1

MEMORANDUM

To: Patty Hopper, Legal Research

From: James A. Alp, UDSL Student Extern

Date: September 24, 2012

Subject: Judgment in █████████████████████ v. █████,

No. 2012-CVF-████

QUESTION PRESENTED

Under case law governing an action by a medical service provider to collect on a

patient’s account, is a plaintiff entitled to judgment in its favor when its sole

witness, plaintiff’s billing specialist, introduces an account statement into

evidence, but admits on cross-examination that she has no personal knowledge of

the medical necessity of plaintiff’s services or the reasonableness of plaintiff’s

fees, whereas the defendant produces no exhibits and calls no witnesses in support

of his defense that the plaintiff’s fees are unreasonable?

FACTUAL AND PROCEDURAL HISTORY

This is an action on an account for professional services rendered. Defendant ██████

██████, after suffering an injury while employed by ███████████, received treatment

from Plaintiff ██████████████████████, which services and treats worker’s

compensation patients. Pl.’s Post-Trial Br. 1. The Ohio Bureau of Worker’s Compensation

(BWC) was billed for Defendant’s treatment, but the claims were denied. Id. Plaintiff then

attempted to collect payment personally from the Defendant, who never paid on the account.

Plaintiff filed its Complaint on ███████, 2012. The Complaint alleged one cause of

action, specifically, that Defendant owed Plaintiff the sum of $███████, upon an account.

Compl. ¶ 1. In accordance with Civ.R. 10(D)(1), Plaintiff attached to its Complaint a copy of its

2

Claim Summary Invoice showing Defendant’s name, a list of services provided with dates of

service and Plaintiff’s “adjusted rates,” and the total balance of $███████ due and owing

Plaintiff.

On █████████, 2012, Defendant filed his Answer, including a general denial and

asserting, among other defenses, that “the charges incurred herein for medical services rendered

on behalf of Defendant are unconscionable and unreasonable.” Answer ¶ 1, 14.

A trial was held in this Court on █████, 2012. Plaintiff’s sole witness, Ms. J█ ████,

who has been employed by Plaintiff as a billing specialist for three years, testified as to the

Claim Summary Invoice at issue. Pl.’s Post-Trial Br. 2. She testified that she was familiar with

the Defendant and had personal knowledge of his account, and that the charges on the account

were for services rendered to the Defendant. Id. She testified that the “adjusted rates” billed by

Plaintiff were determined by its fee reduction agreement with the BWC, so that the amount

Plaintiff billed Defendant as a “self-pay” was no more than the rates allowed by the BWC. Id. at

3. Ms. ████ testified that she spoke with the Defendant and that he either “accepted a payment

arrangement on the account” or “offered to make a $10.00 monthly payment.” Compare Pl.’s

Post-Trial Br. 3 with Def.’s Post-Trial Br. 3. At any rate, her testimony was that during their

conversation the Defendant “did not dispute the account or the services with her.” Pl.’s Post-

Trial Br. 3. Plaintiff introduced no other exhibits, such as medical records which might

substantiate the medical care that was provided to Defendant, or the effects of such treatment.

Def.’s Post-Trial Br. 2. No treating physician or physical therapist testified as to the

reasonableness or necessity of the claimed charges. Id.

The Defendant appeared at trial but did not testify, offered no exhibits, and called no

witnesses. Defendant’s counsel did cross-examine Ms. ████, who admitted that she was not

3

aware of any written agreement for services or charges signed by Defendant. Def.’s Post-Trial

Br. 2. Ms. ████ testified that the Defendant “may have executed a document authorizing

service and agreeing to pay for the services rendered,” but Plaintiff failed to produce any such

document at trial. Pl.’s Post-Trial Br. 2. Ms. ████ also admitted that she was not present when

any of the services were provided to the Defendant, nor was she aware whether or not the

treatments actually benefited his medical condition. Def.’s Post-Trial Br. 2.

At the conclusion of the trial, the Court requested post-trial briefs from both parties.

Defendant’s post-trial brief maintains that the Plaintiff failed to prove by a preponderance of the

evidence that the medical services provided to Defendant were customary, reasonable and

necessary. Plaintiff’s post-trial brief maintains that it met its burden of a preponderance of the

evidence and that it is entitled to judgment against the Defendant for the amount prayed for in its

complaint, $███████. Plaintiff argues that it met its burden by introducing its medical bills,

and that the Defendant failed to meet his burden by failing to introduce evidence that Plaintiff’s

charges were unreasonable.

ANALYSIS

I. Even though Plaintiff presented no evidence that the amount it billed was

reasonable, the conclusion that it has met its burden of proof cannot be avoided.

A. A Physician is entitled to collect the reasonable value of services rendered, but has

the burden of establishing reasonable value.

