[Cite as Hayberg v. Robinson Mem. Hosp. Found., 2013-Ohio-2828.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
ANNETTE HAYBERG, : OPINION
Plaintiff-Appellant, : CASE NO. 2012-P-0015 - vs - :
ROBINSON MEMORIAL HOSPITAL : FOUNDATION d.b.a. ROBINSON MEMORIAL HOSPITAL, :
Defendant-Appellee. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2010 CV 0647.
Judgment: Affirmed.
Timothy H. Hanna, 388 South Main Street, Suite 402, Akron, OH 44311, and James Campbell, Campbell Law Office, 2717 Manchester Road, Akron, OH 44319 (For Plaintiff-Appellant).
Paul L. Jackson and Karen D. Adinolfi, Roetzel & Andress, L.P.A., 222 South Main Street, Akron, OH 44308 (For Defendant-Appellee).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from a final judgment of the Portage County Court of
Common Pleas. Appellant, Annette Hayberg, challenges the merits of two discovery
orders and the trial court’s final decision granting summary judgment in favor of
appellee, Robinson Memorial Hospital, on all pending claims. As to the summary
judgment determination, appellant contends that the trial court erred in not concluding that the outcome of the underlying litigation was controlled by a prior opinion of this
court concerning the merits of her claims.
{¶2} In October 2003, appellant was a passenger in a motor vehicle involved in
a traffic accident. Appellant’s husband, Lewis Hayberg, was the driver of the vehicle
when the accident occurred, and his negligence caused the accident. Shortly afterward,
appellant was taken to appellee hospital where she was treated for injuries.
{¶3} The Hayberg vehicle was insured pursuant to an automobile liability policy
issued by Nationwide Insurance Company (“Nationwide”). In addition, since her
husband was employed by General Motors Corporation, appellant was covered under
the self-funded GM health insurance plan (“GM plan”). Anthem Blue Cross and Blue
Shield (“Anthem”) acted as the third-party administrator of the health plan.
{¶4} The total bill for appellant’s treatment at appellee hospital was $13,861.45.
Almost immediately after rendering the services, appellee sought payment from Anthem
under the GM plan for the amount of $11,295.39. The reason for the difference
between the two figures was due to the terms of a contract between appellee and the
GM plan. This contract provided that when an insured under the GM plan was treated
at the hospital, appellee would deduct certain “write-offs” from the total bill. As a result,
Anthem would only be billed for 89 percent of the actual charges.
{¶5} In November 2003, Anthem paid appellee’s bill for appellant’s treatment.
Approximately one month later, appellee was informed that, due to her husband’s
negligence, Nationwide would ultimately be liable for medical charges under the
automobile policy. Consequently, in December 2003, appellee sent a separate bill to
Nationwide for the entire amount owed for the hospital services. Upon reviewing the
2 matter, Nationwide paid appellee the entire sum of 13,861.45, $2,566.06 more than
what Anthem had paid. Although there was a considerable delay, ultimately appellee
reimbursed Anthem the entire sum it originally paid.
{¶6} In January 2005, appellant filed a negligence action against her husband
in the Summit County Court of Common Pleas. Nationwide settled for $100,000, the
policy limits. Because Nationwide already paid $32,574.06 for appellant’s medical
treatment and bills, its final payment to her was for $67,425.94. Of the $32,574.06
Nationwide deducted from the $100,000 limit, $2,566.06 was for the additional charges
it paid for the hospital services, in comparison to Anthem for the GM plan.
{¶7} In September 2006, appellant initiated her first legal action against
appellee hospital, essentially seeking to recover the additional amount Nationwide paid.
In one claim, appellant asserted that she was entitled to recovery because appellee’s
billing practices violated R.C. 1751.60(A). In the remaining aspects of the complaint,
she raised claims sounding in declaratory judgment, conversion, fraud, and unjust
enrichment.
{¶8} After the first action pended for approximately nine months, the parties
submitted competing motions for summary judgment. In January 2008, the trial court
issued a final order granting summary judgment in favor of appellee on all pending
claims. Appellant then pursued a direct appeal to this court.
{¶9} In Hayberg v. Physicians Emergency Service, Inc., 11th Dist. No. 2008-P-
0010, 2008-Ohio-6180, a majority of this court reversed the summary judgment ruling
and remanded the case to the trial court for further proceeding. Regarding appellant’s
claim under R.C. 1751.60(A), our lead opinion concluded that the statute did not permit
3 appellee to collect from Nationwide a greater amount than what it was entitled to receive
under its contract with the GM plan. As to the other four claims, the lead opinion further
held that appellant’s evidentiary materials had been sufficient to raise issues of material
fact pertaining to whether she was entitled to recover the funds for the additional
charges.
{¶10} Upon remand, appellant was granted leave to voluntarily dismiss her first
action against appellee. In April 2010, she instituted a new proceeding for recovery of
the $2,556.06 and other damages. Although appellant named other parties as
defendants in her original action, appellee hospital was the sole defendant named in the
amended complaint of her second action. The second action was based upon the same
allegations as appellant’s original case, and she asserted the same five claims for relief.
