Failure to Properly Respond Per Ohio Civil Rules May be Fatal to Your Subrogation Claim
In Ohio, court documents may arrive in several different forms. The court document or pleading most likely to be seen first would be a “Summons and Complaint” naming a plan or TPA (usually improperly named) as a defendant, which is very common in Ohio. In fact, some courts require the subrogated interest(s) such as a health plan or workers comp lien to be added as a party where not originally named. The document you receive may be an initial complaint alleging injury or an amended complaint by which the lien interest is being added to the already ongoing litigation.
Under Ohio law, a defendant has only 28 days from the date the summons and complaint or amended complaint are first received in which to answer. The 28 days begins running as soon as the party or its agent (i.e., statutory agent, TPA, any office address, etc.) receives the suit papers. We all know this time can pass all too quickly during the press of ordinary business, while the court document is first associated with a particular member (or subscriber’s relative) and eventually makes its way to the appropriate handler for the first time.
A timely phone call to Ohio outside counsel, even with limited information, can help stave off the potentially bad consequences of a late response. It should be emphasized here that it is not sufficient at this point under either the Ohio civil rules or practical experience for the file handler to simply call or write the plaintiff’s attorney – the simple fact is that you need to get right with the court through counsel at the peril of your subrogated interest.
More urgent would be receipt of a “Motion for Default Judgment” against the lien interest. Worse still would be receipt of a notice of default hearing or a default judgment entry dismissing the subrogated lien interest. Again, in the spirit of “better late than never,” a timely phone call to Ohio counsel may ameliorate a problematic situation.
Even aside from these more typical “invitations” to join pending state court litigation, the plan or TPA may (and in fact should under the Ohio rules) receive court notices of hearings, depositions, etc. If you receive a notice or pleading from any court or party in pending litigation, and you do not currently have counsel assigned, receipt of such notice or pleading should prompt a handler to investigate: 1) whether a file has already been referred; and/or 2) whether the file now should be referred out to counsel (hint: if the first answer is “no” the second should be “yes”). Additionally, even where the subrogated interest is not named as a party, the plan or TPA may later become involved through receipt of a records subpoena or just a letter from the member’s counsel. If the matter is in litigation, this would be the appropriate juncture at which the interest should intervene in the suit.
One perhaps unique feature of Ohio law is the fact that the subrogated lien interest, even if not a named party, may ultimately become involved in trial via a third-party subpoena. Under the state’s Robinson v. Bates line of decisions, a defendant can introduce evidence of insurance/plan payments and/or provider write offs, etc., to counter the presentation of “face value” billings submitted by the injured plaintiff. This is true even if the subrogated interest has been “waived” or some out-of-court “understanding” has been reached with the plaintiff’s attorney. So, involvement of Ohio counsel on the ground is best done sooner rather than later when you learn of pending litigation affecting your subrogated interest.
Roberts, Matejczyk & Ita Co., L.P.A. has handled Ohio-based health care and health insurer subrogation litigation involving health plans, FEHBA (federal employee), Medicare Advantage and Self-insured ERISA, and other health plans for over a quarter century.
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