AMCNO Voices Strong Opposition on HB 361

On April 7, 2005, Ohio’s legal climate changed significantly when SB 80, a new tort reform law, became effective. This comprehensive piece of legislation made significant reforms to our legal system and ensures that both plaintiffs and defendants are treated fairly in the courts. HB 361 sponsored by State Representative Dennis Murray would reverse the effect of a key provision of SB 80 related to the accuracy of evidence presented to a jury.

The letter from the AMCNO indicates that our membership has an interest in the fair and forthright computation of damages, and in ensuring that jury awards are based on actual damages incurred, not on hypothetical or inflated “damages”. Physicians, including those in the Northern Ohio community, are often litigants in a wide variety of civil litigation. Additionally, physicians play a critical role in the outcome of other litigation, even when they are neither plaintiffs nor defendants, but rather are serving as expert witnesses or testifying as treating physicians. Physicians are also directly involved by way of providing medical treatment for injuries sustained and by way of negotiating payments with health care insurers.

Under HB 361 any original billed charges for medical treatment would be presumed to be the reasonable value of those services. Furthermore, evidence of any reductions or waivers of those fees would not be admissible in court. In our opinion, this bill would perpetuate a misconception in jury trials – by preventing the jury from hearing that huge amounts of medical bills were written off or written down by doctors and hospitals, pursuant to pre-negotiated agreements. If an injured party receives the full amount billed rather than the actual amount paid, he/she would receive a windfall. The effect of HB 361 would result in economic damages awards in personal injury and wrongful death cases based upon billed medical charges that no party is obligated to pay, thereby allowing plaintiffs’ attorneys and their clients to profit, based on false damages.

This bill could also have an effect on tort reform caps because these caps are calculated, in many cases, as a multiplier of the “economic damages” – which includes the amount of medical bills. Ohio Revised Code section 2315.18 limits the amount of non-economic damages in most tort cases to the greater of $250,000 or three times the amount of economic damages up to $350,000 per plaintiff and $500,000 per occurrence. Thus, not only does HB 361 provide for windfall economic damages, it would also create higher non-economic damages due to falsely exaggerated economic damages.

In the Robinson v. Bates decision (112 Ohio St.3d 17, 2006-Ohio-6362) the Ohio Supreme Court recognized that “because no one pays the write-off, it cannot possibly constitute payment of any benefit from a collateral source.” According to the Court, both the original medical bill and the amount accepted as full payment are admissible to prove the reasonable value of the medical treatment. The Robinson court recognized that:

[B]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.”

The AMCNO believes that because HB 361 would limit the evidence of medical damages in personal injury and wrongful death cases to only the amount of the original pre-write-off medical bill, it would allow plaintiff lawyers to provide inaccurate information to juries which would ultimately impact their determination of damages. AMCNO has been at the forefront in opposition to this issue by joining the Ohio Association of Civil Justice which was formed to oppose these kinds of issues and also by signing on to an amicus brief now before the Ohio Supreme Court (see Northern Ohio Physician Jan/Feb 2010).