The only differences between the two cases was that appellant now included a breach
of contract claim against appellee, and made allegations concerning the need to certify
the new proceeding as a class action.
{¶11} As the second action went forward, appellant made at least two requests
to compel appellee to provide proper responses to certain interrogatories. Essentially,
she sought information concerning other patients of the hospital whose accounts may
have been treated in the same manner as her account. As part of her second request,
she moved the trial court for a protective order, under which appellee would be required
to provide the requested information after redacting any references to the actual identity
of the patients. The trial court denied appellant’s requests.
{¶12} While the second action was pending, the Supreme Court of Ohio issued
its decision in King v. ProMedica Health System, Inc., 129 Ohio St.3d 596, 2011-Ohio-
4 4200, addressing the proper application of R.C. 1751.60(A). In light of the express
holding in King, appellee submitted a second motion for summary judgment as to all six
claims in appellant’s amended complaint. Specifically, appellee maintained that the
King decision had the effect of overruling this court’s prior holding as to the viability of
appellant’s claim under that statute. The hospital further maintained that the trial court
was no longer bound to follow our earlier decision under the law-of-the-case doctrine.
Finally, regarding appellant’s remaining claims for relief, appellee asserted that
summary judgment was appropriate because each of the claims was predicated upon
the alleged violation of R.C. 1751.60(A).
{¶13} After appellant responded to appellee’s new motion and submitted her
own new motion for summary judgment, the trial court released its final order granting
appellee’s motion on all six pending claims. In addition to holding that the King decision
was controlling over our original opinion, the trial court agreed with appellee’s argument
as to the disposition of the other claims.
{¶14} In again appealing to this court, appellant has raised two assignments of
error for our review:
{¶15} “[1.] The trial court committed prejudicial error in granting [appellee’s]
motion for summary judgment based upon its opinion that the Supreme Court’s decision
in King v. ProMedica Health System, Inc., 129 Ohio St.3d 596, 2011-Ohio-4200, 955
N.E.2d 348, was an ‘intervening’ event that created an exception to the applicability of
the law-of-the-case and res judicata under this court’s prior decision in Hayberg v.
Physicians Emergency Service, Inc., 11th Dist. No. 2008-P-0010, 2008-Ohio-6180.
{¶16} “[2.] The trial court committed prejudicial error in denying [appellant’s]
5 motions to compel based upon its opinion that the requested documents were privileged
under HIPAA.”
{¶17} Under her first assignment, appellant contests the merits of the trial court’s
analysis concerning the continuing viability of this court’s holding in her original appeal
before us. See Hayberg, supra, 2008-Ohio-6180. According to appellant, the trial court
should have concluded that our prior ruling was still binding under the law-of-the-case
doctrine because the legal issue addressed in our opinion was readily distinguishable
from the issue considered by the Supreme Court in King. Based upon this, she argues
that the trial court should have followed our analysis of R.C. 1751.60(A) in disposing of
appellee’s second motion for summary judgment.
{¶18} As previously noted, the focus of this court’s discussion in appellant’s first
appeal was the viability of her claim under R.C. 1751.60(A). That statute delineates the
manner in which a health care provider can obtain payment for its services, and states
as follows:
{¶19} “Except as provided for in divisions (E) and (F) of this section, every
provider or health care facility that contracts with a health insuring corporation to provide
health care services to the health insuring corporation’s enrollees or subscribers shall
seek compensation for covered services solely from the health insuring corporation and
not, under any circumstances, from the enrollees or subscribers, except for approved
copayments and deductibles.”
{¶20} In both appeals to this court, appellant asserts that appellee violated the
foregoing statutory provision by obtaining a greater payment for its services from
Nationwide, the automobile insurer, than it did from the GM plan, the “health” insurer.
6 Appellant’s position is that, by seeking $2,566.06 more from Nationwide, and thereby
reducing the total sum she could receive in her settlement, appellee essentially was
taking payments for its services directly from her. In our first opinion in this matter, this
court adopted appellant’s position, expressly holding that appellee was not entitled
under R.C. 1751.60(A) to collect an amount greater than what it could obtain through its
contract with the GM plan. Hayberg, 2008-Ohio-6180, at ¶26.
{¶21} According to appellee and the trial court, the analysis of the lead opinion in
the first Hayberg appeal has been rejected by the Supreme Court of Ohio. In King,
2011-Ohio-4200, the plaintiff was treated at a local hospital after being involved in a
traffic accident. During her hospital stay, the plaintiff informed the staff that she had
health insurance with Aetna Health. Nevertheless, in seeking payment for its services,
the hospital only sent a bill to the plaintiff’s automobile carrier, Safeco. Based upon this,
the plaintiff brought an action against the hospital, in which each of her four claims was
predicated upon an alleged violation of R.C. 1751.60(A). Specifically, the King plaintiff
alleged that the hospital was required under the statute to seek payment solely from the
health insurer, not the automobile insurer.
