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Next on the counter Akron Bar Association vs

VIEWS: 2 PAGES: 13

									Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 1


>> HEAR YE, THE HON. SUPREME COURT OF OHIO IS NOW IN SESSION.

>> YOU MAY BE SEATED. GOOD MORNING, LADIES AND GENTLEMEN. WE
ARE HERE. THE FIRST CASE, VIRGINIA KING V. PROMEDICA HEALTH
SYSTEM, INC., ET AL., CASE NO. 2010-1236 MR. COLE?

>> CHIEF JUSTICE O'CONNOR, MAY IT PLEASE THE COURT, I WOULD LIKE
TO RESERVE FIVE MINUTES FOR REBUTTAL. THIS CASE ASKS THE COURTS
TO DETERMINE THE CORRECT INTERPRETATION OF RC60A. IT BOILS DOWN
TO ONE STRAIGHT PROPOSITION. IT IS NOT A COORDINATION OF BENEFITS
STATUTE. IT IS NOT INTENDED TO AND DOES NOT REPEAL OR AMEND THE
COMPLEX COORDINATION OF BENEFITS PROVISION THAT THE GENERAL
ASSEMBLY HAS ESTABLISHED AND THE OHIO DEPARTMENT OF
INSURANCE HAS SUPPLEMENTED. IT IS PLAIN LANGUAGE IN CONTEXT. AS
IT MUST BE. IT DOES NOT ADDRESS THE QUESTION OF HOW TO ALLOCATE
LIABILITY AMONGST MULTIPLE POTENTIAL INSURERS AT ALL. AS IT HAS
BEEN EXPRESSLY STATED, IT IS DIRECTED AT INSULATING INSURERS
FROM PERSONAL LIABILITY FOR MEDICAL EXPENSES IN THE EVENT THAT
THERE INSURERS DO NOT PAY. VIRGINIA KING RECEIVED TREATMENT
FOR INJURIES THAT SHE SUFFERED IN CONNECTION WITH AN
AUTOMOBILE ACCIDENT. TWO SEPARATE INSURERS HAD BEEN
CONTRACTED TO COVER THAT RISK. SHE HAD HEALTH INSURANCE
THROUGH EDNA.

>> HOW WAS THE AUTOMOBILE INSURANCE AVAILABILITY MADE KNOWN
TO THE HEALTH CARE PROVIDER?

>> THAT IS OUTSIDE THE RECORD, YOUR HONOR. IF WE WANT TO GO
OUTSIDE OF THE RECORD, I BELIEVE THAT SHE WAS ASKED ON THAT
MISSION. I KNOW THAT THE OHIO COURT NATION THAT THE STATUTE,
WHEN ONE OF THEM BECOMES THE PRIMARY INSURER, THE OTHER
BECOMES THE SECONDARY. THEY PAY ONLY IF THERE IS SOMETHING
AFTER THE PRIMARY TAKES THE OBLIGATION. SHE DOES NOT ALLEGE
ANY WHERE IN HER COMPLAINT THAT PRO MEDICAL VIOLATED THOSE
STATUTES. RATHER, SHE ATTENDS THE BILL A ROUND RC1751-60A.

>> WHO WAS THE PRIMARY HERE?

>> IT HAS NOT BEEN ESTABLISHED ON THE RECORD. AS A GENERAL
MATTER, MEDICAL EXPENSE COVERAGE DOES NOT COORDINATE. ONE OF
THE RULES IS THAT IF IT LACKS PROVISION, IT IS PRIMARY. GENERALLY
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 2
SPEAKING, AUTOMOBILE INSURANCE MEDICAL EXPENSE COVERAGE IS
PRIMARY. I ONLY HESITATE BECAUSE THAT POLICY IS NOT PART OF THE
RECORD.

>> WHY IS THAT? TO MOVE FOR A JUDGMENT ON THE PLEADINGS?

>> PROMEDICA DISMISSED THE COMPLAINT ON THE GROUNDS -- TO HIS
PRIMARY AND WHO IS SECONDARY, IT DOES NOT MATTER TO THE
QUESTION.

>> WHO IS THE PREMIUM ON THE INSURANCE?

>> THE OWNER.

>> PAYING THE PREMIUM ON THE CAR INSURANCE.

>> I BELIEVE THAT IT IS HER.

>> THE HOSPITAL GETS TO DECIDE TO EXHAUST FOR BENEFITS UNDER --
IF THE HOSPITAL HAD NOT DONE THIS, THEY WOULD HAVE PAID THE BILL
AND SHE COULD HAVE USED HER PAY TO FILL IN THE GAPS? OR NOT? NO,
RIGHT?

