The Honorable Mary Margaret Rowlands has been a trial court judge in the Summit County Court of Common Pleas since 2008.  She recently issued a decision that is now before the Ohio Supreme Court and has managed to rile up the insurance companies quite a bit.

Boiled down, what is at stake is a simple question:  If you go out and spend your dollars to acquire health insurance, does a drunk driver who has injured you then get to use your health insurance to reduce his responsibility?

The answer, until recently, was no.  Lawyers refer to this, rather cumbersomely, as the “collateral source rule.”  The Ohio Supreme Court described it as “the judicial refusal to credit to the benefit of the wrongdoer money or services received in compensation of the injury from sources other than the wrongdoer.”  Under more recent Ohio Supreme Court rulings, the existence of health insurance reductions are now going to the jury in trials across Ohio, but Plaintiffs are still strictly forbidden from ever mentioning to the jury that the wrongdoer has insurance.  (Funny how that works.)

What’s more, this has proven to be a confusing quagmire for the judge, jury, and parties.  Why was a particular medical bill reduced?  Why was this bill reduced more than that bill?  How much premium did the plaintiff pay to obtain the health insurance?  How many months or years of premium payments should the judge allow into evidence? 

Accordingly, Judge Rowlands, in a recent case, ruled that a defendant would have to present expert testimony explaining how the reductions help the jury understand the reasonable value of the medical treatment, and that without this further supporting evidence, the write-off amounts would not be admissible.  The Defendant appealed, but the Court of Appeals agreed with Judge Rowlands.

The answer to this question has a significant effect on an individual verdict, so it is important to everyday citizens.  But it means literally millions of dollars to the insurance industry, as they not only use this to heavily discount verdicts, but to lower offers on all claims across the board.  It is actually quite a courageous act for a jurist, like Judge Rowlands, to stand up to this pressure and forthrightly require insurance companies to actually try to explain all this to a jury if they want to save money at the expense of an injured party.

This case is now before the Ohio Supreme Court, and it is expected to be decided as soon as this summer.

Across the country jury verdicts in favor of injured individuals are at an all time low. Judges, lawyers, and injured victims struggle to understand why. Is it the economy? Is it because we’re at war? Do jurors mistrust the jury system? Is it a backlash of the perception that juries give out too much money? While it is most certainly a combination of factors, there is one in particular that stands out to us.

When we try cases, we always ask the prospective jurors if they volunteer their time anywhere. It used to be most people said yes and then gave examples of their volunteer work. In today’s climate people claim they don’t have time to volunteer anymore; they feel stressed and over-scheduled and as a result no longer involve themselves in their community or places of worship. If jurors choose to isolate themselves from society they in turn have no empathy for injured fellow community members. People are so absorbed with their own problems that they lose the capacity to empathize with other peoples’ problems. It’s like trying to pour more water in a bucket that’s already full; it just rolls over the edge. If jurors refuse to understand and digest the problems of the injured person, they will not compensate the injured person. This is an insidious cycle that is detrimental to our local economy let alone an injustice to the injured individual.

We closely monitor jury results from all of the local trial courts. We discuss results with other lawyers and judges. We see verdicts where people’s uncontested medical bills aren’t paid in full, they’re not being fully compensated for their lost wages or receive nothing for injuries, pain and inconvenience caused by an injury. It becomes insidious because if a person is not compensated for his or her medical bills, then the medical bills don’t get paid. If doctors and/or hospitals go unpaid, they may not hire that additional nurse. The additional nurse who doesn’t get a job may not be able to pay her rent. If she doesn’t pay her rent, the landlord may not hire the local contractor to make repairs and so on. There is a domino effect in the local economy when members of our local economy aren’t paid. Where does the money come from to pay injured people? It comes from large insurance companies. Obviously, insurance companies pay claims with premium dollars that we all pay. However, insurance companies are experiencing all time record profits because the value of cases has dropped significantly and they have effectively eliminated coverage for claims they used to have to cover. (See corresponding chart.)

Your premium, however, has not diminished to reflect all-time low verdicts, or the diluted coverage your policy now contains. Chances are if your premium has changed, it has gone up. This has occurred at the same time the property and casualty insurance industry (including auto and homeowners insurance) is spending more and more money in the election process to get legislators elected who craft legislation to further erode the rights we have. In addition to people not being fully compensated in the judicial system, there are many people who are finding they have no legal recourse and so their injuries are going completely uncompensated. So while premiums are at a record high, coverage that is designed to protect you, your family and friends, is lower and more unattainable than it has ever been in modern times.

Extending Coverage for Young Adults after September 23, 2010

Under the new healthcare law, young adults are now able to remain on their parent’s plan until they turn 26 years old. (In the case of existing group health plans, this right does not apply if the young adult is offered insurance at work.)