{¶22} After the appellate court in King reversed the trial court’s dismissal of the
plaintiff’s entire complaint, the Ohio Supreme Court reinstated the trial court’s ruling. In
the first portion of its analysis, the King court quoted R.C. 1751.60(A) in its entirety, and
then concluded that the purpose of the statute was clear from its wording:
{¶23} “By its express terms, R.C. 1751.60(A) governs providers or health-care
facilities, health-insuring corporations and a health-insuring corporation’s insured. The
statute is applicable only when there is a contract between a provider and a health-
7 insuring corporation, and the provider seeks compensation for services rendered. The
legislature expressed its intent that the provider must seek compensation solely from
the health-insuring corporation and not from the insured.” Id. at ¶9.
{¶24} Applying the foregoing discussion to the facts of that case, the King court
held that R.C. 1751.60(A) had not been violated because the hospital never sought
payment directly from the plaintiff. Id. at ¶10. In the second part of its analysis, the
King court proceeded to address the plaintiff’s contention that the statute had to be
interpreted to obligate the hospital to never seek payment from the automobile insurer.
In support of that point, the King plaintiff emphasized that the statute expressly indicated
that payment for the provider’s services could “solely” be sought from the health insurer.
In rejecting this argument, the Supreme Court stated:
{¶25} “R.C. 1751.60(A) has limited application. The statute addresses the
contract between a provider and a health-insuring corporation. No other entities are
mentioned in the statute. The statutory language allowing a provider to recover ‘solely
from the health insuring corporation and not, under any circumstances, from the
enrollees or subscribers’ relates only to this contractual relationship. Here, the term
‘solely’ does not have the meaning given to it by the [appellate court]. Reading the word
in this manner would impermissibly render the phrase ‘and not, under any
circumstances, from the enrollees or subscribers’ superfluous. Rather, the word ‘solely’
is part of a phrase that defines the context of the statute; it means, in this context, to the
exclusion of a health-insuring corporation’s insured. This reading gives full meaning to
every word of the statute. Read in context, the statute’s language allowing a provider to
seek compensation from the health-insuring corporation and not the insured is limited to
8 the situation in which a health-care services contract is in place between a provider and
a health-insuring corporation. Therefore, we hold that R.C. 1751.60(A) applies only
when a provider seeks payment from a health-insuring corporation’s insured with which
the provider has entered into a contract.” Id. at ¶12.
{¶26} In attempting to distinguish the King decision from our holding in her first
appeal, appellant submits that King only stands for the proposition that R.C. 1751.60(A)
does not forbid a health-care provider from seeking payment for medical services from
an insurer other than the health insurer. Appellant further submits that the King opinion
never addressed the issue of whether that statute places a limit upon the amount that a
health-care provider can obtain from an automobile insurer. According to appellant, our
first opinion in this matter concluded that R.C. 1751.60(A) mandates that the amount the
hospital can collect from the automobile insurer is limited to the sum which the health
insurer would be required to pay under its separate contract with the hospital.
{¶27} Even if it is assumed that appellant has properly construed the holding in
our original opinion, her attempt to distinguish the King holding is unpersuasive. As to
this point, the King court emphasized that R.C. 1751.60(A) only refers to health-care
providers and health insurers; the statute does not contain any reference to automobile
insurers or other types of insurers. As a result, the provision has no application to an
automobile insurer in any respect. In other words, R.C. 1751.60(A) is not controlling as
to the amount which a hospital can seek to recovery from an insurer other than the
health insurer.
{¶28} Appellant also attempts to distinguish our first opinion on the grounds that,
unlike the King plaintiff, she was essentially required to pay compensation to appellee
9 hospital. Again, she indicates that, since her husband’s automobile carrier was billed an
extra $2,566.06, she was deprived of that sum in her final settlement. However, this
point is irrelevant under the King analysis. According to the Supreme Court, R.C.
1751.60(A) only applies when there is a contractual relationship between the hospital
and the insurer. Under the undisputed facts of this case, the only contractual
relationship was between appellee and the GM plan. Since no contract existed
between appellee and Nationwide, the statute is simply inapplicable to appellee’s
separate request for payment from Nationwide.
{¶29} To the extent that the King opinion held that R.C.1751.60(A) has no effect
upon a health-care provider’s ability to obtain compensation for medical charges from
an automobile insurer, it directly conflicted with our holding in appellant’s original direct
appeal. Thus, the question becomes whether the trial court was still obligated to follow
our precedent in ruling upon appellee’s second motion for summary judgment.
{¶30} Under the law-of-the-case doctrine, a prior decision of a reviewing court is
to remain binding upon both the trial and appellate court in all ensuing proceedings in
the case. Weller v. Weller, 11th Dist. No. 2004-G-2599, 2005-Ohio-6892, ¶15, quoting
Nolan v. Nolan, 11 Ohio St.3d 1, 3-4 (1984). Generally, the doctrine does not allow the
trial court to alter the appellate mandate in any respect. Id. However, an exception to
the application of the doctrine exists. A trial court is not required to follow the prior
appellate holding when there has been an intervening decision from the Supreme Court
of Ohio. See Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769.
