COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68812 HAYWARD KELLEY : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION HMO HEALTH OHIO : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 22, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 259003 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: EDWARD I. STILLMAN, ESQ. PATRICK F. HAGGERTY, ESQ. CHARLES E. WAGNER, ESQ. BRIAN J. KELLY, ESQ. DAVID C. PEEBLES, ESQ. Thompson, Hine & Flory Miller, Stillman & Bartel 1100 National City Bank Bldg. 1610 Euclid Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Hayward Kelley appeals from the trial court's grant of summary judgment in favor of defendant-appellee HMO Health Ohio on plaintiff's claim for reimbursement for health care services supplied plaintiff. Plaintiff contends that genuine issues of material fact precluded summary judgment for defendant Health Ohio. We find no error and affirm summary judgment for the defendant. The background for this case began on June 30, 1992 when plaintiff Kelley was involved in an automobile accident and was taken to Richmond Heights General Hospital where he received emergency treatment for head injuries. Plaintiff was a member of defendant Health Ohio's HMO. Although Richmond Heights was not an approved Plan Provider under Health Ohio's Policy, defendant paid for the emergency treatment because Kelley's wife followed the prescribed procedures in the emergency: plaintiff checked into the nearest hospital and Health Ohio was advised "as soon as possible." At Richmond Heights, Kelley was diagnosed with a variety of medical problems including alcohol withdrawal seizure disorder, concussion syndrome, delirium tremens, closed head trauma, and alcohol hepatitis which necessitated inpatient treatment. Mrs. Kelley sought and obtained the required prior authorization from Health Ohio for coverage of this inpatient care at Richmond Heights. On July 2, defendant claims Mrs. Kelley discussed with Health Ohio the plans for Kelley's discharge and continued treatment of - 3 - his alcohol withdrawal symptoms. Mrs. Kelley was informed that the Plan Provider of outpatient alcohol rehabilitation and detoxification treatment was New Leaf Recovery Program. Mrs. Kelley was advised that inpatient treatment for her husband would be covered by Health Ohio if New Leaf concluded that inpatient treatment was necessary. The service for this program was furnished by Laurelwood Hospital. Mrs. Kelley claims that no one told her about Laurelwood Hospital or any other covered inpatient treatment facility and no one told her that her husband's treatment at Rosary Hall would not be covered. She claims she did not know Rosary Hall was not covered until Rosary Hall called her the day before admitting her husband, seeking payment. At that point, Mrs. Kelley admits telling her husband's doctor that she would pay for his inpatient care if she had to because he was not well enough to be an outpatient. She admitted that she was aware she was limited where she could seek treatment and from whom under the HMO contract. According to defendant, on July 7, 1992, Mrs. Kelley informed Health Ohio and Richmond Heights representatives that she had decided to admit Kelley for inpatient alcohol detoxification/rehabilitation at Rosary Hall/St. Vincent Charity Hospital ("Rosary Hall"), a non-Plan Provider. Defendant claims Mrs. Kelley told Health Ohio that she was aware that this treatment was not covered by the Policy and that she would pay for this treatment herself. She elected this treatment because "she wasn't - 4 - going to bring him home." On July 8, 1992, Kelley was discharged from Richmond Heights and admitted for detoxification and inpatient rehabilitation at Rosary Hall. On July 9, 1992, Health Ohio sent a letter to Mrs. Kelley confirming that the treatment at Rosary Hall was not covered under Kelley's Policy because: (1) the services were not provided by a Plan Provider; (2) the services were not approved by a Plan Physician and the Medical Director; and (3) were not emergency services. Subsequent communications and correspondence ensued in July 1992 in which Mrs. Kelley requested payment for the services at Rosary Hall and Health Ohio declined for the reasons previously given. Kelley remained at Rosary Hall from July 8, 1992 until his discharge on December 12, 1992. In an August 12, 1992 letter, Health Ohio informed Kelley that if he desired to pursue the matter further, he was entitled to do so exclusively through the Policy's grievance procedure, as specified in the subscriber certificate. Kelley did not pursue the prescribed grievance procedure. On September 30, 1993, Kelley brought this action against Health Ohio for breach of contract and bad faith and sought $16,347.45 for his Rosary Hall inpatient treatment. Under Kelley's Policy with Health Ohio, he was entitled to reimbursement for health care services if the services were provided by approved Plan Providers. - 5 - The Policy provided: HMO Health Ohio restricts Member access to health care providers. No Benefits are payable for Covered Services which are not provided, arranged, and authorized by a Plan Physician and approved by the Medical Director. This applies to all covered services except Emergency Services. (Policy at 8). To invoke the emergency exception, the subscriber had to: (1) go to the nearest hospital; (2) *** notify HMO