>> I APPRECIATE THAT QUESTION, BECAUSE IT GOES TO A FUNDAMENTAL
MISCONCEPTION. THE NOTION THAT THE HOSPITAL SHOWS. THE
HOSPITAL DID NOT CHOOSE. THE HOSPITAL DOES NOT GET TO DECIDE IF
THE AUTOMOBILE INSURER IS PRIMARY OR SECONDARY. AS THE
EMPLOYEES ADMIT, IT IS MADE BY THE INSURERS, NOT THE HOSPITAL. IN
THE COORDINATION OF BENEFITS PROVISION, 39-2 LEVIN, EXPRESSLY
MAKES THE INSURANCE IN HEALTH INSURANCE CORPORATION'S
EXPRESSLY SUBJECT OF BENEFITS.

>> WHAT IS ALLEGED IS THAT YOUR CLIENT HAS STARTED A PATTERN OF
DOING WHAT THEY ARE DOING HERE BECAUSE, IF THEY GET PAID BY THE
HEALTH INSURER, THEY HAVE A CONTRACT, A PREFERRED PROVIDER
CONTRACT THAT THEY GET PAID SUBSTANTIALLY LESS IF THEY BILLED
THE AUTOMOBILE INSURER AT RETAIL. THAT IS BASICALLY WHAT IS
GOING ON HERE, RIGHT?

>> THAT IS WHAT THE OTHER SIDE IS ALLEGING. A COUPLE OF
RESPONSES. FIRST OF ALL, THE PATTERN YOU ARE REFERRING TO IS THE
PATTERN OF FOLLOWING THE COORDINATION OF BENEFITS STATUTE.

Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 3
>> NO ONE IN THE DISCOUNT HAS RATED THE RETAIL.

>> SOME INSURERS WITH PROVIDED ARRANGEMENTS HAVE 50 CENTS ON
THE DOLLAR. YOUR HONOR, THAT IS A RESULT OF THE NEGOTIATION
PROCESS. IT OCCURS BETWEEN THE HEALTH INSURANCE CORP. AND THE
HOSPITAL. AS TO WHY THESE REFERRED RATES SHOULD BE PASSED
ALONG TO OTHER INSURERS, IT IS NOT CLEAR THAT THE OTHER SIDE IS
SAYING THAT THE AUTO INSURERS SHOULD HAVE PAID AT THE OTHER
RATE. THEY ARE SAYING DEPTH RC1751-60A IS A HAND GRENADE AND
YOU CANNOT BILL THE AUTO INSURER AT ALL. EXPRESSLY COVERING
AUTOMOBILE MEDICAL EXPENSE COVERAGE, THEY SAY WHAT YOU HAVE
TO DO AND TO HIS PRIMARY AND SECONDARY.

>> IS THE PREFERRED PROVIDER CONTRACT THAT IS THE UNDERPINNING
HERE, IS IT PROHIBITED BY ANY PORTION OF THIS STATUTE?

>> ABSOLUTELY NOT.

>> IS THERE ANYTHING IN THE STATUTE THAT ALLOWS FOR IT OR
DISCUSSES IT AT ALL, SPECIFICALLY? COORDINATION OF BENEFITS, I
KNOW WHICH YOU ARE TALKING ABOUT THERE, BUT ARE THERE ANY
STATUTE THAT TALK ABOUT PREFERRED PROVIDER CONTRACTS?

>> AS ENTERED BY THE RULES, THERE IS THE EXPRESSED
CONTEMPLATION OF THE POSSIBILITY THAT ONE OF THE INSURER'S IN
THE SCHEME MAY PAY PURSUANT TO THE CALLS IN A NEGOTIATED
CONTRACT RATE, WHILE OTHERS WILL PAY ACCORDING TO WHAT THEY
CALL USUAL AND CUSTOMARY FEES THAT TALK ABOUT WHAT TO DO IN
THAT SETTING.

>> IN OTHER WORDS, THIS HAS BEEN ACKNOWLEDGED AS A COMMON
PRACTICE.

>> IT IS IN THE HIGHER DEPARTMENT OF INSURANCE RULE
PROMULGATED PURSUANT TO ITS AUTHORITY UNDER THESE STATUTES
AND IT IS EXPRESSLY RECOGNIZED AS THAT POSSIBILITY.

>> IN THE OPINION OF THE TRIAL COURT, THERE WAS A FOOTNOTE
REGARDING A STANDING ISSUE UNDER 17 61.60A. IS THAT SOMETHING
THAT WE NEED TO CONSIDER IN THIS APPEAL? IS THERE ANY REASON FOR
US TO CONSIDER WHETHER THERE IS STANDING UNDER THIS STATUTE?


Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 4
>> STANDING OR CAUSE OF ACTION, THE OTHER GROUND BELOW THE
COURT BRIEF WAS THAT THERE WAS NO CAUSE OF ACTION FOR THE
INDIVIDUAL. THE IDEA BEING THAT THE OHIO DEPARTMENT OF
INSURANCE IS THE EXCLUSIVE AGENT THAT CAN FORCE THE ALLEGED
VIOLATIONS OF THIS STATUTE. WE HESITATED TO RAISE IT. AS YOU
KNOW, IT WAS NOT INCLUDED WITHIN THE PROPOSITION ACCEPTED WITH
A LOT OF THIS CASE. I BELIEVE THAT WITHIN STATUTORY PARTICIPATION
BULLETINS, THERE IS NO CAUSE OF ACTION HERE AND I BELIEVE THAT
WOULD HAVE BEEN AN ALTERNATE GROUNDS ON THE TRIAL COURT'S
ORIGINAL DECISION TO SWITCH IN THE CASE. IT WAS BRIEFED IN THE
COURT BELOW AND THE COURT DID NOT REACH THAT QUESTION.

>> RC1751-60A SPECIFICALLY SAYS THAT HOSPITAL CANNOT GO BACK
AGAINST THE INSURED ONES THAT HAVE UTILIZED THE POLICY OF
INSURANCE. TO THE JUSTICES POINT, IF SHE HAD HAD UNCOVERED
MEDICAL BILLS UNDER THE CONTRACT THAT YOU HAD NEGOTIATED, SHE
COULD HAVE USED HER MAD COVERAGE UNDER THE AUTO INSURANCE
PLAN TO COVER THAT. YOU HAVE IN EFFECT TAKEN AWAY FROM HER
THE ABILITY TO COVER WHATEVER UNPAID MEDICAL BILLS REMAIN.

>> IT STARTS FROM THE NOTION THAT WE MADE SOME DECISION ABOUT
WHO SHOULD. I CANNOT STRESS THIS ENOUGH. THE HOSPITAL DOES NOT
DECIDE. AS THEY SAY IN THEIR OWN BRIEF, IT IS UP TO THE INSURER TO
DECIDE TO HIS PRIMARY. SAFECO, ETNA, DETERMINING WHO SHOULD
PAY FIRST.

>> YOU ARE SAYING THAT DAY AT SOME POINT, NOT RELATED TO THIS
CASE, HAVE SOMETHING PURSUANT TO STATUTE?

>> THE WAY THAT IT WORKS IN PRACTICE IS THAT THE HOSPITAL BILLS
ALL OF THE POTENTIALLY RESPONSIBLE INSURERS AND THEY SORT IT
OUT. THEY OFTEN HAVE ACCESS TO INFORMATION THAT THE PROVIDER
DOES NOT HAVE WITH RESPECT TO THE PARTICULARS OF THE POLICY.
INITIALLY THERE IS CONFUSION WITH CHECKS COMING IN FROM BOTH
SOURCES. RESOURCES NEED TO BE WRITTEN TO ONE OR THE OTHER. IT IS
NOT US ARGUING, THE OTHER SIDE ADMITS THAT IT IS UP TO THE
INSURERS. WE DID NOT DETERMINED THAT THE AUTOMOBILE EXPRESS
COVERAGE SHOULD PAY FIRST. LET IN EVERY RECORD NOT NEGOTIATED
BY THE HOSPITAL, THEY ONLY DO IT WITH SECONDLY, THE OHIO
HOSPITAL ASSOCIATION ALLEGES THAT NOT TO RULE IN YOUR FAVOR
WOULD CAUSE CATASTROPHIC, ECONOMIC PROBLEMS FOR HOSPITALS. IS
IT AN ECONOMIC DECISION OR A FORD NATION BENEFIT ISSUE?

Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 5
>> IN OUR VIEW, IT IS A COORDINATION OF BENEFITS ISSUE. I THINK THAT
WE DO GET INTO SEVERE ECONOMIC CONSEQUENCES FOR HOSPITALS.
OUR PRINCIPAL POINT IS TO LOOK AT THE LANGUAGE OF THE STATUTE.
THERE IS AMBIGUITY OF THE SCOPE COVERED. GIVEN THAT, IT IS
RESOLVED WITH THE ORDINARY TOOLS OF STATUTORY INTERPRETATION,
SHOWING THAT THIS IS NOT INTENDED TO COVER QUESTIONS OVER THE
MULTIPLE RESPONSIBLE INSURERS AND WHO SHOULD PAY. IT IS THE
SPECIFIC FOCUS OF THE COORDINATION OF BENEFITS STATUTE. IF THE
MEDICAL EXPENSE COVERAGE IS SECONDARY HERE AND HEALTH
COVERAGE IS PRIMARY, HEALTH INSURANCE CORPORATIONS WILL PAY
AND MEDICAL EXPERIMENTS BENEFITS WILL BE AVAILABLE. IF THE
MEDICAL EXPENSE COVERAGE IS PRIMARY, IT WILL PAY FIRST AND IF
EXHAUSTED BILL GO TO THE HEALTH INSURANCE CORP. AT THAT POINT.
BUT IT IS NOT A DECISION THAT THE HOSPITAL GETS TO MAKE.