{¶31} As to our case, the Supreme Court’s King opinion is an intervening
decision rejecting our prior holding in this case as to the proper application of R.C.
10 1751.60(A). Therefore, the trial court was no longer bound by our prior ruling, and was
required to apply King. Pursuant to King, appellee is entitled to summary judgment on
appellant’s declaratory judgment claim and her claim under R.C. 1751.60(A).
{¶32} Regarding appellant’s remaining four claims, the trial court concluded that
summary judgment was likewise appropriate because each of those claims were based
upon the underlying assertion that R.C. 1751.60(A) was violated. As to this aspect of
the trial court’s decision, in setting forth her factual allegations for her four remaining
claims in her amended complaint, appellant did not make any references to the statute.
Nevertheless, upon reviewing the assertions upon which the claims were based, we
hold that appellee was entitled to prevail on the four claims.
{¶33} Before both the trial court and this court, appellant asserts that when
appellee billed her husband’s automobile insurer for the medical services, it could not
seek payment for more than what it was entitled to receive pursuant to its contract with
the health insurer, the GM plan. In other words, it is appellant’s position that, even
when appellee was dealing with the automobile insurer, it was still bound to only recover
the amount which was allowed under the contract between her healthcare provider and
appellee.
{¶34} By predicating her four remaining claims solely upon the existence of the
contract between appellee and the GM plan, it is evident that appellant assumed that
she is a proper party to enforce the contract for her benefit. However, appellant was not
a party to the appellee/the GM plan contract. Accordingly, appellant can enforce
appellee’s contract with the GM plan only if she is an intended third-party beneficiary of
that contract. See Huntington National Bank v. Val Homes, Inc., 11th Dist. No. 2011-G-
11 3021, 2012-Ohio-526, ¶37.
{¶35} “‘(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of a right to
performance in the beneficiary is appropriate to effectuate the intention of the parties
and either.
{¶36} “‘(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
{¶37} “‘(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
{¶38} “‘(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.’” Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40 (1988),
quoting Restatement of the Law 2d, Contracts (1981), Section 302, 439-440.
{¶39} In the present case, appellant failed to submit any evidentiary materials
showing that, in executing the underlying contract, appellee and the GM plan
specifically agreed that appellant would be a third-party beneficiary. Furthermore,
Anthem’s payment of a discounted amount for services rendered by the hospital does
not directly satisfy any separate obligation the GM plan owes to appellant; i.e., Anthem’s
only duty to her is to pay a sum to appellee. Additionally, the circumstances
surrounding the execution of the contract does not indicate that the GM plan intended
for appellant to receive any benefit from the reduced payment provision.
{¶40} Because appellant is an incidental beneficiary, she did not have
enforceable rights from the contract between appellee and the GM plan, and appellee
was not required to bill the automobile insurer the same amount as it would Anthem.
12 {¶41} Given that appellant did not have any enforceable contractual rights as to
appellee, appellee did not breach the contract between the GM plan and appellee when
it billed the automobile insurer, Nationwide, for the entire sum owed for its services.
Moreover, appellee did not deprive appellant of any funds belonging to her, and its
subsequent receipt of the additional $2,566.06 was not unjust or the result of fraudulent
behavior. Thus, appellant cannot satisfy the elements of breach of contract, conversion,
unjust enrichment, or fraud.
{¶42} As part of our disposition of the first appeal for this case, the lead opinion
had a separate analysis as to the merits of the fraud, conversion, and unjust enrichment
claims. Furthermore, this separate analysis was not overturned by the Supreme Court’s
holding in King. Nevertheless, that analysis was not embraced by the other judges.
Hence, the lead opinion’s prior analysis was not binding on the trial court or this court.
{¶43} Pursuant to the foregoing, this court concludes that there are no genuine
disputes regarding any of the material facts of this case, and that appellee is entitled to
judgment as a matter of law on all six claims in appellant’s amended complaint.
Appellant’s first assignment is without merit.
{¶44} Under her second assignment, appellant challenges the trial court’s denial
of her two requests to compel appellee to provide information concerning other hospital
patients who may have been subject to the same billing practices that formed the basis
of her six claims. Appellant asserts that the trial court erred in holding that the patient
information she sought was privileged.
{¶45} The information sought regarding other hospital patients would have only
been relevant to the decision of whether the case should be certified as a class action
13 under Civ.R. 23. Given our holding under the first assignment, even if appellant had
found that other patients had been treated in the same manner as her, none of the other
patients would have been able to state viable claims due to R.C. 1751.60(A) and King.
Thus, even if it is assumed that the requested information is not privileged, any error
would be harmless. Accordingly, her second assignment of error is likewise without
merit.
