A Little Background:
If you go to a mediation of a settlement you might hear your attorney and the mediator refer to the “Robinson Number”. The Robinson number arose out of the interplay between the 2006 Ohio Supreme Court case, Robinson v. Bates and Ohio Revised Code 2315.20. The Robinson number is a modification of Ohio’s version of the Collateral Source Rule.
Something that is not obvious or little known by non-attorneys are the rules of evidence. During trial, the rules of evidence prevent attorneys from presenting certain types of evidence. These rules are founded upon policy reasons which ensure that the finder of fact (the jury) base their verdicts on fair and reliable information. The Collateral Source is one of these policy rules.
The rule states that the defendant may not show that the plaintiff had her medical expenses paid by a collateral source, i.e. by her medical insurance provider. For example, let us assume that you have surgery which costs $30k. Your insurance company pays $25k, leaving you to pay the remaining $5k out-of-pocket. Under the collateral source rule, the defendant would not be permitted to present this $5k number, or the fact that your insurance company covered $25k. The defendant would only be permitted to present the $30k number to the jury.
The policy behind this rule is that your diligence in paying for medical coverage should not benefit the guy who hit you with his car, by reducing the amount of money or damages he pays out. The risk is that the jury might take the information that your insurance company paid for the majority of the back surgery and compensate you for only $5k.
Why is this a problem? On one level this might seem fair, but insurance is not free. It is not something that everyone magically has. It has a real tangible cost. Instead of buying insurance you could have paid a credit card bill, invested in a child’s college fund, saved the money to buy a house. But you were responsible; you sacrificed this money to pay for insurance. Without the Collateral Source Rule, the defendant gets to take money from your wallet and put it in his own. This is how Collateral Source Rule worked in Ohio before Robinson.
In 2005, ORC 2315.20(a) modified Ohio’s collateral source rule. According to ORC 2315.20(a) a defendant may introduce, at trial, any benefit payable to the plaintiff for the damages the plaintiff received as a result of the wrongdoer’s actions. The defendant is not allowed to do this if the source of this benefit has a contractual right of subrogation. Your insurance company has a contractual right of subrogation.
Subrogation means the following: if you get hurt, I’ll pay for your treatment, but if you get any money for your injury, I have the right to recoup the payments I made for your treatment. To illustrate, imagine your son Johnny is pushed on the ground by Billy and scrapes his knee. A bandaid for the knee will cost $10. You give Johnny $8 to pay for a bandaid. If Johnny is able to convince Billy’s mom to give him $10, you would have a right of subrogation to 8 of those 10 dollars.
ORC 2315.20(b) states that if the defendant does show that the plaintiff did receive a benefit from a collateral source (i.e. insurance company ), then the plaintiff may introduce evidence that he had paid for an insurance policy. The plaintiff can say, “yes I did receive $25k for my $30k injury, but I was responsible and paid $100 a month for that policy.”
Robinson v. Bates and Writeoffs
The Ohio Supreme Court in Robinson v. Bates stated that writeoffs are not a benefit, and therefore not barred by the collateral source rule or ORC 2315.20. A writeoff is a discount, negotiated by the plaintiff’s insurance company, on the medical care/surgery/therapy given by the medical provider (the doctor or hospital). How does this affect the collateral source rule? Assume a driver crashed his car into yours; your back surgery costs $30k dollars. Your insurance company negotiates with the hospital so that the cost paid for the surgery is only $5k. The insurance company got a write-off of $25k ($30k cost of surgery – $25k write-off = $5k amount actually paid).
At trial, the defendant is still not allowed to bring in this $5k number, but he can show that there was a writeoff in the amount of $25k. The jurors can do a simple math problem and arrive at the $5k number. Since the defendant did not show that the plaintiff received a benefit ( remember a writeoff is not considered a benefit ), the plaintiff is not allowed to talk about the fact that he diligently and responsibly paid for his insurance. The defendant circumvents the collateral source rule and benefits from the plaintiff’s responsible payment of insurance premiums. After Robinson, the defendant takes money from your wallet after hurting you.