As many practitioners in the field of personal injury litigation are aware, the case of Robinson v. Bates, (2006) 112 Ohio St.3d 17 had produced a wide variety of judicial response. That response included strict adherence to the conceptual underpinnings associated with the decision all the way to the other extreme which basically abrogated the holding of Robinson, supra. In Jaques, the Ohio Supreme Court reaffirmed the vitality of its earlier decision and stated, in paragraphs 15 and 16 of its opinion, the following:

 

            “Because R.C. 2315.20 does not prohibit evidence of write-offs, the admissibility of such evidence is determined under the Rules of Evidence. A plaintiff is entitled to recover the reasonable value of medical expenses incurred due to the defendant’s conduct. Robinson at ¶ 7, 17, citing Wagner, 9 Ohio St.3d 184, 9 OBR 469, 459 N.E.2d 561. The reasonable value may not be either the amount billed by medical providers or the amount accepted as full payment. Id. at ¶ 17. ‘Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.’

 

            The trial court and court of appeals both erred in refusing to admit evidence of write-offs by medical providers relating to Jaques’s care. R.C. 2315.20 does not apply to write-offs, and therefore, our conclusion from Robinson controls – evidence of write-offs is admissible to show the reasonable value of medical expenses.”

 

At this juncture, there is no ambiguity with regard to the status and force of Robinson, supra. 

 

 

 

 

The Seventh District Court of Appeals handed down a decision derivative of a personal injury action that was timely filed and then dismissed. When the personal injury claim was refiled, it was filed seven days beyond the one-year saving statute codified in O.R.C. 2305.19(A). However, when the defendant filed the answer, the only defense raised was that the action was barred by the statute of limitations and no mention was made of the failure to file within the saving statute. When the defendant filed a motion for summary judgment, plaintiff argued that the defendant had waived that defense because of the failure to timely assert same in the answer.

 

The court’s analysis focused on the operation of the statute of limitations compared to the saving statute. The statute of limitations basically defines the period of time in which an action can be commenced. If a lawsuit is dismissed and then refiled outside the applicable statute of limitations, the court reasoned that the lawsuit cannot proceed forward as a result of the statute of limitations. The saving statute merely serves as an exception to the statute of limitations. Accordingly, the court focused on the fact that the defendant did raise the statute of limitations defense which, from an analytical point of view, was the actual bar to the cause of action. Alternatively phrased, the failure to raise the saving statute issue did not change the fact that the refiled action was barred due to the fact that it was filed outside of the applicable statute of limitations. 

 

In paragraph 22 of its opinion, the court stated the following:

 

            “Thus, a failure to comply with the saving statute means that the statute of limitations has run. In fact, even when there is compliance with the saving statute, the statute of limitations would still have technically run, but then the saving statute kicks in to ‘protect’ the plaintiff from the limitations bar. It allows the refiled complaint to relate back to the original timely filing; it is a shield to the limitations bar. (Citation omitted.) It is essentially an exception to the statute of limitations. (Citation omitted.) Moreover, this is a notice-pleadings state. See Civ. R. 8(B). Because an actual violation of the saving statute results in the violation of the statute of limitations, the assertion of the statute of limitations as an affirmative defense in the answer preserves the argument that the saving statute was violated.”

 

It should be noted that, pursuant to O.R.C.P. 8(C), the affirmative defense of the statute of limitations must be raised to avoid a waiver defense.