>> COULD VIRGINIA KING COULD HAVE DESIGNATED WHO OF THE
INSURERS SHOULD HAVE BEEN BILLED?

>> I DO NOT BELIEVE SO. A BRIEF IN SUPPORT OF CHOICE MEANS HOLLOW.
IT IS NOT THE CHOICE OF THE PERSON THAT HOLDS THE POLICY, IT IS THE
CHOICE OF THE GENERAL ASSEMBLY.

>> YOU ARE ARGUING ABOUT RC1751-60A. THE WAY THAT I READ THAT, IT
SAYS THAT EVERY PROVIDER HEALTH CARE THAT CONTRACTS WITH THE
HEALTH INSURANCE CORP. TO PROVIDE HEALTH SERVICES SHALL SEEK
COMPENSATION FOR COVERED SERVICES SOLELY FROM THE HEALTH
AND SCHURING CORP. THAT WAS PRETTY MUCH WHAT THE COURT OF
APPEALS DECIDED. IT WAS THE BASIS FOR THEIR DECISION. WHILE WE
HAVE A GREAT DISCUSSION ABOUT THE COORDINATION OF BENEFITS,
THE STATUTES THAT YOU ARE ASKING US TO LOOK CAPS, A 17-5160, THAT
IS WHAT THE CHARGES OF THE APPELLATE COURT, WHICH OSTENSIBLY,
IN THEIR VIEW, LIMIT YOUR RIGHT OF RECOVERY SOLELY TO THIS
CARRIER. WHAT IS YOUR RESPONSE TO THE DECISION OF THE COURT,
SPECIFICALLY TO THIS ARGUMENT RAISED BY THE APPELLATE COURT?

>> I WOULD LIKE TO RESERVE THE REMAINDER OF MY TIME, BUT IT DOES
NOT STOP IT SOLELY FROM THE HEALTH INSURANCE CORPORATION. IT
DOES THAT SAY SOLELY AT THE END OF THE SENTENCE.

>> NOT UNDER ANY CIRCUMSTANCES FOR BEEN ROLLING SUBSCRIBERS
EXCEPT FOR COPAYMENT AND DEDUCTIBLE.


Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 6
>> THE KEY POINT IS THAT AS ENACTED WITH LANGUAGE INDICATED,
INSULATING BE INSURED FROM THE SHIFT OF THE LIABILITY IF THE
HEALTH CARE GOES INSOLVENT.

>> WE HAVE NO INSOLVENCY HERE.

>> RIGHT. THIS STATUTE IS NOT DESIGNED TO ADDRESS MULTIPLE
INSURERS.

>> WHAT DOES IT MEAN IN YOUR VIEW?

>> THE QUESTION THEN BECOMES WHO IS INCLUDED IN THE GROUP TO
THE STATUTE APPLIES? OF WE JUST DO NOT BELIEVE THAT IT IS OTHER
INSURERS.

>> WE WILL GIVE YOU THE FULL 13 SECONDS THE TO HAVE LEFT.

>> MR. MURRAY?

>> THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT?

>> WE ASK YOU, BEFORE YOU GET INTO YOUR PRESENTATION, COULD
VIRGINIA KING HAVE SELECTED TO WAS GOING TO PAY THIS BILL?

>> SHE SHOULD HAVE, COULD HAVE, AND DID DIRECT TO THE BILL
SHOULD HAVE BEEN SENT TO. IT SHOULD HAVE BEEN SENT DIRECTLY, OR
THROUGH THE EMPLOYER, AT THE PREFERRED PROVIDER RATE. SHE PAID
FOR IT OUT OF COVERAGE. ONE WAS THE MAD PAY COVERAGE.

>> SHE PAID HER OWN HEALTH INSURANCE COVERAGE?

>> DIRECTLY OR THROUGH THE EMPLOYER.