Health Ohio within 24 hours or as soon as possible to request authorization for [the emergency] treatment; (3) *** if it is necessary for you to be admitted to a Hospital as an Inpatient, you must receive prior authorization from the Plan. Follow-up care needed as a result of initial Emergency Services must be authorized by a Plan Physician. (Policy at 9). Health Ohio moved for summary judgment. On March 13, 1995 the trial court granted the motion and found that the definition of emergency services in the Policy did not describe the circumstances of the transfer to Rosary Hall; that Mrs. Kelley "undertook the transfer to Rosary Hall knowing defendant's position of non- coverage and expressed candidly her resolve to transfer the patient to Rosary Hall even if plaintiff had to be personally responsible for payment of the services. *** Plaintiff failed to exhaust the built in administrative remedies with the insurer ***." (Journal Entry at 2-3). The Court further found no evidence of bad faith or fraud as alleged in the complaint. This timely appeal ensued. - 6 - I. THE TRIAL COURT ERRED TO THE DETERMENT [SIC] OF THE PLAINTIFF-APPELLANT HAYWARD KELLEY, IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN THAT THERE EXISTED ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT- APPELLEE HMO OHIO MUST PAY FOR EXPENSES FOR MEDICAL CARE WHICH WAS RECEIVED BY ITS INSURED PLAINTIFF-APPELLANT HAYWARD KELLEY. Plaintiff's principal contention is that his stay at Rosary Hall from July 8, 1992 to December 12, 1992 was covered by the emergency services coverage in the Policy. We disagree. The outcome of this appeal turns on an interpretation of the Policy, which is the contract between the parties. Our primary obligation in construing the provisions of the Policy is to give effect to the intent of the parties. As stated in The Toledo Group v. Benton Industries (1993), 87 Ohio App.3d 798, 805: The interpretation of a written contract is a matter of law for the court. Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, paragraph one of the syllabus. The purpose of contract construction is to effectuate the intent of the parties. Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, 67 O.O.2d 321, 313 N.E.2d 374, paragraph one of the syllabus. The intent of the parties is presumed to reside in the language they chose to employ in the agreement. Kelley v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130, 31 OBR 289, 509 N.E.2d 411, paragraph one of the syllabus. Common words appearing in the instrument will be given their plain and ordinary meaning unless manifest absurdity results or some other meaning is clearly evidenced from the face or overall contents of the contract. Alexander, supra, at paragraph two of the syllabus. - 7 - It is clear that insurance policies are no exception to the general rule. The Ohio Supreme Court stated as follows in Hybud Equip. v. Sphere Drake Ins. (1992), 64 Ohio St.3d 657, 665: As the Borden court correctly noted, this court has consistently held that insurance contracts must be construed in accordance with the same rules as other written contracts. Universal Underwriters Ins. Co. v. Shuff (1981), 67 Ohio St.2d 172, 21 O.O.3d 108, 423 N.E.2d 417; Rhoades v. Equitable Life Assur. Soc. of the United States (1978), 54 Ohio St.2d 45, 8 O.O.3d 39, 374 N.E.2d 643. In applying these rules, we have stated that the most critical rule is that which stops this court from rewriting the contract when the intent of the parties is evident, i.e., if the language of the policy's provisions is clear and unambiguous, this court may not "resort to construction of that language." Karavin v. State Auto. Mut. Ins. Co. (1984), 10 Ohio St.3d 163, 167, 10 OBR 497, 499, 462 N.E.2d 403, 406. In Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 12, 540 N.E.2d 716, 717-718, this court expounded upon this rule further: "*** Thus, in reviewing an insurance policy, words and phrases used therein 'must be given their natural and commonly accepted meaning, where they in fact possess such meaning, to the end that a reasonable interpretation of the insurance contract consistent with the apparent object and plain intent of the parties may be determined.'" (Quoting Gomolka v. State Auto. Mut. Ins. Co. [1982], 70 Ohio St.2d 166, 167- 168, 24 O.O.3d 274, 275-276, 436 N.E.2d 1347, 1348.) In applying the Policy to the facts of this case, we find the following material facts undisputed. When transferred to Rosary Hall, Kelley never went to the emergency room at Rosary Hall or St. Vincent's. He was admitted directly as an inpatient in the alcohol rehabilitation and detoxification unit where he remained for five - 8 - months. The defendant's records show that as early as July 2, 1992, six days before the transfer, defendant discussed with Mrs. Kelley the options available for Mr. Kelley for further care. On July 7, the day before Kelley was admitted to Rosary Hall, Mrs. Kelley brought a cashier's check to Rosary Hall for pre-payment for services. In support of plaintiff's claim that the Rosary Hall treatment was merely a continuation of emergency services supplied at Richmond Heights, plaintiff produced an affidavit from Dr. David M. Grishkin which stated in full text as follows: I have reviewed the records pertaining to the care and treatment rendered Hayward Kelley at Richmond Heights Hospital for the period of July 1992. It