Ohio Supreme Court Update
I was going to do a post on self-defense, but that'll have to wait until after the holidays. The Ohio Supreme Court handed down a couple of cases today, which served as the functional equivalent of sticking a lump of coal into the stockings of personal injury and criminal defense lawyers.
In Robinson v. Bates, the plaintiff's medical care provider had charged her $1,900. Her health insurance company had paid $1,300, and the provider had written off the rest. Of course, one of the items of damages in a PI case is the amount of the medical bills. What was it in this case -- the amount the provider charged, or the amount that was actually paid?
The plaintiff argued that evidence of what was actually paid shouldn't come in because of the collateral source rule, which essentially prohibits evidence of plaintiff's insurance benefits. The Court disagreed, holding that the proper question was the reasonable and necessary expenses incurred by the plaintiff, and that both figures were therefore allowable in evidence.
This is in line with the gradual deterioration of the collateral source rule over the years. RC 2315.20, for example, which took effect in April of 2005, rolled back the rule by allowing evidence of benefits received by the plaintiff.
But this ruling substantially accelerates that deterioriation. 2315.20 didn't allow the evidence of benefits if they were subrogated, that is, if the plaintiff had to pay back the benefit provider from the proceeds of the litigation. In this case, 2315.20 wouldn't have had any effect: since the insurance company did have a subrogation claim, the fact that they'd paid $1,300 wouldn't have been allowed, and the plaintiff could have submitted the $1,900 bill as proof of her damages.
Under the court's ruling in Robinson, the jury gets to hear both figures. The Court's argument that the jury can then decide which figure best approximates the actual cost of plaintiff's care is a bit disingenuous; it's hard to see a jury concluding, "Well, the medical provider only got $1300, but we're going to pretend that the plaintiff actually had to pay $1900 and award her that amount in specials." The Court notes that this is ultimately a question for the legislature:
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.
Given our state legislature, you don't have to call the psychic hotline to figure out how that's going to turn out.
On the plus side, the Supreme Court held that the court of appeals was correct in reversing trial court's grant of a directed verdict to defendant on the open and obvious doctrine. This would normally make me happy; as my legion of faithful readers know, I'm not particularly fond of the doctrine, and my antipathy only deepened earlier this week when I got hammered in the trial of my slip and fall case. As I'd mentioned, the judge had booted me out on summary judgment, but I knew better, so I got him reversed in the court of appeals. Took the jury less than an hour to tell us who'd been right and who'd been wrong on that one. It was a construction site accident, and it didn't help that defense counsel had a picture of the site blown up to a size where it looked like you needed a monster truck to negotiate the clods of dirt that lay clustered around. He put the picture on an easel in opening statement, then spent the rest of the trial doing crossword puzzles. Every couple of hours, he'd look up, go "Pssst!" to the jury, and point to the picture. That's all it took.
Guess I showed that judge, huh?
Anyway, the Supreme Court did say in Robinson that the case shouldn't have been kicked out, but it's not that big a deal. This was a case involving not just a landowner, but a landlord, and for reasons I'll discuss some other time, the courts have held that open and obvious doesn't apply where a landlord has a statutory duty to keep the property safe and in repair. Which he did here.
The damage to criminal defense attorneys was less, and much more anticipated. In State v. Azbell, the Court held
For purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C), a charge is not pending until the accused has been formally charged by a criminal complaint or indictment, is held pending the filing of charges, or is released on bail or recognizance.
I had a post back in June on the case when they did the oral argument, and predicted that the appellate court's decision that speedy trial was violated would get reversed. As I noted then, the Supreme Court's ruling is in keeping with prior 8th District decisions.
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