Avita Health Sys. v. Robertson ( 2024 )

[Cite as Avita Health Sys. v. Robertson, 2024-Ohio-1619.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
Avita Health System Court of Appeals No. H-23-020
Appellee Trial Court No. CVF2201300
v.
James Robertson DECISION AND JUDGMENT
Appellant Decided: April 26, 2024
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John C. Oberholtzer, for appellant.
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ZMUDA, J.
{¶ 1} Appellant, James Robertson, appeals the June 8, 2023 order of the Norwalk
Municipal Court granting summary judgment in favor of appellee, Avita Health System.
Because no genuine issue of material fact remains, we affirm.
I. Background
{¶ 2} On October 11, 2023, appellee, a health services provider, filed a complaint
against appellant asserting a claim styled as an “action on account/oral contract” and
seeking payment for an outstanding balance of $4,820.28 and $417.60 in prejudgment
statutory interest. Attached to the complaint was an account summary listing dates and
locations of the services appellee claimed to have provided to appellant, with each entry
containing an outstanding balance and a corresponding amount of prejudgment interest.
Appellee filed an answer denying the claims and asserting several affirmative defenses.
{¶ 3} Following written discovery, appellee moved for summary judgment.
Appellee’s motion asserted that appellee provided medical services to appellant in 2020
and appellant failed to pay for the services. Appellee argued that in an action on an
account for services provided, a plaintiff is entitled to recover the reasonable value of the
services. Appellee, citing to Robinson v. Bates, 2006-Ohio-6362, paragraph one of the
syllabus, contended that a medical provider’s bill is prima facie evidence of the
reasonable value of the services. Accordingly, appellee argued that its itemizations of
services—attached to a supporting affidavit filed with the motion as Exhibit A—were
prima facie evidence that the charges were reasonable, and if appellant failed to rebut the
presumption, then appellee was entitled to summary judgment. Further, appellee argued
that because the charges reflected contracted rates between appellee’s insurance provider
and appellant, appellant should join his insurance provider if appellant questioned their
reasonableness. Finally, appellee referred to a second affidavit, exhibit B, to support its
calculation of prejudgment interest.
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{¶ 4} Exhibit A to appellee’s motion for summary judgment was the affidavit of
Morgan Jones, patient receivables manager for appellee.1 Appellee attested to having
personal knowledge of the matters in the affidavit. In the affidavit’s second paragraph,
Jones stated that she had reviewed the account statements and records kept in appellee’s
usual course of business, and after reviewing these records, she determined that
appellant’s principal balance was $4,820.28 for medical services provided by appellee.
Jones further attested that the balance reflected “the reasonable and customary charges
for the services.”
{¶ 5} In the affidavit’s third paragraph, Jones stated that the records referenced in
the affidavit’s second paragraph “were made at or near the time of service, * * * by or
from information transmitted by a person with knowledge[,] * * * kept in the ordinary
course of business and are a product of the regular practice of [appellee].” The affidavit
further declared that attached to the affidavit were documents that constituted a “true and
accurate copy of account for [appellant].”
{¶ 6} Finally, in paragraph 4, Jones averred that appellee had billed any insurance
or third-party payers identified by appellant, and the amounts listed in the attachments
were the remaining balances “based upon the agreed upon and contracted rates with
[appellant’s] private health insurer, Anthem.”
1
Although the affidavit in exhibit A to appellee’s motion for summary judgment was
unexecuted, appellee filed a supplement to its motion for summary judgment providing the
executed affidavit.
3.
{¶ 7} The attachments to Jones’s affidavit are 11 documents labeled as
“itemizations of services” for appellant. Each itemization contains a service location,
provides a service date, and states that appellant was insured through Anthem. Each
itemization also states that the charges are either professional charges or hospital charges,
and identifies either a specific medical provider or a department specialty. The
itemizations also list charges for services, payments made by Anthem, deductible or co-
insurance amounts, and contractual credits for Anthem insureds. The bottom of each
itemization states the total billed charges as well as the patient’s balance, which reflects
the amount due after insurance payments and insurance contractual credits. The sum of
each patient balance from all 11 itemizations is $4,820.28, the amount sought in
appellee’s complaint before prejudgment interest.
{¶ 8} Exhibit B to appellee’s motion for summary judgment is the affidavit of
Amy Daniels, an employee of Debt Recovery Solutions of Ohio, Inc., a collection
agency. Daniels’s affidavit was solely concerned with calculating prejudgment interest.
Daniels asserted that she became familiar with appellant’s unpaid statements with
appellee when her employer was referred the account, and that she calculated the interest
from the date the payment was due on the account until the date the account was referred
to litigation. Attached to her affidavit were several pages providing detail about interest
calculations for each charge.
