Representing
the injured party in a personal injury claim is a difficult juggling act for
the practitioner. The experienced
litigator is well aware of the traps involved in even the simplest personal
injury case, including issues like subrogation, medical liens and tort
reform. The practice is fraught with
land mines.
It just got
a lot tougher. On December 20, 2006, the
Ohio Supreme Court rendered a decision dealing with the collateral source
rule. Robinson v. Bates (2006), 112 Ohio St. 3d 17. This decision is being used by insurance
companies to try to decrease jury awards and settlements.
Pryor v. Webber (1970), 23 Ohio State 2d
104 was the leading case invoking the collateral source rule. The rule provides, basically, that evidence
of a plaintiff’s receipt of benefits from a source other than the wrongdoer
cannot be presented to a jury. Thus, if
the plaintiff had his medical bills paid by health insurance, or med pay, or
even by his kind uncle, the fact that those payments occurred could not be
presented to a jury.
Robinson v. Bates affects the
collateral source rule. In Robinson, one of Plaintiff’s medical
bills was paid in part by Plaintiff’s health insurance and the balance was
“written off” by the provider, leaving the balance as fully paid. The Plaintiff tried to introduce the full
bill. The Defendant argued that only the
“paid amount” should be presented to the jury.
The Ohio Supreme Court, breaking with years of contra authority,
declared that the original bill and the evidence of the write off could be
presented to the jury. Expect insurance
companies to seize upon this decision to try to further whittle settlements and
jury awards.
But all is
not lost. The practitioner is not
without options and argument to counterattack Robinson. We intend to raise
several arguments and use different tactics in these cases, including:
1.
Making the defense prove the existence of the write off. This will be more difficult for the defense
than might be expected as it will require testimony from the medical
practitioners and, potentially, the health insurance carriers.
2.
Reminding the trial court via Motions in Limine that the write off amount does not represent full payments as many
health insurance plans utilize “hold backs” and “bonus payments.”
3.
Reminding the Court that Robinson
does not modify the collateral source rule.
It merely changes what is and is not a collateral source.
At Thomas
J. Diehl & Co., LLC, we have been handling personal injury claims in
Southwest Ohio since 1988. We regularly
work with counsel in ethical fee sharing arrangements. Thomas J. Diehl is a Fellow of the Litigation
Counsel of America and a member of the Million Dollar Advocates Forum.
To view more Co-Council Reports and more information on how Tomas J. Diehl - Ohio Personal Injurt Arrorney - can help you visit www.ThomasJDiehl.com
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