{¶46} Pursuant to the foregoing, neither assignment has merit. Thus, it is the
order of this court that the judgment of the Portage County Court of Common Pleas is
affirmed.
DIANE V. GRENDELL, J., concurs in judgment only, with a Concurring Opinion.
TIMOTHY P. CANNON, P.J., dissents with a Dissenting Opinion.
____________________
DIANE V. GRENDELL, J., concurs in judgment only, with a Concurring Opinion.
{¶47} I concur in the judgment and analysis of this court, finding King v.
Promedica Health Sys., Inc., 129 Ohio St.3d 596, 2011-Ohio-4200, to be applicable and
holding that summary judgment was appropriate as to appellant, Annette Hayberg’s,
claim for a violation of R.C. 1751.60. While I also concur that the trial court’s grant of
summary judgment should be affirmed, as to the remaining counts, my analysis as to
these issues differs.
{¶48} In Hayberg v. Physicians Emergency Servs., Inc., 11th Dist. No. 2008-P-
0010, 2008-Ohio-6180, a prior appeal in this same matter, in my dissenting opinion, I
14 found that R.C. 1751.60 did not prevent the hospital from receiving payment from the
automobile insurer, since it did not stand in the shoes of the insured, Hayberg. Similar
analysis was employed by the Ohio Supreme Court in its subsequent holding in King.
The Supreme Court held that a hospital did not violate R.C. 1751.60 by seeking
payment for medical services from the insured’s automobile insurance provider, due to
the fact that the statute applies only to health-care insurance providers and subscribers.
Since the insured herself was not billed by the hospital, no violation of R.C. 1751.60
occurred. King at ¶ 14. This is the analysis applied by the majority in the present case.
Given my prior position and the Supreme Court’s holding, I believe the majority’s
decision is proper as to the statutory violation claim.
{¶49} On this point, the dissenting judge’s main contention in this case is that
Nationwide’s payment to Robinson Memorial essentially forced Hayberg to pay the
amount billed to Nationwide, since this money was subtracted from her settlement
proceeds. While this may be the effect of the holding in this case, it cannot change the
conclusion that R.C. 1751.60 applies only when billing a health-care insurance provider
or subscriber. Hayberg was not billed in this matter. Nationwide represents a third
party’s interests in these proceedings and does not stand in the shoes of Hayberg.
{¶50} Properly construed, R.C. 1751.60 prohibits Robinson Memorial from
seeking compensation from Hayberg. It does not prevent the hospital from receiving
payment from a third party willing to assume liability for the debt. Assuming, arguendo,
that Robinson Memorial was limited to only receiving payment from Anthem, then
Nationwide, not Hayberg, would have a potential claim under statute.
{¶51} While the dissenting judge also argues that King is distinguishable, the
15 King court rejected the same argument that is raised by Hayberg: since the health
insurance benefits provided by the automobile insurer were an asset to her, she was
essentially billed when Nationwide paid Robinson Memorial. King, 129 Ohio St.3d 596,
2011-Ohio-4200, at ¶ 10. As was held in King, the fact that the benefits were an asset
to Hayberg does not mean that the request for payment from those assets from
Nationwide qualified as a request for compensation from the insured as prohibited by
R.C. 1751.60.
{¶52} As to the remaining claims, the writing judge holds that they should be
dismissed due to the fact that Hayberg was not an intended beneficiary of the contract
between the hospital, Robinson Memorial, and the medical insurer, the General Motors
Plan, which was administrated by Anthem. This is where our analysis differs. Since
these claims appear to be related to the statutory violation claim, they should be further
evaluated to determine if Hayberg has any valid claims outside of the existence of the
contract. Based on this, I see no reason to depart from my analysis as to these issues
in my dissent in the prior appeal, which finds that summary judgment is proper on other
grounds and that the underlying factual premise of this case does not support any of the
remaining claims.
{¶53} As to the Fraud claim, the elements include, in part, “a representation or,
where there is a duty to disclose, concealment of a fact, * * * made falsely * * * with the
intent of misleading another into relying upon it.” (Citation omitted.) Cohen v. Lamko,
Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984). Hayberg claimed that Robinson
Memorial had a duty to disclose certain facts to Nationwide in processing the claims for
Hayberg’s medical expenses, such as the facts that neither Hayberg nor Robinson
16 Memorial had a contractual right to payment under the Nationwide liability policy and
that Anthem had paid those expenses at a discounted rate.
{¶54} Accepting these allegations as true, Hayberg has failed to make any
argument that Robinson Memorial made false statements to her or concealed
information from her that it was under a duty to disclose. Hayberg cannot raise a claim
of Fraud based on what Robinson Memorial failed to disclose to Nationwide or Anthem.
There is simply no evidence that Fraud was committed against Hayberg.
{¶55} Hayberg’s Conversion and Unjust Enrichment claims are premised on
Robinson Memorial reducing the amount of money directly available to her under the
Nationwide policy by accepting Nationwide’s payment of $13,861.45 for her medical
expenses after those expenses had been paid by Anthem at the discounted rate of
$11,295.39, which allowed Robinson to retain payment in excess of what it was owed.