Plaintiff herein has brought an action on an account, which is an action for a breach of

contract.1 Oxford Sys. Integration, Inc. v. Smith-Broughan Mechanical Servs., 159 Ohio App.3d

1 Defendant emphasizes in his Post-Trial Brief that Plaintiff did not plead quantum meruit in its Complaint. Def.’s

Post-Trial Br. 1. In fact, quantum meruit (literally, “as much as he deserves,” Lebanon Country Manor Nursing

Home v. Stiver, No. 88-04-030, 1989 WL 33706, *3 [12th Dist. Apr. 10, 1989]), is simply the name for the measure

of damages afforded in an action for quasi-contract. Dailey v. Craigmyle & Son Farms, L.L.C., 177 Ohio App.3d

439, 2008-Ohio-4034, ¶ 20 (4th Dist.). See also Myers v. Good, 4th Dist. No. 06CA2939, 2007-Ohio-5361, ¶ 12

(quantum meruit described as “proper remedy” for unjust enrichment). A party is not required to plead its legal

4

533, 2005-Ohio-210, 824 N.E.2d 586, ¶ 16 (2d Dist.). The physician-patient relationship is

characterized as a contract, whether express or implied. Associated Physicians of MCO, Inc. v.

Baker, 6th Dist. No. L-89-209, 1990 WL 106432, *3 (July 27, 1990). “[W]here services are

rendered by one person for another, and are knowingly and voluntarily accepted, without more,

the law presumes that such services were given and received in the expectation of being paid for

and implies a promise to pay their reasonable worth.” 66 American Jurisprudence 2d, Restitution

and Implied Contracts, Section 40, at 695 (2011). Consequently, a physician or surgeon is

entitled to recover from a patient, in the absence of an express agreement as to compensation, the

reasonable worth of his or her services. Miami Valley Hosp. v. Middleton, 2d Dist. No. 24240,

2011-Ohio-5069, ¶ 20; Associated Physicians at *3; Neurosurgical Assoc., Inc. v. Borowsky, 8th

Dist. No. 41197, 1980 WL 354911, *3 (Sept. 18, 1980); Sabroske v. Williamson, 79 Ohio Law

Abs. 257, 257, 155 N.E.2d 286 (M.C.1958); Barman v. Feid, 27 Ohio N.P. (N.S.) 409, 413

(C.P.1929).

In any civil action, a fundamental principle operates: He who affirms must prove. Hanna

v. Groom, 10th Dist. No. 07AP-502, 2008-Ohio-765, ¶ 39. Thus, in an action to collect on a

patient’s account, where there is no evidence of an agreement as to the fee for the services

rendered, the burden is on the physician-plaintiff to prove their reasonable worth. Associated

Physicians at *3; see also 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Section 95, at 258

(2012) (“plaintiff who seeks remuneration for the reasonable value of services rendered on the

theory of an implied contract * * * has the burden of proving the reasonableness of the charges

made for his or her services”). The reasonable value of the services must be proven by

competent, credible evidence presented at trial. Hailey v. MedCorp, Inc., 6th Dist. No. L-05-

theory of recovery. Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-4945, ¶ 12 (8th Dist.). Plaintiff’s

Complaint set forth the facts that establish its claim for relief; hence there is no infirmity in it.

5

1238, 2006-Ohio-4804, ¶ 21, citing Gioffre v. Simakis, 72 Ohio App.3d 424, 428, 594 N.E.2d

1013 (10th Dist.1991). Plaintiff’s evidence must establish the reasonable value of the services at

the time and place they were rendered, by the person who rendered them. Middleton at ¶ 20;

Neurosurgical Assoc. at *3; see also Bagley v. Bates, Wright 705, 706 (Ohio 1834) (reasonable

value defined as “that compensation usually paid for like services at the time and place when and

where these were rendered”). Reasonable value, therefore, “must be determined in great measure

by proof of what such services rendered by men of skill in their profession command at the place

where they are rendered; that is, what sum in accordance with the usage and practice of those

who render such service and those for whom they are rendered is asked and paid therefor.” Saffin

v. Thomas, 8 Ohio C.C. 253, 254-255, 4 Ohio Cir. Dec. 438 (Hamilton App.1894).

B. In the Second District, a medical service provider is entitled to a presumption that

its customary charge is reasonable.

1. Allocation of the burden of proof in this case is problematic because of the

Second District’s ruling in Miami Valley Hosp. v. Middleton.

If the foregoing were a complete statement of the applicable law, the allocation of the

burden of proof in this case would be uncomplicated. Instead it is problematic. Despite the fact

that, pursuant to longstanding precedent, the burden of proving the reasonableness of its charges

would rest upon the Plaintiff, this Court’s determination of the matter is foreclosed by Second

District authority substantially relieving the Plaintiff of that burden. In Miami Valley Hosp. v.

Middleton, 2d Dist. No. 24240, 2011-Ohio-5069, the Second District Court of Appeals ruled that

in a collection action a hospital is “entitled to the presumption” that the reasonable value of its

services is its customary charge. Middleton at ¶ 21.

a. The case law and statute cited as authority in Middleton apply to personal

injury cases.