is my understanding that my review was to determine the appropriateness of the transfer to St. Vincent's Charity Hospital Rosary Hall. From a review of the chart it is apparent that he presented with the effects of a concussion secondary to a motor vehicle accident, but quickly deteriorated due to the effects of alcoholism. He demonstrated signs of confusion, seizures, delirium tremens and Wernicke's Encephalopathy. Although we tend to think of emergencies in terms of immediate danger to one's life, surely this type of medical condition in my expert opinion qualifies as much of an emergency as someone bleeding to death. The only difference here is that the process is slightly slower and if often not given enough respect as a life threatening condition. The seizures, delirium tremens and encephalopathy could easily result in an acute life threatening situation if not treated by experts in the field. Clearly that would - 9 - mandate a transfer to a facility which specializes in the treatment of alcoholism. In summary not only was the transfer to Rosary Hall necessary, but based on reasonable medical certainty, Mr. Kelley's life was in danger without this transfer. This testimony does not state that plaintiff's inpatient treatment at Rosary Hall was emergency treatment. The statement does not address the detoxification or rehabilitation treatment which Kelley received at Rosary Hall or treat it as emergency services. The plaintiff's proof did not support the contention that his entire course of treatment at Rosary Hall was for emergency services. Pursuant to the Policy definitions, "Emergency Services" is defined as: Medically Necessary Hospital or medical services for a Medical Emergency or accidental injury requiring immediate Medical Care. Immediate Medical Care is required if the lack of it would permanently endanger your health, cause other serious conditions, damage your bodily functions, or cause serious and permanent damage to any of your bodily organs or parts. "Medical Emergency" is in turn defined under the Policy as: the sudden and unexpected onset of an acute medical condition requiring immediate Medical Care. Medical Emergencies include heart attacks, strokes, loss of consciousness or respiration, convulsions, and other acute conditions which we determine to be Medical Emergencies. "When a contract term is defined in the policy, that definition controls what the term means." Watkins v. Brown (1994), - 10 - 97 Ohio App.3d 160, 164. In the case herein, based even on Dr. Grishkin's affidavit, defendant's health problem does not fall within the scope of the definition of "Medical Emergency." Although he was, according to the record, experiencing symptoms of alcohol withdrawal which needed attention, his medical condition was not sudden and unexpected and not yet at the "acute" phase as Dr. Grishkin admitted that it was a slow process and that the plaintiff's condition "could" become an "acute" problem if not treated. Therefore, it was not immediate and not yet acute as plaintiff's own expert affidavit verifies. In any event, even if plaintiff's condition did constitute an emergency, plaintiff failed to follow the Policy provisions in seeking coverage for emergency services on a timely basis. Under the terms of the Policy, the subscriber must do the following in order to receive emergency Coverage: 1. Go to the nearest hospital; 2. You must notify HMO Health Ohio within 24 hours or as soon as possible to request authorization for [the emergency] treatment *** (Policy at 9). In the present case, plaintiff did not go to the nearest hospital or seek approval of the Rosary Hall treatment within 24 hours or "as soon as possible." Almost two weeks elapsed between Mrs. Kelley's decision to admit Kelley to Rosary Hall (July 2, 1992) and her July 15, 1992 letter to Health Ohio seeking emergency consideration. Construing these facts most favorably to the plaintiff, the trial court did not error in holding that Kelley - 11 - did not seek authorization for the treatment "as soon as possible" after Kelley went to Rosary Hall. As illustrated above, the clear and unambiguous language of the Policy required prior authorization from the Plan for inpatient care which Kelley did not seek. Specifically, the Policy states that a member of the HMO "cannot, except as stated in this Policy, receive benefits without prior authorization by a Plan Physician and approval by an HMO Health Ohio Medical Director." (Policy at 4). This language is clear and unambiguous and must be interpreted consistently with its plain and ordinary meaning. State Farm Auto Ins. v. Rose (1991), 61 Ohio St.3d 528, 531; Olmstead v. Lumbermens Mutual Insurance Co. (1969), 23 Ohio App.2d 185, 190. The facts also demonstrate that Mrs. Kelley understood the contract created by the Policy and the obligations which it created since she followed the necessary procedure for authorization of the inpatient care at Richmond Heights. Despite this knowledge, however, she failed to follow the Policy procedures with regard to the inpatient treatment at Rosary Hall. Given the foregoing discussion, it is not necessary to address plaintiff's arguments that he complied with the grievance procedures of the Policy or that the insurer acted in bad faith in refusing the payment of claims. App. R. 12(A)(1)(c). Plaintiff's assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .