Avita Health Sys. v. Robertson

[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.

2.

{¶ 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.

6.

{¶ 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.

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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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