6

The authorities upon which the Middleton court based its conclusion are: (1) three cases

interpreting and applying a reasonableness presumption that operates in favor of plaintiffs

seeking damages in personal-injury actions; (2) obiter dictum from a fourth case, a collection

case which clearly misinterpreted case law applying the same presumption; and (3) the statute

codifying the aforementioned evidentiary presumption in favor of personal injury and wrongful

death plaintiffs. Middleton relies on these authorities without setting forth any justification for its

ruling extending the prima facie evidence rule for personal injury and wrongful death cases to an

action to collect on an account.

Three of the four cases relied upon by the Middleton court were personal injury cases:

Wood v. Elzoheary, 11 Ohio App.3d 27, 462 N.E.2d 1243 (1983); Wagner v. McDaniels, 9 Ohio

St. 3d 184, 459 N.E.2d 561 (1984); Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857

N.E.2d 1195. In personal injury cases it is settled law that a plaintiff is entitled to recover

necessary and reasonable medical expenses incurred for treatment of injuries caused by the

tortfeasor. See, e.g., Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434, ¶

5.

In Elzoheary, a husband and wife injured in an auto accident sought review of the trial

court’s decision to exclude their medical bills from evidence. Elzoheary at 27. The Elzoheary

court’s analysis begins with DeTunno v. Shull, 166 Ohio St. 365, 143 N.E.2d 301 (1957), which

it found not to be controlling. Id. at 28. In DeTunno, also an automobile-collision case, the

Supreme Court of Ohio held that “[o]rdinarily a jury may not consider as items of damage the

amounts of indebtedness claimed to have been incurred for hospital and medical services, in the

absence of any testimony as to the necessity and reasonable value of such services.” DeTunno at

syllabus. However, in an influential concurrence, Justice Bell wrote:

7

[I]t appears to me more sensible and enlightened to permit proof of the amount of

the bill rendered and a description of the services performed to be prima facie

evidence of the reasonableness of the charge rather than to require the usually

empty ceremonial of having a doctor testify that the charge he made for a

particular service is a reasonable or customary one.

DeTunno at 377 (Bell, J., concurring). Eventually, the General Assembly enacted a statute

codifying the principle Justice Bell had advocated. The statute provides:

In an action for damages arising from personal injury or wrongful death, a written

bill or statement, or any relevant portion thereof, itemized by date, type of service

rendered, and charge, shall, if otherwise admissible, be prima-facie evidence of

the reasonableness of any charges and fees stated therein for medication and

prosthetic devices furnished, or medical, dental, hospital, and funeral services

rendered by the person, firm, or corporation issuing such bill or statement,

provided, that such bill or statement shall be prima-facie evidence of

reasonableness only if the party offering it delivers a copy of it, or the relevant

portion thereof, to the attorney of record for each adverse party not less than five

days before trial.

R.C. 2317.421. Accordingly, in Elzoheary the Eighth District recognized that the majority

holding in DeTunno had been abrogated by the act of the General Assembly, which “resolved the

dispute whether medical bills are themselves some evidence of their own reasonableness. R.C.

2317.421 causes them to be prima facie evidence of their reasonableness, while affording

opposing counsel an opportunity to challenge their reasonableness with contrary evidence.”

Elzoheary at 28. Thus the court simply applied the statute, recognizing a rebuttable presumption

of reasonableness for a personal injury plaintiff’s medical bills. Id. As for the necessity element,

Elzoheary holds that expert testimony may not be necessary to connect the injury with the

medical care described in the bill when the connection is within common knowledge. Id. at 29.

Middleton’s next cited authority is Wagner v. McDaniels, 9 Ohio St. 3d 184, 459 N.E.2d

561. In Wagner, the plaintiff sought reimbursement from a convicted sexual offender of

expenses incurred for treatment of her victim-daughter’s personal psychological injury. Wagner

at 184, fn. 1. On the reasonableness of the plaintiff’s medical expenses, the Wagner court ruled:

8

“[P]roof of the amount paid or the amount of the bill rendered and of the nature of the services

performed constitutes prima facie evidence of the reasonableness of the charges for medical and

hospital services.” Wagner at 186.2 While not citing R.C. 2317.421, the court followed the

reasoning in Justice Bell’s DeTunno concurrence to arrive at the same conclusion that the statute

likewise would have yielded. Id. at 185-186.

