¶ 83. We disagree.

{¶ 16} The collateral-source rule does not apply to
write-offs of expenses that are never paid. The written-off
amount of a medical bill differs from the receipt of
compensation or services addressed in Pryor. The
collateral-source rule excludes only “`evidence of benefits
paid by a collateral source.'” (Emphasis added.) Wentling v.
Med. Anesthesia Servs., P.A. (1985), 237 Kan. 503, 515, 701
P.2d 939, quoting 3 Minzer, Nates, Kimball, Axelrod &
Goldstein, Damages in Tort Actions (1984) 17-5, Section
17.00. Because no one pays the write-off, it cannot
possibly constitute payment of any benefit from a collateral
source. See Moorhead v. Crozer Chester Med. Ctr. (2001),
564 Pa. 156, 165, 765 A.2d 786 (collateral-source rule does
not apply to amounts written off by the insurer since those
amounts are never paid by any collateral source). Because
no one pays the negotiated reduction, admitting evidence of
write-offs does not violate the purpose behind the
collateral-source rule. The tortfeasor does not obtain a
credit because of payments made by a third party on behalf
of the plaintiff.

{¶ 17} 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. Both the
original medical bill rendered and the amount accepted as
full payment are admissible to prove the reasonableness and
necessity of charges rendered for medical and hospital
care.

{¶ 18} The jury may decide that the reasonable value
of medical care is the amount originally billed, the amount
the medical provider accepted as payment, or some amount in
between. Any difference between the original amount of a
medical bill and the amount accepted as the bill’s full
payment is not a “benefit” under the collateral-source rule
because it is not a payment, but both the original bill and
the amount accepted are evidence relevant to the reasonable
value of medical expenses.

{¶ 19} It may well be that the collateral-source
rule itself is out of synch with today’s economic realities
of managed care and insurance reimbursement for medical
expenses. However, whether plaintiffs should be allowed to
seek recovery for medical expenses as they are originally
billed or only for the amount negotiated and paid by
insurance is for the General Assembly to determine.

Landlord Liability

{¶ 20} The court of appeals found also that the
directed verdict in favor of the landlord was improper
because the “open and obvious” doctrine does not abrogate a
landlord’s statutory duty to keep leased premises in a fit
and habitable condition. The trial court granted the motion
for a directed verdict after it had viewed all the evidence
and found that reasonable minds could only conclude that
Robinson had failed to establish a negligence claim.

{¶ 21} To prevail in a negligence action, the
plaintiff must show (1) the existence of a duty, (2) a
breach of that duty, and (3) an injury proximately
resulting from the breach. Menifee v. Ohio Welding Prods.,
Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d
707. “Where a danger is open and obvious, a landowner owes
no duty of care to individuals lawfully on the premises.”
Armstrong v. Best Buy Co, Inc., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, syllabus. The “open and
obvious” doctrine is still viable in Ohio, as we held in
Armstrong in analyzing the doctrine, which is based on a
common-law duty to warn invitees of latent or hidden
dangers. Id. at ¶ 11. In this case, however, there
is a statutory duty — the landlord’s duty to repair.

{¶ 22} R.C. 5321.04(A)(2) provides that a landlord
who is a party to a rental agreement shall “[m]ake all
repairs and do whatever is reasonably necessary to put and
keep the premises in a fit and habitable condition.”

{¶ 23} We have held that a landlord’s violation of
the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2)
constitutes negligence per se. Sikora v. Wenzel (2000), 88
Ohio St.3d 493, 727 N.E.2d 1277. But “[n]egligence per se,
however, is not equivalent to `a finding of liability per
se because the plaintiff will also have to prove proximate
cause and damages.'” Id. at 496, 727 N.E.2d 1277, quoting
Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563,
565, 697 N.E.2d 198. Negligence per se is also different
from strict liability, in that a negligence-per-se
violation will not preclude defenses and excuses, unless
the statute clearly contemplates such a result. Id. at 497,
727 N.E.2d 1277. Most statutes are construed to require that
the actor take reasonable diligence and care to comply, and
if after such diligence and care the actor is unable to
comply, the violation will ordinarily be excused.
Restatement of the Law 2d, Torts (1965) 38, Section 288A,
Comment g.

{¶ 24} Even though Bates as a landlord had a
statutory duty to repair, the record shows that the state
of the repairs was a jury question. Bates’s grandson,
Walter Rice, testified that he ordered the repair of the
driveway retaining wall and that the wall was torn down to
be repaired. Rice also stated that the debris in the
driveway area consisted of stones that were going to be
used to rebuild the wall. Clifford Harkness, Robinson’s
fianc?‰, testified that the wall was in the process of being
repaired when Robinson was injured. Robinson herself
testified that the concrete footer was not exposed until the
retaining wall was torn down. She also testified that the
contractors had left debris in the driveway and then never
returned to complete the work. Robinson injured her foot on
the concrete footer three to five days after the wall was
torn down. From the testimony, it is clear that a jury
should have been allowed to consider whether Bates
exercised reasonable diligence and care in repairing the
wall or instead breached her statutory duty to repair. A
determination that Bates breached that statutory duty would
have constituted negligence per se. The jury would then
have been required to find whether Robinson proved that the
breach was the proximate cause of her injury and the amount
of any damages. Chambers v. St. Mary’s School, 82 Ohio
St.3d at 565, 697 N.E.2d 198.

{¶ 25} The “open and obvious” doctrine does not
dissolve the statutory duty to repair. Schoefield v. Beulah
Rd. (Aug. 26, 1999) Franklin App. No. 98AP-1475. If the
jury finds that Bates breached her duty to repair and keep
the leased premises in a fit and habitable condition, the
“open and obvious” doctrine will not protect her from
liability. If the jury finds no statutory breach, however,
it still must determine whether the danger was open and
obvious to Robinson under common-law negligence principles.
Therefore, we agree with the court of appeals that because
questions of fact exist as to the state of the repairs of
the leased premises, a directed verdict should not have
been granted.