>> BETWEEN THE TWO, THE HOSPITAL HAS A BILL. COULD VIRGINIA HAVE
SAID -- YOU MAY NOT BILL MY HEALTH INSURANCE COMPANY, YOU
MUST TO BILL MY AUTOMOBILE? OR VICE VERSA?

>> SHE COULD HAVE DIRECTED THE HEALTH PROVIDER --

>> WOULD HAVE BEEN BINDING?

>> THEY MAY SOLELY LOOK TO THE HEALTH INSURANCE CARRIER.

Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 7
>> THEY CANNOT GET IT FROM HER. WE ALL AGREE ON THAT, CORRECT?
SHE DOES NOT HAVE TO DIG INTO HER OWN POCKET TO PAY THESE. BUT
WITH HER CHOICE AS A PROVISION IN THE STATUTES SAY THAT PEOPLE
THAT ARE SITUATED, SUCH AS YOUR CLIENT, HAVE THE ABILITY TO
DIRECT WHAT SOURCE OF INSURANCE PAYS FOR THESE TYPES OF
SERVICES?

>> SHE PAID FOR THAT RATE BY PAYING FOR BOTH INSURANCES.

>> IS IT REFERENCED IN THE STATUTE? YOU THINK THAT BECAUSE SHE
OWNS AN INTEREST IN BOTH, THEY OVER A DUTY OF COVERAGE AND
THAT SHE GETS TO SELECT WHERE IN THE STATUTE IT SAYS THAT SHE
HAS THIS OPTION?

>> IF YOU LOOK AT ALL OF 175160 AND THE OTHER STATUTES THROUGH
81, THEY TAKE INTO ACCOUNT THE CONCEPT OF A PREFERRED PROVIDER
AGREEMENT. AND A DISCOUNT, IF YOU WILL. THESE ONLY COME INTO
EFFECT WHEN THE PERSON HAS AN INSURED, BARGAINED FOR, PAID FOR
A REDUCED RATE. IT TAKES INTO ACCOUNT THE CONCEPT THAT THERE
HAS BEEN A NEGOTIATION BETWEEN AN INSURANCE COMPANY AND A
HEALTH PROVIDER FOR A FAIR AND REASONABLE RATE FOR THIS
MEDICAL SERVICE. THE NEGOTIATION IS THE RIGHT OF THE HEALTH
INSURER TO PAY FOR A CONTRACT RATE THAT THEY ARE ENTITLED TO
BE CHARGED. THEY HAVE ANOTHER GREAT THAT THEY PAY FOR THAT
COVERS ONLY CERTAIN KINDS OF EXPENSES. SOME OF THEM NOT
COVERED BY HEALTH INSURANCE. THEY HAVE THE RIGHT TO PAY FOR
THIS AND DIRECTED THAT. THE PARTIES HAVE SIGNIFICANT
DISAGREEMENTS, BUT UNFORTUNATELY WE HAVE A SITUATION WHERE
THERE IS NO RECORD THAT NEEDS TO BE DEVELOPED. PROMEDICA IS
CLAIMING THAT THE BILL ALL INSURANCE COMPANIES. THAT IS NOT
SUPPORTED BY THIS RECORD. IN FACT, THEY SHOULD HAVE GONE BACK
FOR HOW THE SYSTEM IS DESIGNED.

>> THE HOSPITAL ATTORNEY INDICATED THAT THIS WAS NOT A DECISION
MADE BY THE HOSPITAL. THAT THIS WAS NOT A CHOICE. THAT THE
INSURANCE COMPANIES, THAT THE CARRIERS, HAVE AN AGREEMENT
AMONGST THEMSELVES. THEY DISCUSS WHO HAS PRIORITY AND TO HIS
SECONDARY. IT WAS NOT THE HOSPITAL THAT MADE THAT CHOICE, THAT
DECISION. IS THAT TRUE?

>> THERE IS NO RECORD IN THE STATEMENT OF THAT WHATSOEVER.

>> WHAT IS THE PRACTICE HERE?
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 8

>> THAT WHAT THE HOSPITALS DO, AS ESTABLISHED IN PREVIOUS CASES,
BUT THEY DO IS THAT THEY BILL THE HIGHEST INSURANCE THAT THEY
DO NOT HAVE A PREFERRED PROVIDER WITH. THEY PAY TO THAT AT THE
HIGHEST RATE IN THEY ARE GOOD TO GO.

>> ARE WE CREATING A BRACE TO THE MEDPAY COVERAGE OF THE
AUTOMOBILES AND THE PATIENTS AT THE HOSPITAL AS TO WHO CAN GET
TO THE HOSPITAL FIRST?