{¶ 9} In opposing appellee’s motion, appellant made several arguments: (1) the
rationale in Robinson v. Bates, 2006-Ohio-6362, should only apply to claims against an
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insurance company or some other provider, not to claims against a patient; (2) appellant
should owe no balance to appellee; (3) appellee did not submit an accounting of the
payment history on appellant’s account to reflect payments made by either appellant or
which charges had been submitted to and either paid or denied by his insurance company;
and (4) Jones’s affidavit did not satisfy Civ.R. 56(E) because she did not look at original
documents.
{¶ 10} Appellant also submitted his own affidavit to support his opposition to
summary judgment.2 In appellant’s affidavit, appellant attested that on April 22, 2020, he
visited appellee’s Galion facility for a medical test and was hospitalized at the Ontario
facility, he had health insurance through Anthem at that time, and he disputed “that the
bill is for the reasonable value of services rendered and he has no way of knowing what
his insurance provider paid and what is due.”
{¶ 11} Appellee’s reply contended that appellant failed to meet his burden of proof
in providing competent credible evidence to establish a genuine issue of material fact.
Appellee argued that appellant’s affidavit contained only unsupported and self-serving
assertions that were insufficient to create a genuine issue of material fact, and at
2
Appellant also submitted the affidavit of appellant’s counsel, John C. Oberholtzer, with
his opposition brief. Oberholtzer’s affidavit attached appellee’s articles of incorporation,
highlighting the sentence, “In no instance, however, will the Corporation engage in the
practice of medicine.” Appellant’s purpose in attaching appellee’s articles of
incorporation and highlighting this particular sentence is unclear, as appellant did not
make any arguments in his opposition or elsewhere referencing either the articles of
incorporation or this particular sentence.
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minimum, appellant would have had to submit an affidavit from someone other than
himself. Further, appellee argued that its motion was supported by more than the “Bates-
Robinson figures in the invoices,” but also was supported by Jones’s averment in the
affidavit that the services were reasonable and customary.
{¶ 12} The trial court granted summary judgment in favor of appellee without
specifically addressing the parties’ arguments. Appellant filed a timely appeal of the
order.
II. Assignment of Error
{¶ 13} Appellant appeals the trial court’s order granting summary judgment in
favor of appellee, asserting the following assignment of error:
The Trial Court erred in granting Plaintiff’s Motion for Summary Judgment
pursuant to Civil Rule 56 of the Ohio Rules of Civil Procedure.
III. Law and Analysis
{¶ 14} In support of his assignment of error, appellant argues that appellee did not
meet its summary judgment burden because appellee failed to submit evidentiary
materials pursuant to Civ.R. 56(C) to support appellee’s claim. Specifically, appellant
argues that the “Robinson Bates” numbers in medical invoices should only apply to an
insurance company or other provider, not to the patient; the itemizations were not
properly certified through an affiant with personal knowledge; the itemizations were
inaccurate; and appellee did not submit a certified accounting of the account history.
Appellee did not file an opposition brief or otherwise appear in this appeal.
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{¶ 15} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105 (1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129 (9th
Dist.1989). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine
issue as to any material fact exists; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the
nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
“A ‘material fact’ is one that would affect the outcome of the proceeding under the
applicable substantive law.” Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,
304 (6th Dist.1999).
{¶ 16} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292 (1996). In doing so, the moving party must point to some evidence in the
record in the form of “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-293. The burden then shifts to
the nonmoving party to provide evidence showing that a genuine issue of material fact
does exist. Dresher at 293. The failure to satisfy this reciprocal burden warrants
judgment against the nonmoving party. Id.
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{¶ 17} Here, appellee’s complaint asserted an action on an oral contract and under
an account. A prima facie case for an action on an account requires the plaintiff to
affirmatively establish the following:
An account must show the name of the party charged and contain: (1) a beginning
balance (zero, or a sum that can qualify as an account stated, or some other
provable sum); (2) listed items, or an item, dated and identifiable by number or
otherwise, representing charges, or debits, and credits; and (3) summarization by
means of a running or developing balance, or an arrangement of beginning balance
and items which permits the calculation of the amount claimed to be due.
Midland Funding LLC v. Coleman, 2019-Ohio-432, ¶ 15 (6th Dist.).
{¶ 18} A party seeking payment for medical services, absent the admission of a
written contract expressly setting the services’ costs, proceeds under an implied contract
theory. St. Vincent Med. Ctr. v. Sader, 100 Ohio App.3d 379, 384 (6th Dist.1995).
Under an implied contract, one party has provided services to another party under
circumstances in which they expect to be paid. Id. The amount owed for such services is
“so much as they were worth,” or their reasonable value. Id., quoting Columbus,
Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St. 104 (1901).
{¶ 19} Here, in support of its motion for summary judgment, appellee submitted
evidentiary materials to support its claim primarily in the form of Jones’s affidavit.