Conclusion

{¶ 26} The jury should have been permitted to
examine both the original medical bill and the amount
accepted as full payment to determine the reasonableness
and necessity of charges rendered for Robinson’s medical
and hospital care, for the collateral-source rule does not
bar evidence of write-offs. Furthermore, since factual
questions existed as to the breach of the duty owed by Bates
to Robinson, under R.C. 5321.05(A)(2), a directed verdict
was improper.

{¶ 27} The judgment of the Court of Appeals of
Hamilton County is affirmed, and the case is remanded to
the trial court.

[fn1] a. We note that, effective April 7, 2005, the General
Assembly passed R.C. 2315.20, a statute titled
“Introduction of collateral benefits in tort actions.” The
purpose of this statute was to set forth Ohio’s statement
of law on the collateral-source rule. This new
collateral-benefits statute does not apply in this case,
however, because it became effective after the cause of
action accrued and after the complaint was filed.

b. R.C. 2315.20 states:

c. “(A) In any tort action, the defendant may introduce
evidence of any amount payable as a benefit to the
plaintiff as a result of the damages that result from an
injury, death, or loss to person or property that is the
subject of the claim upon which the action is based, except
if the source of collateral benefits has a mandatory
self-effectuating federal right of subrogation, a
contractual right of subrogation, or a statutory right of
subrogation or if the source pays the plaintiff a benefit
that is in the form of a life insurance payment or a
disability payment. However, evidence of the life insurance
payment or disability payment may be introduced if the
plaintiff’s employer paid for the life insurance or
disability policy, and the employer is a defendant in the
tort action.

d. “(B) If the defendant elects to introduce evidence
described in division (A) of this section, the plaintiff
may introduce evidence of any amount that the plaintiff has
paid or contributed to secure the plaintiff’s right to
receive the benefits of which the defendant has introduced
evidence.

e. “(C) A source of collateral benefits of which evidence
is introduced pursuant to division (A) of this section
shall not recover any amount against the plaintiff nor
shall it be subrogated to the rights of the plaintiff
against a defendant.”

Judgment accordingly.

MOYER, C.J., RESNICK, PFEIFER and O’CONNOR, JJ., concur.

O’DONNELL, J., concurs in judgment only.

LUNDBERG STRATTON, J., concurs in part and dissents in
part.

LUNDBERG STRATTON, J., concurring in part and dissenting in
part.

{¶ 28} While I agree generally with the majority’s
opinion that both the amount billed and the amount paid are
admissible, I would limit recovery for medical expenses to
the amount actually paid for treatment.

{¶ 29} As the majority discussed, in this day and
age of managed care and discounting of medical bills by
insurers, the amount reimbursed often has little relation
to the actual cost of the services. However, the actual
amount billed is more reflective of the actual value of the
services rendered, which juries often use as a benchmark in
deciding the seriousness of the injuries. For example, a
plaintiff incurs a medical bill for $10,000 for medical
care after a car accident. The $10,000 bill is settled for
$2,000. However, claiming the plaintiff incurred only
$2,000 in treatment distorts the degree of medical care and
physical damages actually incurred by the plaintiff and
could diminish the seriousness of the plaintiffs injuries.

{¶ 30} However, I would limit the actual recovery as
a damage award to the amount that was actually paid or to
that for which the plaintiff still remains liable. In the
example cited above, the plaintiffs actual bill was reduced
to $2,000, and the plaintiff owed no more. To allow
recovery for $10,000 would grant the plaintiff recovery for
medical bills for which the plaintiff is no longer
responsible and would result in a windfall. But to limit
admissibility to the $2,000 would distort the extent of
injury suffered by the plaintiff. I believe that a jury
instruction could advise the jury that the original amount
can be considered in evaluating pain and suffering and the
extent of the injuries, past and future, but that recovery
for that part of the damage award representing medical
expenses is limited to the actual amount ultimately paid by
the plaintiff, whether through insurance benefits or
otherwise.

{¶ 31} The majority’s decision creates confusion by
creating a grey area for judges instructing juries in
considering medical damages. The majority holds the
defendant liable for the “reasonable value of plaintiff s
medical treatment” but gives no direction as to what that
means — how does the jury weigh the amount billed,
the amount paid, or “some amount in between”? What are the
factors they may use to consider this issue? Then the
majority further confuses the matter by saying that the
General Assembly should resolve this issue, which it just
decided was a jury question.

{¶ 32} I do not view this as a collateral-source
issue. If a plaintiffs medical bill was settled for less,
the plaintiff should be entitled to present to the jury the
full bill and all its reasonable inferences as to damages,
but recover only the amount actually paid as the amount
necessary to make the plaintiff whole on medical
expenditures.

{¶ 33} Therefore, I respectfully dissent as to this
portion of the holding.

Ulmer & Berne, L.L.P., Marvin L. Karp, and David L. Lester,
for appellant.

Scott A. Best, for appellee.

Bricker & Eckler, L.L.P., Catherine M. Ballard, and Anne
Marie Sferra, urging reversal for amici curiae Ohio
Hospital Association, Ohio State Medical Association, and
Ohio Osteopathic Association.

Thompson Hine, L.L.P., and Alan F. Berliner, urging
reversal for amici curiae Property Casualty Insurers
Association of America and Ohio Insurance Institute.

Weston Hurd, L.L.P., Daniel A. Richards, and Ronald Rispo,
urging reversal for amicus curiae Ohio Association of Civil
Trial Attorneys.