The third and most recent personal injury case cited in Middleton is Robinson v. Bates,

112 Ohio St.3d 17, 2006-Ohio-6362, wherein the Ohio Supreme Court summed up the personal

injury rule as follows: “Properly submitted medical bills are rebuttable evidence of

reasonableness. Once medical bills are admitted, a defendant may then present evidence to

challenge their reasonableness.” Robinson at ¶ 9, citing Elzoheary at 28. Given the verbal

parsimony with which these rules are stated, it must not be overlooked that Robinson, like

Elzoheary and Wagner, announces a rule that is applicable to personal injury cases, not

collection cases. See Robinson at ¶ 7-9. Robinson’s authorities were R.C. 2317.421, and cases

applying it. Id. at ¶ 9, citing Wood v. Elzoheary, 11 Ohio App.3d 27, 28, 462 N.E.2d 1243 (8th

2 This statement, which the court explicitly identified as its holding, differs from the language in the syllabus of the

court, which reads: “Proof of the amount paid or the amount of the bill rendered and of the nature of the services

performed constitutes prima facie evidence of the necessity and reasonableness of the charges for medical and

hospital services.” Wagner at paragraph one of the syllabus (emphasis added). Many cases following Wagner cite its

syllabus rather than its text; in the past this was the correct approach. Numerous reported cases have held it to be

“axiomatic that the syllabus of an opinion issued by the Supreme Court of Ohio states the law of the case.” State ex

rel. Heck v. Kessler, 72 Ohio St. 3d 98, 102-103, 647 N.E.2d 792 (1995). Those rulings, however, were grounded

upon former Rule 1(B) of the Supreme Court Rules for the Reporting of Opinions, which stated that “the syllabus of

a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the

facts of the specific case before the Court for adjudication.” Id. at 103. Subsequently, the rule was amended to set

forth, even more explicitly, that “[i]f there is disharmony between the syllabus of an opinion and its text or

footnotes, the syllabus controls.” S.Ct.R.Rep.Op. 1(B)(2), effective May 1, 2002. Today, however, the successor to

this rule contains no such language, stating simply: “The law stated in an opinion of the Supreme Court shall be

contained in its text, including its syllabus, if one is provided, and footnotes.” S.Ct.R.Rep.Op. 2.2, effective July 1,

2012. It is not error, therefore, for a court to follow the text of Wagner’s opinion rather than its syllabus. Doing so

also respects the logic of the Wagner court’s reasoning; it cannot be said that expert testimony to establish the

medical necessity element is made into an “empty ceremonial” by “contemporary medical billing practice”; this was

the reason for the court’s holding with respect to reasonableness. Wagner at 186.

9

Dist.1983), and Stiver v. Miami Valley Cable Council, 105 Ohio App.3d 313, 320, 663 N.E.2d

1310 (1995).

None of these cases actually supports the propositions of law for which they are cited as

authority in Middleton. Middleton cites Elzoheary as partial support for its statement that “ ‘[a]

medical provider may be entitled to a presumption that its customary fees are reasonable.’ ”

Miami Valley Hosp. v. Middleton, 2d Dist. No. 24240, 2011-Ohio-5069, ¶ 21, quoting St. Vincent

Med. Ctr. v. Sader, 100 Ohio App.3d 379, 383, 654 N.E.2d 144 (6th Dist.1995). Elzoheary did

not so hold, and Sader was wrong to suggest that it did, as explained below. And the rules

announced in Wagner and Robinson apply to personal-injury actions, as Middleton

acknowledges. Id. In the absence of any explanation justifying its decision to extend the prima

facie evidence rule for personal injury and wrongful death cases to an action to collect on an

account, these cases carry no persuasive authority.

b. Middleton provides no justification for extending the personal injury

damages rule to collection cases.

i. St. Vincent Med. Ctr. v. Sader does not support the proposition that a

medical service provider’s fee should be presumed reasonable in a

collection case.

The Middleton court explicitly recognized elsewhere in its opinion that it is improper to

apply personal injury case law to a breach of contract case. Id. at ¶ 27. Middleton declined to

apply the essential holding in Robinson, interpreting the collateral-source rule, because Robinson

is a personal injury case, and the Robinson rule is irrelevant outside that context. Id. “Robinson

does not say, and we express no opinion, about whether, in a collection case like the present one,

a defendant may present evidence of the amount that a hospital charges other third-party payers

for hospital services.” Id. The same logic ought to have barred the Middleton court’s reliance on

personal injury cases to fundamentally alter the burden of proof in a hospital collection case.

10

Under long-established law as set forth above, it is the plaintiff in a collection case, not the

defendant, who would be expected to present evidence of the type at issue in Robinson, because

the plaintiff carries the burden of proving all the elements of its case. Middleton goes astray from

that rule, and it does so largely in reliance on St. Vincent Med. Ctr. v. Sader, 100 Ohio App.3d

379, 654 N.E.2d 144.

Sader was a suit by a hospital to recover the unpaid portion of its charges from a patient.