Jones’s affidavit attested to the accuracy of 11 itemizations of services that appellee
provided to appellant. Each itemization contained details regarding the charges,
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including an identification of the specialty or provider and date of service. The
itemizations also reflect appellant’s insurance benefits. They record payments Anthem
made and state any co-insurance or deductibles that appellant was responsible to pay. In
addition, the itemizations indicate that appellant was given contractual credits, meaning
that appellant, as an insured through Anthem, was billed a lower rate for the medical
services under appellee’s contract with Anthem. The remaining balances on each
itemization, therefore, were not merely appellee’s customary charges, but instead reflect
Anthem’s payments and special rates that Anthem negotiated on appellant’s behalf. In
addition, Jones, as the patient receivables manager, asserted that the charges were
reasonable and customary. Accordingly, Jones’s affidavit was competent evidence
asserting the reasonable value of the services provided.
{¶ 20} We find appellant’s arguments challenging the itemizations unpersuasive.
The balances do not reflect, as appellant alleges, the amounts that would be charged to an
insurance company or another provider. Instead, as already discussed, they clearly reflect
the amount that appellant owes after Anthem paid its portion of the bill and negotiated
lower rates on appellant’s behalf. Further, the itemizations contain detailed information
about insurance credits and payments as well as appellant’s co-insurance and deductibles,
contrary to appellant’s argument claiming that appellant failed to submit a full accounting
to reflect his balance.
{¶ 21} Appellant’s argument that Jones’s affidavit was not based on personal
knowledge also fails. “Generally, unless controverted by other evidence, an affiant’s
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statement that he is making the affidavit based on his personal knowledge is sufficient to
show that he is competent to testify to the matters in the affidavit.” Deutsche Bank Natl.
Tr. Co. v. Boreman, 2020-Ohio-3545, ¶ 33 (6th Dist.), citing U.S. Bank Natl. Assn. v.
Downs, 2016-Ohio-5360, ¶ 20 (6th Dist.). Here, Jones attested that she had personal
knowledge and reviewed appellant’s account statements and records. Appellant has
failed to submit or point to any evidence controverting Jones’s statements regarding
personal knowledge.
{¶ 22} Appellant also alleges that the itemizations were not properly
authenticated. First, appellant argues that the affidavit authenticates documents attached
to the complaint rather than those attached to the affidavit. Appellant is apparently
referring to the statement in the affidavit’s third paragraph that begins, “[t]he records
referenced in Paragraph 2 memorialize the services rendered by Avita Health Services
and the charges for each service * * *.” However, this sentence does not mention the
complaint at all, and instead is a reference to the second paragraph of the affidavit that
discusses appellee’s “account statements and records.”
{¶ 23} Appellant also argues that Jones did not look at the original statements and
therefore her affidavit does not satisfy Civ.R. 56(E). Civ.R. 56(E) does not require an
affiant to expressly state that the affiant compared a copy of a document to its original.
Downs at ¶ 44 (6th Dist.). Instead, an averment that the copy of the document attached to
the affidavit is a true and accurate copy of the original document is sufficient to satisfy
Civ.R. 56(E). Id. Here, Jones expressly averred that the attached itemizations were “a
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true and accurate copy of account for [appellant].” Accordingly, Jones’s affidavit
properly authenticated the attached itemizations under Civ.R. 56(E).
{¶ 24} Because appellee supported its motion for summary judgment with
competent evidence establishing its claim against appellant, appellant is entitled to
summary judgment unless appellant submitted competent evidence establishing a genuine
issue of material fact still exists. Appellant did not do so. Instead, appellant submitted
his own affidavit admitting he received medical services from appellee but disputing the
charges and questioning their reasonableness, which is insufficient to withstand summary
judgment. See OhioHealth Corp. v. Ryan, 2012-Ohio-60, ¶ 37-38 (6th Dist.) (holding
that appellant’s affidavit containing “bare refutations” that he did not owe the amount
alleged in a medical bill and did not have information about reasonable and customary
pricing of medical services was not sufficient to meet summary judgment burden). See
also Whispering Woods Communities, LLC v. Orwig, 2022-Ohio-4426, ¶ 33 (6th Dist.),
quoting Northwest Ohio Properties, Ltd. v. County of Lucas, 2018-Ohio-4239, ¶ 30 (6th
Dist.) (“In summary judgment cases, we have previously recognized that ‘[t]he
nonmovant cannot avoid summary judgment by submitting an unsupported, self-serving
affidavit.’”). Because appellant did not present any evidence other than his own
unsupported, self-serving affidavit, he did not establish that a genuine issue of material
fact remains, and appellee was entitled to summary judgment.
{¶ 25} Accordingly, we find that the trial court did not err when it granted
summary judgment to appellee, as there are no questions of material fact and appellees is
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entitled to judgment against appellant. Accordingly, we find appellant’s assignment of
error not well-taken.
IV. Conclusion
{¶ 26} For the foregoing reasons, the judgment of the Norwalk Municipal Court is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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