2012

Newest Benefits of the Affordable Care Act

Benefits and protections taking effect this year:

More Options for Seniors who Choose to Live at Home
January 1, 2012: The Affordable Care Act creates “Independence at Home” demonstration programs to test the effectiveness of physician and nurse practitioner directed home-based primary care for those Medicare beneficiaries with multiple chronic conditions.

Strengthening Medicare and Preventing Waste, Fraud and Abuse
January 1, 2012: The Affordable Care Act strengthens prevention tactics against fraud and abuse with screening, oversight, and reporting and additional registration for providers and suppliers of services for these programs.

Tracking the Facts About Healthcare Disparities
March 23, 2012: In order to gain a better understanding of how factors such as race, ethnicity, gender, sex, primary language and environment affect our health, the Affordable Care Act enhances the requirements for reporting in these areas for Americans who receive their care through Medicare, Medicaid and the State Children’s Health Insurance Program.

No-Cost Preventive Services
The Affordable Care Act makes preventive care affordable and accessible for all Americans by requiring health plans to cover recommended preventive services without co-pays or premium costs. Before the law passed, too many Americans didn’t get the preventive health care they needed to stay healthy or avoid or delay the onset of disease. The preventive services included in this part of the law are regular pediatrician visits for children, cancer screening such as pap smears, mammograms and colonoscopy for adults, recommended immunizations, flu shots, healthy diet counseling and obesity screening.

August 2012: Additional preventive services specific to women, such as screening for gestational diabetes and contraception, will be covered by new health plans and will not require co-pays.

Easy-to-Read Coverage Summaries for Consumers
September 23, 2012: Insurance is complicated and often the language used by insurance companies is difficult to understand, incredibly detailed, and very lengthy. It is nearly impossible to use this information to compare plans. The Affordable Care Act requires private individual and group plans to provide a short, easy to read uniform summary of benefits and coverage to all health insurance applicants and enrollees. Having access to this information in layman’s language is key to understanding coverage and choosing the plan that is best.

Still To Come… 2013

Implementation of Services for Women:
Currently existing health insurance policies as of August 1, 2013 and in new health plans beginning in August 2012 will allow women who are not able to access reproductive health services through their employer to receive this coverage through their insurance company.

Improves preventive healthcare coverage by providing new funding to states that provide preventive services to Medicaid recipients at little or no cost.

Healthcare plans must start using electronic records to reduce administrative costs and streamline services.

Strengthens America’s primary care doctor network by requiring states to pay primary care physicians the same rate Medicare pays.

For more info visit www.seiu.org/a/the-healthcare-law-timeline.php

With the ongoing economic recession, we have continued to see a high number of clients who have lost their health insurance (if not their job altogether). Of course, it seems that’s right about the time that many folks wind up needing to go to the hospital.

All hospitals in Ohio are part of a program that writes off hospital bills if the patient falls below a certain income criteria. This program applies to all hospital bills incurred in Ohio and it does not matter whether they’re related to any sort of legal case. The program is available to anyone in Ohio for any hospital bill as long your income falls below the applicable threshold, which depends on the year you are applying to the program.

Typically, a family with two or three children and an annual income of approximately $20,000 may qualify. The program will look at the family income prior to the service for three months preceding the service and for 12 months preceding the service. Whichever of those two numbers is more favorable to you, will be used in the application to determine if you qualify. Please note that the program only applies to hospital bills; it does not apply to doctor bills, prescriptions, physical therapy bills, etc.

The hospitals can often be quite eager to help you complete the application. This is because all Ohio hospitals contribute a certain amount of money to the fund every year and their goal is to apply to get a share of the money back. If they don’t complete the appropriate number of HCAP applications, their contribution goes to another hospital.

Furthermore, if you have health insurance and you are struggling with paying a medical bill; starting to make noise about the HCAP application can sometimes motivate the players (whether it’s the hospital or your health insurance company) to finally process your bill.

If you have any questions about this program, please contact the patient billing office of the hospital and ask them about the HCAP program.

According to the Washington Post, a recent Centers for Disease Control & Prevention study found that fewer motorcyclists die in states that require helmets, and the costs to society are lower too. The researchers looked at the total number of fatal traffic crashes, focusing on the years 2008-2010. The statistics included 14,283 deaths of motorcyclists. The startling finding was that about five times as many no-helmet biker deaths occurred in states with less restrictive laws. In other words, states that require helmets save five times as many lives. Motorcycles account for about 3% of the registered vehicles on the road, but about 14% of the people who die in traffic accidents are motorcyclists. Wear your helmet!