{¶56} “[C]onversion is the wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from his possession under a claim
inconsistent with his rights.” (Citation omitted). Joyce v. Gen. Motors Corp., 49 Ohio
St.3d 93, 96, 551 N.E.2d 172 (1990). Unjust Enrichment entails the “retention of [a]
benefit by the defendant under circumstances where it would be unjust to do so without
payment.” (Citation omitted.) Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183,
465 N.E.2d 1298 (1984).
{¶57} These claims must fail because Robinson Memorial did nothing wrongful
by accepting payment from Nationwide and reimbursing Anthem the money it had
previously paid, as has been discussed above and by the majority. The actual cost of
Hayberg’s medical expenses was $13,861.45. This is the amount paid by Nationwide
17 on her behalf and with her acquiescence. While it might be financially advantageous for
Hayberg to have Anthem be responsible for paying her medical expenses, financial
advantage is not sufficient to constitute a violation of R.C. 1751.60 or the common law
claims raised in the present case.
{¶58} I concur in the writing judge’s analysis and reasoning for affirming
summary judgment as to the claim related to the alleged violation of R.C. 1751.60, but
concur in judgment only as to the remaining claims for the foregoing reasons.
TIMOTHY P. CANNON, P.J., dissenting.
{¶59} I respectfully dissent from the opinion of the majority. I agree that, to the
extent it may apply, we are governed by the direction of the Ohio Supreme Court in King
v. ProMedica Health Systems, Inc., 129 Ohio St.3d 596, 2011-Ohio-4200; however, I
believe the facts of this case are clearly distinguishable. I cannot imagine the Supreme
Court, in deciding King, envisioned that any medical provider might do what Robinson
Memorial Hospital (the “Hospital”) did in this case. Putting a stamp of approval on what
the Hospital has done here would be an unjust and unwarranted result.
{¶60} Although the facts are simple, the analysis is not. Anita Hayberg was in a
serious automobile accident and incurred medical bills, including a bill from the Hospital
in the amount of $13,861.45. She is insured for those expenses through the General
Motors Health Plan, which is administered by Anthem. Anthem had a contract with the
Hospital, wherein the Hospital essentially agreed to accept 89% of charges billed as
payment in full from Anthem patients. In accordance with this provider agreement,
18 Anthem paid $11,295.39 of Hayberg’s bill to the Hospital; the bill was thus considered
paid in full, with nothing more due from Hayberg.
{¶61} As a result of the accident, there was also a Nationwide Insurance liability
policy available to Hayberg, through the negligent insured, with limits of up to $100,000.
This entire limit was available to Hayberg in the event the value of her claim equaled or
exceeded $100,000. Hayberg’s health insurance contract with Anthem contained a
typical subrogation provision: she was required to reimburse Anthem from the proceeds
of the Nationwide coverage for any amount Anthem paid out for Hayberg’s medical
expenses that resulted from the negligence of Nationwide’s insured.
{¶62} However, it is clear and admitted that Nationwide owed nothing to the
Hospital. Further, it is clear that Hayberg owed nothing to the Hospital. There is no
subrogation agreement between Hayberg and the Hospital; her liability to the Hospital is
dictated only by the terms of her Anthem health coverage and by the provider
agreement between Anthem and the Hospital. Anthem paid the bill, and the Hospital
agreed to accept this as payment in full from Hayberg.
{¶63} After the Hospital found out there was potential liability coverage available
to Hayberg through Nationwide’s insured, the Hospital sent a bill to Nationwide for the
full amount of Hayberg’s bill—in spite of the fact that her bill had already been paid in
full.
{¶64} At oral argument, counsel for the Hospital acknowledged that Nationwide
did not owe the Hospital anything. However, counsel attempted to justify the Hospital
sending the bill to Nationwide by stating Hayberg was required to pay back Anthem for
the amount it advanced to the Hospital. This is a nonsensical and completely
19 disingenuous argument. First, the Hospital is not a party to the subrogation provision
between Anthem and Hayberg. Second, the bill sent by the Hospital to Nationwide
($13,861.45) exceeded the amount of Hayberg’s obligation to Anthem ($11,295.39).
{¶65} The flaw in the Hospital’s entire approach to this situation is seen most
clearly in the Hospital memorandum dated November 1, 2002, attached to Hayberg’s
opposition to the Hospital’s motion for summary judgment. In this memorandum, the
Hospital sets forth its policy with regard to patients who have been injured in an
accident. It directs the Hospital administration to submit a bill to any Med Pay insurance
of the patient and/or the insurance company for the other party who may have been at
fault. It further states that when “both Medical Insurance and Auto Insurance are given,
input the Auto as primary and the Medical as secondary.” The Hospital has no authority
to do this.
