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Hayberg v. Robinson Memorial Hospital Foundation

Court of Appeals of Ohio, Eleventh District

June 28, 2013

ANNETTE HAYBERG, Plaintiff-Appellant,

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2010 CV 0647.

Timothy H. Hanna, and James Campbell, Campbell Law Office (For Plaintiff-Appellant).

Paul L Jackson and Karen D. Adinolfi, Roetzel & Andress, L.P.A., (For Defendant-Appellee).



{¶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 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., 11 th 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 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-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] 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. 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 plaintiffs 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 plaintiffs 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 ...

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