Washington Post. CDC: Deaths and Costs to society are lower in States with Toughest Motorcycle Helmet Laws, June 14, 2012. For more information on this subject, go to  www.cdc.gov/mmwr

According to the American Academy of Orthopedic Surgeons, emergency rooms and surgeons treat hundreds of thousands of trampoline related injuries each year, with the associated medical costs exceeding 4 billion dollars. The most common injuries include broken bones resulting from falls on the mat as well as the frame, collisions with other jumpers, stunts gone wrong, and falls of the trampoline itself. Occasionally severe injuries occur including paralysis and even death. The majority of trampoline injuries occur in the home environment among children ages five to fourteen and when children are unsupervised by parents or other adults. More than half of the injuries occur on the mat of the trampoline and nearly two-thirds of the injuries involve two or more children using the trampoline at the same time. Given the number of injuries encountered by trampoline users, orthopedic surgeons recommend the following guidelines:

• Children should be supervised by competent adults at all times.
• Only one participant on the trampoline at a time.
• Somersaults or high-risk maneuvers should be avoided without proper supervision and without a spotter being present.
• The equipment should be on level ground.
• Children under six years should not be on trampolines.
• Safety net enclosures give a false sense of security, as most injuries occur on the trampoline surface.
• Make sure trampoline ladders are removed after use to prevent unsupervised access by young children.

For more information visit the American Academy of Orthopedic Surgeon’s website.

Judge Forchione is a living, breathing example of the qualities discussed on page 1. Judge Forchione sits on the common pleas bench in Stark County, and so he hears the same type of cases as would Pat Hart if elected. He recently issued a ruling that plainly and forcefully rejects the current status quo in which plaintiffs get whipsawed by insurance companies. In general terms what is at stake is the so-called collateral source rule, which used to serve to prevent the wrongdoer (for example, a drunk driver) from benefitting from the plaintiff’s efforts to be a responsible citizen and be insured. The most common example is a wrongdoer seeking to introduce a plaintiff’s health insurance so that he can reduce the verdict. Under recent Ohio Supreme Court rulings, the existence of health insurance reductions are now going to the jury in trials across Ohio, but Plaintiffs are still strictly forbidden from ever mentioning to the jury that the wrongdoer has insurance.

Judge Forchione, almost alone among his peers, in effect said “Enough”. The case is Jenkins, et al. vs. Disabato, Stark County Common Pleas Case No. 2011 CV 727. Essentially what the Allstates and State Farms of the world want to do is expose the jury to health insurance reductions (which ultimately will lower the verdict) but continue to cry foul if any evidence of their own existence is mentioned to the jury (as they fear this would raise the verdict). The judge’s opinion states:

Because the introduction of any difference between amounts charged and amounts billed [for medical treatment] will deprive the Plaintiffs of the protection of the collateral source rule, the only two fair options are that all insurance be discussed with the jury, or that no insurance be discussed with the jury. (Emphasis added.)

It would have been far easier for Judge Forchione to punt on this issue, as all too many trial courts have. Instead, he took the issue head on. The decision will likely be taken up on appeal at which point several very well funded special interests will begin to weigh in. The judge certainly understood that going in, but followed his convictions, called a spade a spade, and rendered his decision.

The tug of war between individual rights and corporate power dates to at least the beginning of the Industrial Revolution. In recent years we have seen wave after wave of “tort reform” insulating large corporations and insurance companies from accountability to those who are wronged.

Regardless of whether it’s 1812, 1912, or 2012, our Courts have always been the last, best means for regular citizens to be heard, and to have their claims be treated with the same regard as those of a celebrity or CEO. As Harper Lee put it in To Kill a Mockingbird:

“There is one institution that makes a pauper the equal of a Rockefeller… That institution, gentlemen, is a court. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.” Harper Lee, To Kill a Mockingbird. 218 (1960)

Given the current political trend toward requiring less accountability, it is more important than ever for judges to recognize that they are the last line of defense for the common citizen being denied a fair chance to seek justice.

Here in Summit County there is an important judicial race we want to bring to your attention. This race comes as a result of Judge Patricia Cosgrove retiring this year. She was a strong advocate for individuals, and will be sorely missed. A local attorney, Pat Hart, has stepped forward and is running for her seat. He’s running this March in a primary for the right to run for the seat in November. It will be a hard fought race. We know Pat Hart. He has been in private practice for many years protecting injured individuals and defrauded consumers. He would make an excellent addition to the bench. He has spent his years in private practice with the law firm of Scanlon & Gearinger and has been awarded some of the best verdicts on behalf of individuals in Summit County. He has all the qualities that we look for in a judicial candidate. He is not a career politician. He has never run for office before. He comes from a private practice where he understands he has to work to earn a living. He’s not afraid to work hard. He’s not afraid to stand up for individual rights. He won’t bend to public pressure and has no fear of making an unpopular decision if it’s the right decision. Not only do we urge you to vote for Pat, we would ask you to tell your friends and family to vote for Pat as well. We’d also appreciate it if you’re willing to put a yard sign for Pat in your yard. If so, please contact us and we will get you a Pat Hart yard sign. You may find out more about Pat Hart at his website: voteforHart.com.