>> IT COMPLETELY CREATES CHAOS IN THE SYSTEM. ABSOLUTELY NOT.
WE ARE GENERALLY DEALING WITH SERIOUSLY INJURED PEOPLE WITH
LIMITED AMOUNTS OF COVERAGE. AS YOU PUT IT, THE PURPOSE OF THE
SYSTEM IS TO MAKE PEOPLE WHOLE. BY ALLOWING THIS TO OCCUR AT
LETTING SOMEONE GRAB FUNDS PAID FOR BY THE INSURER AT A RATE
ABOVE WHAT IS AGREED TO IN THE MARKETPLACE, THE MARKET IS VERY
IMPORTANT. THEY ARE DECIDING WHAT IS FAIR AND REASONABLE.

>> IF THERE WAS NO HEALTH INSURANCE, WOULD PROMEDICA BE ABLE
TO BILL FOR THE AUTO INSURANCE?

>> YES.

>> AT THE MARKET RATE AND NOT THE DISCOUNTED RATE?

>> THAT WOULD DEPEND UPON THE AUTO INSURANCE POLICY, WHICH WE
DO NOT HAVE ON THE RECORD.

>> DO YOU KNOW OF ANY INSURANCE OF AUTO POLICIES THAT GO
OUTSIDE THAT GATE?

>> STATE FARM, TO MY KNOWLEDGE --

>> [UNINTELLIGIBLE]

>> I DID NOT HEAR YOU.

>> DOES THIS COVERAGE HAVE IT?

>> NO, IT DOES NOT.

>> THEY COULD HAVE BILLED MISS KING FOR THE FULL AMOUNT IF SHE
HAD NO HEALTH INSURANCE?
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 9

>> CORRECT. THE INSURANCE COMPANY, INCLUDING THIS POLICY,
INSURED THE ESTIMATE FOR CLAIM.

>> DO NOT CLOUD THE ISSUE.

>> IF THEY CAN BILL HER, LET'S SAY THAT THERE IS HEALTH INSURANCE
THAT COVERS THE DAMAGES. CAN THEY BILL THE EXTRA?

>> IT DEPENDS ON THE NATURE OF THE BILLING. I AM NOT TRYING TO BE
DIFFICULT, BUT IF WE LOOK AT THE DECISION MADE BY THIS COURT, THIS
COURT HAS DECIDED THAT THE BILL --

>> FOR GET HOW MUCH THAT THEY PAY. CAN THEY BILL THE EXTRA
THAT THE HEALTH INSURANCE DOES NOT PAY?

>> THEY CAN SEND THE BILL, BUT THE INSURED MAKES A CLAIM THAT
SHOULD NOT BE PAID. MEDPAY HAS CONDITIONS THAT PRECEDE IT.

>> WOULD SHE BE LIABLE, PERSONALLY? UNTIL SOMEONE ELSE PAYS IT?
SHE IS LIABLE PERSONALLY, IS SHE NOT?

>> THAT IS A UNIQUE ASPECT TO THE MEDICAL BUSINESS. WE KNOW
THAT THIS IS AN INCENTIVE TO BE BILLED AS SIGNED.

>> YOU ARE SAYING THAT SHE IS NOT LIABLE? THAT IT COSTS $1,000 AND
SHE IS NOT LIABLE?

>> IF SHE AGREES THOSE SERVICES ARE RENTED.

>> JUST ANOTHER ISSUE OF PROOF.

>> ONE THAT WILL MAKE LIFE VERY DIFFICULT.

>> THAT DO NOT CONFUSE ROBINSON WITH THIS. THIS IS NOT A
ROBINSON CASE. THIS IS A CASE AS TO WHETHER SHE PAID, MEDPAY
PAID, OR HER HEALTH INSURANCE. YOU HAVE TOLD ME THAT ALL THREE
ARE ON THE BOOK.

>> CORRECT.

>> HOW IS THEIR STANDING IN THIS PARTICULAR CASE WHEN THE BILL
WAS NOT SENT DIRECTLY TO HER?
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 10

>> SHE ELMS BE INSURANCE BENEFITS AND SHE COULD HAVE DIRECTED
IT TO HER ALTHOUGH INSURANCE BENEFITS. DIRECTING THE OTHER
BILLS, SHE WAS NOT ABLE TO DO THAT.

>> YOU ARE SAYING THAT IT IS THE IMPLICATION THAT BY HAVING
MEDPAY PAY HURST, THAT SHE WAS BEING BILLED.

>> THE TWO BOND RATES CREATE STANDING ON THE UNDEVELOPED
RECORD. THE ALLEGATION THAT SHE HAD TWO SEPARATE CONTRACT
RATES THAT SHE OWNED CREATES DAMAGE FOR STANDARD.