Sader at 381. The Sader court was primarily concerned with the burdens on movants and

nonmovants in summary judgment proceedings. Id. at 382-385. The court found that the

hospital’s affidavit “fail[ed] to rebut,” id. at 383, the affidavit from the patient’s insurer which

concluded that the hospital’s fees were “excessive and unreasonable,” id. at 382. Because the

issue under consideration was the insurer’s motion for summary judgment, this would more

appropriately be described as an instance of a nonmoving party (the hospital) that exhibited a

“complete failure of proof concerning an essential element of [its] case,” 85 Ohio Jurisprudence

3d, Summary Judgment and Judgment on the Pleadings, Section 20, at 375; not a “failure to

rebut.” Accurately stated, the operative rule of law should have been that in an action on an

account, a medical service provider has the burden of proving its fee is reasonable. Instead the

Sader court cites Wood v. Elzoheary, where it was held that R.C. 2317.421 caused medical bills

to be prima facie evidence of their own reasonableness. Id. at 383; compare Elzoheary at

paragraph one of the syllabus. Elzoheary, of course, involves an action for damages arising from

personal injury, and the statute it relied upon is inapplicable to a case involving an action on an

account.

Sader’s summary of Elzoheary’s holding is that “[a] medical provider may be entitled to

a presumption that its customary fees are reasonable, but such a presumption is rebuttable.”

11

Sader at 383. In fact, the text of R.C. 2317.421 is not phrased in terms of any party being

“entitled” to its presumption. To be sure, one possible interpretation of the statute is that it is the

medical bill itself that is meant to “benefit” from the presumption. See, e.g., Stiver v. Miami

Valley Cable Council, 105 Ohio App.3d at 320, 663 N.E.2d 1310. However, the statute is not

written so broadly that its “benefit” would apply in any cause of action in which a medical bill

might be admissible; the statute’s reach is limited to two specific causes of action, personal

injury and wrongful death. R.C. 2317.421. Clearly the only person who can properly be

described as “entitled” to the statute’s presumption, under the plain meaning of the statute, is the

personal injury or wrongful death plaintiff for whom the burden of presenting expert testimony

to establish reasonableness is lifted, so long as the bills are timely made available to opposing

counsel. Id.

Moreover, Sader’s oddly-worded paraphrase of Elzoheary does not sustain its being

relied upon as a controlling authority on this point. “A medical provider,” Sader says, “may be

entitled to a presumption that its customary fees are reasonable, but such a presumption is

rebuttable.” Sader, 100 Ohio App.3d at 383, 654 N.E.2d 144 (emphasis added). Stating the rule

in an uncertain voice rather than an authoritative one, as would be appropriate for a

pronouncement of a rule of law, lends weight to the supposition that this statement is mere

dictum. Further along, though, Sader’s tentative assertion appears to harden into a firm

conclusion: “The hospital is entitled to the presumption that the reasonable value of the services

rendered is its customary charge for such issue.” Sader at 384 (emphasis added). But restating

the point in this manner merely emphasizes the court’s conclusion that, even so, the purported

presumption in its favor had been overcome by the conflicting evidence presented by the

patient’s insurance provider. Neither of these two sentences comes across as an authoritative

12

statement of the law, and there is no case authority that supports the particular expression of law

that Sader derived from Elzoheary. If there is one proposition of law that Sader plainly does not

establish, it is the notion that in a collection action “ ‘a hospital is entitled to the presumption that

the reasonable value of the services rendered is its customary charge,’ ” the rule embraced in

Middleton, 2011-Ohio-5069, at ¶ 21.

ii. A court should not apply tort law in deciding an action for breach of

contract.

In Middleton, the patient-defendant, who was treated for injuries from a car accident, also

pleaded a cause of action in tort against an allegedly negligent driver; his third-party complaint

against the alleged tortfeasor was dismissed on grounds of jurisdiction. Id. at ¶ 4. The two causes

of action would have had one issue in common: the reasonable value of the services Middleton

received from the hospital. Id. at ¶ 12. By itself, though, this fact does not justify extending a rule

of evidence applicable in the dismissed personal injury case to the hospital’s cause of action on

its account. The substantive law applicable to one cause of action does not migrate to other

causes of action merely because there are facts in common. To hold otherwise would be to

decide a breach of contract case by applying the substantive law of torts.

“Clearly, any complaint alleging a contract and its breach, seeking recovery for damages

for such breach, states an action on contract and not in tort.” 1 Ohio Jurisprudence 3d, Actions,

Section 15, at 388 (2008). As such, the familiar admonitions against improper mixing of the two

bodies of substantive law apply. See, e.g., DeFiore v. Peffers, 70 Ohio Law Abs. 588, 590-591,

124 N.E.2d 733 (8th Dist.1955) (charge to jury in breach of contract case, improperly mixing tort

theory with that of contract, and thereby “fail[ing] ‘to charge on the law controlling such

issues,’” would likely be substantial error but for failure of party to object in trial court). There is

no question that in a physician’s action to collect on an unpaid account, a finding that the amount

13

billed was unreasonable, and judgment accordingly, awarding the physician a lesser amount,

would eliminate any possibility that the patient could afterward use the amount originally billed

as the basis for a damage award against the person who caused the injury. But can the converse

be argued with equal persuasive force? That is, because a patient with unpaid medical bills

would, if she brought a tort claim against a third party, receive the benefit of the R.C. 2317.421

evidentiary presumption that the amounts billed for treatments are reasonable, should the courts

extend to a medical service provider the benefit of the same presumption in an action on an

account, regardless of whether a claim against a third party tortfeasor exists? Such a result would

stretch the rule beyond rational justification.

iii. Middleton’s use of R.C. 2317.421 violates basic rules of statutory

construction.