The other races will be this fall and we will discuss them in upcoming newsletters.

Please vote March 6.

Matt Rizzi recently joined Willis & Willis as an associate. Matt grew up in Akron and is a 1999 graduate of Copley High School. He graduated from Kent State with a major in Justice Studies in 2003 and is a 2006 graduate of the West Virginia University School of Law. While studying law at West Virginia, Matt was named to the Moot Court team and was ultimately selected as one of six members of the school’s National Moot Court team. Matt has been engaged in litigation practice for the last five years. He has argued appellate cases in the Fifth, Ninth and Eleventh District Court of Appeals, obtaining successful appeals in the Ninth and Eleventh Districts. The Ohio Supreme Court has recently affirmed an appeal argued and won by Matt. Matt brings his energy and zeal for justice to the Willis & Willis team.

Last Year Senate Bill 5 seemed to touch a nerve in Ohio and the voting public became aware of public employee labor unions and formed an opinion. The public should become engaged in what our elected officials are doing in Columbus. SB5, however, was only one of hundreds of bills proposed and then passed into law recently. This particular law was repealed by the voting public last November. But what was all the other legislation about? Most people don’t pay attention.

We’re now entering another election cycle and we’re amazed at how much money is spent in order to get someone elected to a job that doesn’t pay anywhere near the amount of money spent to get elected. Who is paying and why are they paying large sums of money to get specific candidates elected?

The simple answer is money comes from campaign donors both large and small. Most donors don’t pay money without expecting something in return. Large campaign donors expect their candidate to protect and advance their own special interests. The problem is those interests often conflict with the needs of the majority or are in fact a detriment to society. The candidates are stuck in a quandary. If they don’t support their big dollar special interest donors, they cannot expect donations for the next election cycle.

We believe that campaign finance has gotten out of control; it is an insidious disease that is bringing down the American political system. At the end of the day we, the voting public, are to blame. As voters we have rewarded expensive, glitzy advertising and catchy sound bites. We need to stop; we need to educate ourselves about the people we’re electing, what they truly stand for and do they have the independence and integrity to say NO to special interests. They accept donations from the wealthy and powerful and we should pay attention.

Laws that protect individuals are being eroded in this state. Ohio has gone from a state with some of the strongest legal protection for insured individuals in the country to one of the weakest. The losers in this equation are individuals, not businesses. For example, Ohio’s uninsured motorist statute was taken off the books by the legislature under pressure from the insurance industry. (Some of the biggest donors) This law was written decades ago to protect law-abiding motorists from uninsured drivers. Why did the legislature take the law off the books? Did everyone who drives suddenly buy insurance? No. There are many uninsured drivers currently on the streets. (One survey says one in five drivers is uninsured.) The real reason is the insurance industry did not want to have to abide by the requirement of the uninsured motorist law which required insurers to cover their insured if they were injured by an uninsured driver, period. Insurers will tell you they still provide uninsured motorist coverage, but effectively while most insurers (previously all by law) still provide some form of uninsured motorist coverage in their policies; it is diminished coverage with numerous exceptions that leaves many un-covered.

Currently, Ohio’s Consumer Sales Practice Act is under attack and legislation is pending (House Bill 275) to reverse current consumer rights and protections. Are laws written about a half a century ago to protect consumers from unscrupulous business practices no longer needed? Are consumers clamoring for this reversal of law? Absolutely not! Auto manufacturers, dealers, homebuilders and contractors and the like are. These laws and others like them are the legal way to obtain justice for citizens who’ve been wronged or injured. If citizens vote for legislators who take away our rights, we will be hard pressed to protect ourselves and our property. Every day the attorneys here at Willis & Willis talk to people who are suddenly faced with catastrophic injuries and/or serious financial problems, through no fault of their own, caused by a business or an individuals conduct. Many of these victims are discovering that their ability to protect themselves or recover from their losses have been eliminated or strictly limited. Please consider in this upcoming legislative election cycle who will responsibly represent your interests and protect your rights as an individual.

Remember citizens do not have to give up fundamental rights to encourage business in this state. Do not be fooled into believing that you do. Many of the laws that are currently under attack have been on the books for decades and existed through some of the strongest economic growth this country has experienced.