>> THERE IS NO QUESTION THAT SHE WAS NOT BILLED DIRECTLY?

>> BUT FOR THE FACT THAT SHE WAS CHARGED MORE THAN WHAT SHE
HAD BARGAINED FOR IN THOSE SERVICES IN HER HEALTH CARE.

>> ARE YOU ALLEGING HOW MUCH SHE HAD REMAINED IN MEDICAL
BILLS BECAUSE OF THE ORDER IN WHICH THEY PAID?

>> WE WERE PRIMARILY SEEKING TWO CAUSES OF ACTION.

>> MR. MURRAY, THE ISSUE SEEMS TO ME, AND I WAS SEEING THE
RECORD IN THIS CASE, WE ARE MAKING AN ASSUMPTION BECAUSE IT
WAS A MOTION TO DISMISS. WE DO NOT KNOW THE COORDINATION OF
BENEFITS. IT SIMPLY IS NOT THERE, CORRECT?

>> THE BIG PROBLEM THAT WE ARE SUFFERING FROM IS THE FACT THAT
THIS SYSTEM IS DESIGNED TO LET THESE ISSUES MATURE IN THE LOWER
COURT. THE PREFERENCE IS NOT TO BE HERE, IN MY UNDERSTANDING.
LOWER COURTS NEVER ADDRESSED THE COORDINATION OF BENEFITS.
INTERESTINGLY ENOUGH, WHEN THEY WERE ASKED TO WEIGH IN ON
THESE ISSUES, THEY NEVER MENTIONED COORDINATION OF BENEFITS.
THE SECOND ONE STANDS OUT IN SUPPORT OF HOURS, OUR POSITION,
WHICH NEVER MENTIONS COORDINATION OF BENEFITS. WE HAVE A TRIAL
COURT AND AN APPELLATE COURT IN WHICH THE FIRST BULLETIN ONLY
CAME DOWN WHEN THE STATE DECIDED IF IT WAS WITHIN STATE
JURISDICTION.

>> MR. MURRAY, THE TRIAL COURT DOES SAY THAT THE STATUTE DOES
NOT CONTEMPLATE SITUATIONS IN WHICH THERE ARE OTHER
RESPONSIBLE PEERS. IF THE COURT WERE TO ADOPT CONSTRUCTION,
DEFENDANTS UNDER ANY CIRCUMSTANCES WOULD NOT BE ALLOWED TO
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 11
SEEK COMPENSATION, THEREBY CONTRADICTING THE COORDINATION OF
THE INSURANCE BENEFIT LAWS.

>> IN THE CONCEPT OF A DEVELOPED RECORD, THERE ARE SO MANY
FACTORS. MANY ARE PUT OUT THAT ARE NOT SUPPORTED BY THE
RECORD. CERTAINLY, THE DECISION OR BULLETIN FROM THE
DEPARTMENT OF INSURANCE IN THE JURISDICTION A BRIEF, IN THE SIXTH
CIRCUIT FIRM THERE IS A THIRD APPELLATE COURT THAT HAS WEIGHED
IN ON THE APPELLATE COURT. ONE CORPSE, THEY MAKE THE POINT THAT
I HAVE BEEN ATTEMPTING TO MAKE, WHICH IS THAT THE BENEFIT OF A
CONTRACT, A HEALTH INSURANCE CONTRACT, WHENEVER IT IS UNDER,
THAT IS THE BENEFIT THAT BELONGS TO THE INSURER.

>> THE ACTUAL DOLLAR AMOUNT HERE THAT WAS ASSOCIATED WITH
SERVICES RENDERED, WAS THERE EXCESS'? OR DID THE FIRST INSURANCE
COMPANY TAKE CARE OF ALL OF IT?

>> IT IS COMPLICATED, AND NOT IN THE RECORD. ULTIMATELY WE NEVER
GOT INTO EXPLORING THE DETAIL OF WHO PAID FOR WHAT, FRANKLY.

>> WHAT PROVIDER PAID HERE?

>> CORRECT.

>> THE AUTOMOBILE CARRIER.

>> YES.

>> NOTHING IMPLICATED THE NEED FOR A PAYMENT FROM THE MEDICAL
PROVIDER.

>> IN AN ESTABLISHED RECORD, THERE WOULD BE.

>> BUT THE OVERAGE, THE RESPONSIBILITY OF THE PATIENT, THE
IMPLICATION WAS THAT THE SECONDARY INSURER WOULD TAKE CARE
OF THE PAVEMENT.

>> CORRECT.