{¶66} The liability insurance company is not liable to the Hospital for anything;
those funds are owed to the injured party. If the liability coverage is reduced, it has the
potential of directly reducing the amount due to the injured party. In fairness, it has the
potential of costing the injured party only in those cases where the value of the claim
exceeds the liability coverage limits. Nevertheless, it was alleged and proven that, as a
result of the Hospital billing Nationwide, there was a direct cost to Hayberg—
Nationwide’s payment to the Hospital directly reduced the amount that Hayberg was
entitled to and would have otherwise received. It is this result that distinguishes these
facts from those in King.
{¶67} Perhaps the most disturbing aspect of the Hospital’s policy is found in
paragraph 8 of the above-referenced memorandum, which states: “If the patient
20 refuses to cooperate, make the account Self-Pay, 998-03, and input ‘Auto Accident’ in
the group field. Leave any medical insurance from a prior visit in the system as
secondary.” (Emphasis added.) The Hospital wants information from the tortfeasor’s
liability insurance carrier in order to bill it for the full amount of the injured party’s bill,
even if the patient has health insurance to cover her entire bill in full. The Hospital has
set up a system that punishes the patient for refusing to provide this information (i.e.,
refusing “to cooperate”). The Hospital has no authority to do this, and the patient is
under no obligation to provide this information. By refusing to bill the insured patient’s
health insurance carrier and, instead, billing the patient directly as “Self-Pay,” the
Hospital is essentially bludgeoning the patient into submission. There can be no more
glaring example of a violation of R.C. 1751.60, and no more compelling evidence of the
need for the protection the statute provides.
{¶68} To summarize, as a result of an automobile accident caused by another
party’s negligence, we have an injured party, whose car may have been significantly
damaged, who has been hospitalized, and who has quite possibly missed work. The
injured party—fully insured—now begins to receive hospital bills for the full amount of
the hospital stay (or for the difference between the full amount and the amount the
tortfeasor’s liability coverage has paid), even though the health insurance carrier has
paid these same bills, in full. This cannot be what the King Court had in mind.
KING DISTINGUISHED
{¶69} The Supreme Court in King, 2011-Ohio-4200, stated that “R.C. 1751.60(A)
applies only when a healthcare provider seeks payment from an insured.” Id. at ¶2.
The Court noted that King, the insured patient, did not allege the healthcare provider
21 sought compensation directly from her. It is unclear from the facts of King whether the
medical coverage billed to the medical payments provider was a subrogated amount. It
is also not clear whether the value of King’s medical claim exceeded the available
liability coverage. These facts are necessary to determine whether the billing in
question violated R.C. 1751.60(A). If the medical coverage was not subrogated, billing
the liability insurance company for that amount cost King nothing. Even if the medical
coverage was subrogated, so long as the value of the claim was within the applicable
liability coverage limits, billing the liability provider for the medical coverage would have
cost King nothing.
{¶70} However, in the case sub judice, it is agreed by all that the value of
Hayberg’s claim exceeded the $100,000 limit of liability coverage. No one disputes that,
as a result of this billing, the Hospital received $2,566.06 more than the contract rate it
agreed to accept, and Hayberg received $2,566.06 less than she otherwise would have
received. This is exactly what R.C. 1751.60(A) is intended to guard against.
{¶71} The King Court further stated: “Because King was not asked to make any
payment for the services she received, appellants did not violate R.C. 1751.60(A).” Id.
at ¶10. This analysis does not apply in this case. The Hospital sent a bill directly to
Nationwide, even though all agree it did not owe the Hospital any money. Why
Nationwide paid the bill without a release or permission from Hayberg, the only person
to whom it was liable, remains one of the great mysteries of this case. However, even
assuming the Hospital is tacitly permitted by King to send such a bill, it is necessary to
know whether the value of the liability claim exceeds the limits of coverage in order to
determine whether the billing violates R.C. 1751.60(A). In this case, the value of the
22 claim clearly did. Therefore, even though the bill was not sent to the injured
party/patient, payment to the Hospital came directly out of a fund that would otherwise
have been paid to Hayberg. Whether Hayberg is asked to make payment, or Hayberg
is billed, or the liability carrier that owes money to Hayberg is billed, is a distinction
without a difference. Although Hayberg did not receive a bill for the amount that
exceeded her health insurance contract rate, the evidentiary material submitted clearly
establishes that she did pay it.
{¶72} The amount of $13,861.45 was deducted directly from Hayberg’s
settlement proceeds. Therefore, the Hospital did, in effect, seek payment from Hayberg
because she was obligated to reimburse Anthem only $11,295.39. This is the contract
rate the Hospital should have accepted as payment in full, and did receive as payment
in full prior to discovering the available liability coverage. Without question, the
evidentiary material establishes Hayberg’s settlement was $2,566.06 less than she
otherwise would have received due to the Hospital billing Nationwide.
{¶73} The Hospital argues that the General Motors Health Plan is not a “health
insuring corporation” as described in R.C. 1751.60. I do not agree. However, this
sheds light on a more important threshold issue that has not been directly addressed in
this case. I believe Hayberg should prevail without regard to that statute.
