The Collateral Source Rule in Ohio after Robinson v. Bates


In a tort action in Ohio, a defendant is barred from introducing evidence of insurance payments to a plaintiff. This is known as the collateral source rule. The objective of the collateral source rule is to prevent liable defendants from benefiting from payments made to the plaintiff by third parties.

Collateral Source in Ohio

The collateral source rule has been part of the common law in Ohio since 1970. And on April 7, 2005, the General Assembly enacted the collateral source rule into law. Ohio Revised Code § 2315.20(A) states:

(A) In any tort action, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury, death, or loss to person or property that is the subject of the claim upon which the action is based, except if the source of collateral benefits has a mandatory self-effectuating federal right of subrogation, a contractual right of subrogation, or a statutory right of subrogation or if the source pays the plaintiff a benefit that is in the form of a life insurance payment or a disability payment. However, evidence of the life insurance payment or disability payment may be introduced if the plaintiff's employer paid for the life insurance or disability policy, and the employer is a defendant in the tort action.

Since most every case involves a right to subrogation, 2315.20(A) serves as a bar to evidence of payment to the plaintiff in almost every case.

Write-Offs

Although the collateral source rule remains the law in Ohio, the Ohio Supreme Court recently held in Robinson v. Bates that insurers had the right to introduce evidence of "write-offs", or the amount of money a hospital or health-care provider actually accepted from the plaintiff’s insurance company. The reasoned that evidence of "write-offs" was relevant to a jury's determination of the reasonableness of a plaintiff's medical expenses.

As a practical matter, if a defendant is allowed to admit evidence of "write-offs", it will be easy for a jury to infer that a plaintiff has insurance. However, the collateral source rule, which is still law in Ohio, prevents defendants from entering this information into evidence. As a result, Robinson has the effect of eliminating some of the protections established by the collateral source rule.

Available Defenses

However, there are a number of potential defenses to Robinson. The accident in Robinson occurred prior to the enactment of 2315.20. Therefore, the Robinson court did not determine whether the language of 2315.20 applied to the case. As a result, a number of Ohio courts at the trial level have determined that the holding of Robinson does not apply to events that took place after the enactment of 2315.20. Therefore, for any injuries suffered after April 7, 2005, the holding of Robinson may not apply.

Another defense to Robinson in a tort action involves filing a motion in limine, arguing that evidence of "written off" amounts, while potentially relevant, are not admissible under Ohio Rule of Evidence 403. Rule 403 bars evidence when the "probative value is outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."

First, evidence of write-offs has little relevance. Ohio Revised Code §2317.421 states that bills are prima facie evidence of the reasonable value of medical services. Allowing the defense to show evidence of the amounts actually accepted is likely to confuse a jury. This is very likely to be the case considering that any reference to the amounts charged and lesser amounts received cannot refer to insurance. As a result, any jury will not have a basis to judge the reasonable value of the medical care, or will infer that the plaintiff has insurance.

In conclusion, Robinson v. Bates, while not explicitly curtailing the collateral source rule, has the practical effect of informing a jury that the plaintiff has received a benefit from their insurer, or from the government. However, there are ways for a plaintiff’s attorney to argue against Robinson and protect their client’s rights under the collateral source rule.

*article courtesy of Friedman, Domiano, & Smith LPA.