>> NEITHER MEDPAY NOR THE INSURANCE WERE EXCEEDED, NO MATTER
WHO DID THE PAYMENT, CORRECT?

>> MEDPAY WAS EXCEEDED, BUT THAT IS NOT IN THE RECORD.
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 12

>> YOU SEEM TO BE ASKING US TO RETURN THIS BACK TO THE TRIAL
COURT, BUT WE HAVE BEEN INTERVENING BULLETIN FROM THE
DEPARTMENT OF INSURANCE THAT MAKES IT CLEAR THAT THIS IN THEIR
INTERPRETATION DOES NOT APPLY SOLELY TO HEALTH-CARE
PROVIDERS. THAT IT COULD ALSO APPLY TO ACCIDENT INSURERS. HOW
DO YOU DEAL WITH THAT ON REMAND? WE HAVE A CLARIFICATION THAT
DISPATCHES DEFERENCE TO THEIR INTERPRETATION OF THEIR OWN
STATUTE. WHAT DO YOU DO WITHOUT BULLETIN?

>> I DO NOT AGREE. SAYING THAT THE NUMBER ONE PURPOSE OF THE
STATUTE IS TO PROTECT THE PATIENT FROM HAVING TO PAY ANYTHING
ABOVE THAT, THEY DO NOT ADDRESS COORDINATION OF BENEFITS AT
ALL. THE ISSUE WILL BE LOOKED AT AS WHAT THE POLICY SAYS. THAT
WE SHOULD NOT ALLOW THE MEDICAL PROVIDER TO DO COORDINATION
OF BENEFITS BETWEEN THE INSURANCE COMPANY. WE HAVE NO
PROBLEM WITH BILLING ALL OF THE INSURANCE COMPANIES. FOR WHAT
THEY WOULD COUNSEL FOR THE PATIENT --

>> PROVIDER RATES ARE IN NEGOTIATION BETWEEN TWO PARTIES. IT IS
NOT THE STANDARD FOR INSURANCE. IF THAT IS YOUR ARGUMENT, YOU
MIGHT AS WELL SET ALL HOSPITAL RATES AT PREFERRED PROVIDER
RATES.

>> THAT IS THE PURPOSE OF 175160. WHETHER THE PREFERRED PROVIDER
AGREEMENT IS TO ENSURE THAT THE PATIENT WILL BE PROTECTED FROM
COMING OUT OF POCKET. IF YOU HAVE SOMEONE ABSORBENT, YOU ARE
COMING OUT OF POCKET. WITH THAT THE DEPARTMENT OF INSURANCE,
THIS STATUTE IS DESIGNED TO PROTECT THE ENROLLEE.

>> THIS COMPLAINT WAS ORIGINALLY STYLED AS A CLASS-ACTION,
CORRECT?

>> CORRECT.

>> IF YOU WERE TO PREVAIL IN THIS COURT, WHAT WOULD BE THE NEXT
STEP?

>> TO DEVELOP A RECORD AND SEEK CLASS CERTIFICATION AND A
DECLARATION THAT WHAT THEY HAVE BEEN DOING IT IS UNLAWFUL
AND THAT, GOING FORWARD, PROMEDICA WOULD OPERATE ONLY AT THE
PREFERRED PROVIDER RATE.

Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
May 25, 2011
Case No. 2010-1236
Page 13
>> THANK YOU.

>> MR. COLE, YOU HAVE SAVED 13 SECONDS. I WILL GIVE YOU 30.

>> I WILL BE BRIEF. THERE IS NO RECORD NECESSARY. THIS IS ABOUT
STATUTORY INTERPRETATION. IF THE COORDINATION OF BENEFITS WILL
WAS VIOLATED, IT CAN BE ADDRESSED. WE DO NOT NEED A RECORD TO
ANSWER WHAT IT MEANS. I WOULD LIKE TO COME BACK TO THE
QUESTION THAT SHE STARTED US WITH. CAN SHE DIRECT THIS THE WAY
THAT SHE WANTS? PLANNING WITHOUT THE CONSENT OF THE
BENEFICIARY? EACH PERSON CLAIMING BENEFITS SHALL PROVIDE ANY
INFORMATION NECESSARY FOR THE PROVISION OF THIS SECTION. THE
COORDINATION OF BENEFITS STATUTE DETERMINES WHO PAYS FIRST.
NOT THE HOSPITAL. NOT MISS CAIN. IT IS THE INSURERS TO DO THAT
ANALYSIS.

>> WE WILL TAKE THE MATTER UNDER THE HEISMAN AND HE WILL BE
NOTIFIED OF OUR OPINION. THANK YOU, GENTLEMEN.




Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .

								
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