The certainty that Middleton was wrongly decided is bolstered by the fact that it

controverts basic principles of statutory construction. The paramount concern in the

interpretation of a statute is legislative intent. In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-

Ohio-2267, 950 N.E.2d 505, ¶ 12; State v. Pawelski, 178 Ohio App.3d 426, 2008-Ohio-5180,

898 N.E.2d 85, ¶ 21 (2d Dist.). Policy decisions are for the legislature, and judicial interpretation

of a statute must be marked by deference to such legislative policy decisions. Symmes Twp. Bd.

of Trustees v. Smyth, 87 Ohio St.3d 549, 558, 721 N.E.2d 1057 (2000). A court is constrained to

apply the law as it is written, not as its judges might have wished it was written. State v.

McPherson, 142 Ohio App.3d 274, 281, 755 N.E.2d 426 (4th Dist.2001). In construing a statute

a court must not delete words used or insert words not used. State v. Bess, 126 Ohio St.3d 350,

2010-Ohio-3292, 933 N.E.2d 1076, ¶ 18. Often, the words chosen by the legislature “serve as

limitations of the extent of the statute’s applications.” State v. Cravens, 42 Ohio App.3d 69, 72,

536 N.E.2d 686 (1st Dist.1988). When this is the case, it is unquestionably improper for a court

14

to interpret a statute so as to give the statute an operation which the legislature did not intend.

Cincinnati v. King, 84 Ohio Law Abs. 84, 92, 168 N.E.2d 633 (M.C. 1960), quoting 37 O. Jur.

Statutes § 269. “There is no authority under any rule of statutory construction to add to, enlarge,

supply, expand, extend or improve the provisions of the statute to meet a situation not provided

for.” State ex rel. Foster v. Evatt, 144 Ohio St. 65, 56 N.E.2d 265 (1944), paragraph eight of the

syllabus. To do so would be judicial legislation. Iddings v. Jefferson Cnty. Bd. of Ed., 155 Ohio

St. 287, 290, 98 N.E.2d 827 (1951).

Middleton’s use of R.C. 2317.421 to support its decision demonstrated a lack of judicial

deference to the policy choice of the General Assembly. In enacting R.C. 2317.421, the General

Assembly unmistakably gave effect to a clear policy decision: granting personal injury and

wrongful death plaintiffs relief from the burden of presenting expert testimony to establish the

reasonableness of the amount of damages sought for medical expenses incurred. The language of

the statute is explicit in identifying those two categories of litigants and no others for the benefit

of its advantageous evidentiary rule. R.C. 2317.421. This legislative policy is unquestionably

entitled to judicial deference. The statute’s introductory clause, declaring that the rule set forth

applies “[i]n an action for damages arising from personal injury or wrongful death,”

unambiguously serves as a limit on the extent of the statute’s applications, so that there is no

textual support for applying the rule to any other cause of action. Id.

The Second District’s decision in Middleton grants to hospitals the benefit of an

evidentiary presumption in collection actions that the General Assembly meant to give only to

plaintiffs in actions for damages arising from personal injury or wrongful death. By judicial

construction, the Middleton court added actions to collect on an account to the classes of actions

to which the evidentiary rule applies; or perhaps the court simply ignored the introductory clause

15

limiting the scope of the rule. Either way, the court’s decision had the effect of adding to or

subtracting from the words in the statute. In Middleton, the Second District legislated from the

bench, and this transgression renders its ruling judicially unsound.

2. Reversal of Middleton, while crucial, must be decided by the Second District.

a. Reversing Middleton would not contravene stare decisis.

Respect for precedent need not prevent the Court of Appeals reversing Middleton. While

stare decisis “ ‘is of fundamental importance to the rule of law,’ ” Westfield Ins. Co. v. Galatis,

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 44, quoting Wampler v. Higgins, 93

Ohio St.3d 111, 120, 752 N.E.2d 962 (2001), it is “not a mechanical formula of adherence to the

latest decision,” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940).

“[A] court of appeals, or any panel of judges sitting therein, is not unalterably bound to follow

the precedent of a rule previously announced or followed by such court.” State v. George, 50

Ohio App.2d 297, 309-310, 362 N.E.2d 1223 (10th Dist.1975). Indeed, the court has a “duty to

examine its former decisions” and, when necessary, to “discard its former errors.” Galatis at ¶

43. Needless to say, stare decisis may not be departed from without “special justification.”

Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).