{¶74} The Hospital has set forth no theory of liability suggesting Nationwide was
in any way liable to the Hospital. At the time the Hospital billed Nationwide, it had
already been paid in full by Anthem, thereby discharging Hayberg from any further
obligation. If Nationwide had not paid the bill, the Hospital would have no cause of
action to collect the money. It could not allege that Hayberg owed the Hospital money:
23 after Anthem paid the bill in full, Hayberg no longer owed the Hospital anything. How
then could the Hospital allege Nationwide owed it anything? As stated earlier, in
response to the question at oral argument of why the Hospital would even send a bill to
Nationwide, the response was that Hayberg owed subrogation money to Anthem. But
Hayberg clearly only owed subrogation to Anthem in the amount of $11,295.39.
HAYBERG 1
{¶75} In Hayberg I, 11th Dist. No. 2008-P-0010, 2008-Ohio-6180, I concurred in
judgment only. The lead opinion included numerous conclusory statements concerning
the Hospital’s liability with respect to the contract and fraud claims. I agreed only that
there were questions of fact with regard to those claims, but did not agree with the
conclusions. Those causes of action are not precluded by R.C. 1751.60 and should, in
fact, survive as the law of the case. The Supreme Court decision in King does not
determine them.
{¶76} As the majority points out, the King Court emphasized that R.C.
1751.60(A) only refers to healthcare providers and health insurers. The statute does
not contain any reference to automobile or other types of insurers. However, I do not
believe it can be argued that King created a new cause of action for healthcare
providers that would allow them to pursue liability insurance carriers in situations such
as this. By its own admission, the Hospital solicited and received money from
Nationwide to which Hayberg, not the Hospital, was entitled and was thus unjustly
enriched. R.C. 1751.60(A) has no application with respect to this cause of action. At a
minimum, there is a question of fact as to whether Hayberg should be entitled to recover
under this theory as set forth in her complaint.
24 {¶77} In addition, with respect to Hayberg’s third party beneficiary theory, the
majority concludes that Hayberg is an “incidental” beneficiary to the contract between
Anthem and the Hospital. The majority states that by billing Nationwide, the Hospital
“did not deprive appellant of any funds belonging to her[.]” This analysis suggests the
Hospital had as much right to the Nationwide liability proceeds as Hayberg. However,
the exact opposite is true. Nationwide would only plausibly owe the Hospital if Hayberg
still owed something to the Hospital. She did not owe the Hospital any money.
Because they had no legal right to the funds, there is at least a question of fact whether
the Hospital did, in fact, deprive Hayberg of funds belonging to her.
{¶78} With regard to the fraud claim, there is a plethora of evidence that, if
believed by a jury, could support a finding of fraud. The Hospital’s billing practice alone
could support such a finding. The evidence appears undisputed that the Hospital billed
Anthem and was paid in full under the provider agreement. Neither Anthem nor
Hayberg owed the Hospital anything further. Thereafter, the Hospital discovered
Hayberg was making a liability claim, so it obtained the information regarding this claim
and billed Nationwide. As previously explained, this was done even though, as
admitted by the Hospital, there is no theory under which Nationwide was liable to the
Hospital. Nationwide paid the full amount, as opposed to the subrogated amount, of the
bill. After being paid twice for the same services, the Hospital tells no one: neither
Hayberg nor Anthem. Hayberg thereafter files suit and discovers Nationwide paid the
full amount of the bill to the Hospital. The evidence appears unrefuted that the Hospital
received overpayment on December 5, 2003. The overpayment generated an entry on
a December 27, 2003 “credit balance report” which shows amounts overpaid by
25 Hayberg/Anthem. This report also apparently reflected overpayments on the accounts
of many other patients. This report contained, again apparently without refute, 537
pages of credit balance information on patients. On January 31, 2004, the Hospital
simply zeroed out Hayberg’s account without notifying anyone of the overpayment. On
October 3, 2006, Hayberg filed her first lawsuit. The Hospital did not begin to
investigate the overpayment until prompted to do so on December 15, 2006, more than
three years after it had been overpaid. There is a jury question regarding the intent and
magnitude of this conduct, and whether it constituted fraud.
{¶79} Even if the Hospital provided some theory under which Nationwide would
be liable to it, there is still a very practical need for caution in allowing medical providers
to bill direct to the liability carrier: the value of the claim is often not known until many
months or years after the expenses are incurred. When it is not yet known whether the
value of the medical claim exceeds the liability coverage, medical providers should not
be permitted to receive more than the contract rate they have agreed to accept and
must follow the dictates of R.C. 1751.60. Additionally, permitting medical providers to
directly bill liability carriers raises the issue, for trial purposes, of the reasonable value of
services, and what values should be considered for purposes of recovery. See
Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, and amended R.C. 2315.20.
{¶80} Finally, I would address the merits of Hayberg’s request for an order
compelling discovery, which was considered moot by the majority in light of its
determination of the first assignment of error.
{¶81} For all of the foregoing reasons, I respectfully dissent.