[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




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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.




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