Stare decisis is particularly forceful in matters of statutory construction, for the

legislature is free to alter what the court has done, by the simple expedient of amending its

statute. Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L.Ed.2d

132 (1989). In this case, however, the language of the statute could hardly be more clear; and it

is difficult to imagine how the General Assembly could amend R.C. 2317.421 to make its

inapplicability to collection actions like Middleton any more clear, except by addition of surplus

language. The existing text of the statute is more than sufficient to establish that Middleton’s

interpretation is unsound.

16

It has been said that a court “ought to stay the course when it has only recently chosen

one of two legitimate alternatives.” Harsco Corp. v. Tracy, 85 Ohio St.3d 382, 387, 708 N.E.2d

1000 (1999). Here, however, the Middleton court was faced with only one legitimate alternative:

not to apply the evidentiary rule of R.C. 2317.421 to a collection case where it had no validity.

The Second District, therefore, need not be particularly concerned with the admonition to “stay

the course” if it is faced with the question whether to overturn Middleton. Indeed, the fact that

Middleton was decided just a year ago weighs in favor of reversing it without delay so as to

minimize the potential mischief it may cause in the trial courts.

The fact that Middleton was wrongly decided should be sufficient by itself to justify

reversal. Ohio has adopted a 3-part test for deciding when precedent may be reversed. A court

may overrule its past decision on a question of law only when: “(1) the decision was wrongly

decided at that time, or changes in circumstances no longer justify continued adherence to the

decision, (2) the decision defies practical workability, and (3) abandoning the precedent would

not create an undue hardship for those who have relied upon it.” Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 48. Under Galatis, it is not enough merely to show that a

prior case was wrongly decided; all three requirements must be satisfied. State ex rel. Grimes

Aerospace Co., Inc. v. Indus. Comm., 112 Ohio St.3d 85, 2006-Ohio-6504, 858 N.E.2d 351, ¶ 6.

However, the Galatis test has been criticized for creating an obstacle to the overruling of

clearly erroneous precedents so long as the earlier decision, though plainly incorrect, is either

“workab[le]” in practice or is difficult to abandon without creating “undue hardship.” See, e.g.,

Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d

714, ¶ 19 (Pfeifer, J., dissenting) (Galatis test a “talismanic and legalistic straitjacket”); Groch v.

Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 222 (Lanzinger, J.,

17

concurring in part) (Galatis “should yield to a broader system of analysis”); State ex rel. Shelly

Materials, Inc. v. Clark Cty. Bd. of Comm’rs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d

59, ¶59 (Pfeifer, dissenting) (“practical workability” called “magical” element).

And in fact the Galatis “straitjacket” has been loosened in cases where a party’s reliance

interest is unaffected by reversal of the challenged precedent. While “[c]onsiderations in favor of

stare decisis are at their acme in cases involving property and contract rights, where reliance

interests are involved,” Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115 L.Ed.2d

720 (1991), the opposite is true where the precedent the court is urged to abandon established a

procedural or evidentiary rule, since such a rule “does not serve as a guide to lawful behavior,”

United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and

therefore cannot have altered the primary conduct of any party. State v. Silverman, 121 Ohio

St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, ¶ 32-33. Accordingly, the Supreme Court of Ohio

has ruled that Galatis is inapplicable to a matter involving an evidentiary rule. Silverman at ¶ 33.

Because Middleton established an evidentiary rule, the impediment of having to satisfy

the three-part Galatis test does not stand in the way of the Second District overruling Middleton.

If it were to do so, the controlling law would simply be restored to the rule set forth in Gioffre,

72 Ohio App.3d 424, 594 N.E.2d 1013, Associated Physicians, 6th Dist. No. L-89-209, 1990 WL

106432, and Hailey, 6th Dist. No. L-05-1238, 2006-Ohio-4804: In an action by a physician,

surgeon, or hospital to collect on an account, where there is no evidence of an agreement as to

the provider’s fee, the burden would be on the plaintiff to present evidence that its fee is

reasonable.

b. A ruling of the Second District, even if it appears unsound, must be followed

by this Court.

18

Despite all of the foregoing, as this case comes before the Dayton Municipal Court it

must be decided in light of the tenets of law announced in Middleton. “[A] decision of a court

which has authority to review the decisions of another court is binding upon the latter court. The

decision of an appellate court is evidence of law and in the inferior courts is in the nature of

conclusive evidence.” In re Schott, 16 Ohio App.2d 72, 75, 241 N.E.2d 773 (1st Dist.1968). This

is true without regard to what the view of the lower court may be as to the correctness of the

higher court’s decision. Battig v. Forshey, 7 Ohio App.3d 72, 74, 454 N.E.2d 168 (4th

Dist.1982). On the other hand, there can be nothing wrong with a lower court adding its voice to

the development of the law by openly stating its reasons for concluding that a higher court’s

decision was mistaken. See Gunckel v. King, 267 N.E.2d 619, 626 (M.C.1971) (Dayton

Municipal Court judge not precluded by “deference to ‘rank’ ” from indicating his feeling that a

controlling Second District decision was bad law).

The trial court’s obligation, nonetheless, is to follow the decisions of reviewing courts on

questions of law. Toler v. Toler, 2d Dist. No. 10-CA-69, 2011-Ohio-3510, ¶ 13. Unless and until

the Second District revisits and reverses its holding in Middleton, the Dayton Municipal Court is

duty bound to follow the law as it currently stands. See State v. Nieves, 9th Dist. No.

08CA009500, 2009-Ohio-6374, ¶ 52. This Court must therefore decide this case by applying the

law as announced in Middleton, to wit, that in an action on an account, a medical provider is

entitled to the presumption that the reasonable value of the services rendered is its customary

charge.

C. Plaintiff has presented sufficient evidence to prove its case by offering its account

statement as prima facie evidence of the reasonableness of its fees.

Applying Middleton to the facts of this case, the Plaintiff herein has clearly met its

burden. Plaintiff did present evidence, uncontested by the Defendant, that there was an

19

agreement between them under which the Defendant would receive Plaintiff’s professional

services and that Defendant agreed to pay for the services. Plaintiff did not establish that any

agreement existed between it and the Defendant as to the amount of its fee; it is therefore entitled

only to the reasonable value of its services. Plaintiff’s Claim Summary Invoice was entered into

evidence, and its billing specialist’s unchallenged testimony established that the amount billed

was its customary fee under its agreement with the BWC. It is therefore entitled to the rebuttable

presumption that the amount of its fee was reasonable.

It cannot be said whether the Plaintiff might have produced sufficient evidence of

reasonable value to make its case had it been held to the burden of proof under the law as it stood

pre-Middleton. Apart from the Claim Summary Invoice, this Court has no evidence before it that

would prove the reasonable value of the Plaintiff’s services in accordance with the standard set

forth in Saffin, 8 Ohio C.C. at 254-255, 4 Ohio Cir. Dec. 438. But applying, as this Court must,

the binding law of the Second District, it is clear that Plaintiff has made out a prima facie case

that it is entitled to the relief it has sought.

II. Defendant has not met his burden of rebuttal.

The Defendant, in contrast, has not met his burden of rebuttal. The Plaintiff having

established its prima facie case, it is incumbent upon the Defendant to produce evidence to rebut

the Plaintiff’s case, and he has not done so.

A. Defendant’s rebuttal case need not be proved by a preponderance but must meet

plaintiff’s evidence in order to shift the burden back onto the plaintiff.

To be sure, the burden of proof does not shift from the Plaintiff onto the Defendant, as

Defendant correctly points out in his post-trial brief. Def.’s Post-Trial Br. 3. “[T]o rebut and

destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect,

need only produce such amount or degree of proof as will countervail the presumption arising

20

therefrom. In other words, it is sufficient if the evidence offered for that purpose, counterbalance

the evidence by which the prima facie case is made out or established, it need not overbalance or

outweigh it.” Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 133, 77 N.E. 752 (1906). But,

“i‘[w]here the party having the burden of proof establishes a prima facie case, and no proof to

the contrary is offered, he will prevail.’ ” Klunk at 135, quoting Powers v. Russell, 30 Mass. (13

Pick.) 69, 76 (1832).

B. Cross-examination of the Plaintiff’s witness failed to contradict the prima facie

reasonableness of Plaintiff’s charges.

Defendant rested without presenting any of his own evidence or witnesses, and his

rebuttal case relies entirely on his cross-examination of the Plaintiff’s sole witness. The witness’s

apparent lack of personal knowledge of facts establishing the reasonableness and necessity of the

services rendered fails to contradict the presumption that operates in favor of plaintiff once its

bill is admitted into evidence. The witness’s responses upon cross-examination, including her

statements conceding lack of knowledge whether some or all of the services were performed,

lack of knowledge whether Defendant benefitted from the services, and lack of knowledge of the

reasonableness of Plaintiff’s fees, do not place any of the facts into doubt. No doubts as to the

essential elements of the Plaintiff’s case can be raised by simply eliciting the billing specialist’s

admission that she does not know these things. The Plaintiff did not present as a witness any

physician or physical therapist to establish these facts, because that is not the Plaintiff’s burden

under Middleton. Plaintiff called only one witness, its billing specialist, because that was all that

was required to meet its burden, given Middleton’s presumption of reasonableness together with

the uncontradicted testimony that the Defendant agreed to pay Plaintiff for its services. No

inference can be drawn from the billing specialist’s lack of personal knowledge of facts that the

21

Plaintiff is not required to present evidence to prove. Therefore, defendant has not met his

burden of rebuttal.

CONCLUSION

For the foregoing reasons, judgment should be for the Plaintiff.