COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70119 CHIROPRACTIC CLINIC OF SOLON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DALE KUTSKO : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Bedford Municipal Court Case No. 91-CVF-02635 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: David G. Finley, Esq. Paul W. Flowers, Esq. 25 Prospect Avenue, N.W., Gary B. Garson Co., L.P.A. 704-L LTV Steel Building The Illuminating Building Cleveland, Ohio 44115 55 Public Square, Suite 1200 Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, Dale Kutsko ("Mr. Kutsko"), appeals the trial court's judgment in favor of plaintiff-appellee, Chiropractic Clinic of Solon ("Chiropractic"). For the reasons set forth herein, we affirm the trial court's judgment. The apposite facts in the underlying litigation form the basis of this appeal. Mr. Kutsko and Chiropractic filed an agreed statement of evidence of the case and proceedings in lieu of a trial transcript, in accordance with App.R. 9(C) From January 5, 1988 to March 21, 1988, Mr. Kutsko was treated at Chiropractic, a professional corporation operated by Dr. David Radford ("Dr. Radford"). No assignment of insurance was accepted. Dr. Radford is a chiropractor licensed in the state of Ohio. Mr. Kutsko signed an agreement concerning the payment of services provided by the clinic. The agreement provides: I understand and agree that health and accident insurance policies are an arrangement between the insurance carrier and myself. Furthermore, I understand that for a small clerical fee this office will prepare any necessary reports and forms to assist me in making collection from the insurance company and that any amount authorized to be paid directly to this office will be credited to my account on receipt. However, I clearly understand and agree that all services rendered me are charged directly to me and that I am personally responsible for payment. I also understand that if I suspend or terminate my care and treatment, any fees for professional services rendered me will be immediately due and payable. Chiropractic's bill for the treatment provided to Mr. Kutsko, from January to March, totaled $1,549.80. Mr. Kutsko paid Chiropractic the sum of $893.80 but he did not pay the remaining balance. -3- On July 24, 1991, Chiropractic filed an action against Mr. Kutsko in Bedford Municipal Court for payment allegedly due for services performed. Mr. Kutsko denied liability and filed a counterclaim. Mr. Kutsko alleged in the counterclaim that the outstanding balance claimed to be owed by Mr. Kutsko was not medically necessary and that Chiropractic's action on charging for payment was an unfair or deceptive consumer sales practice as defined by R.C. 1345.02 and an unconscionable consumer sales practice as defined by R.C. 1345.03. The trial court granted Chiropractic's motion for judgment on the pleadings and dismissed Mr. Kutsko's counterclaim. Subsequently, Mr. Kutsko submitted a motion for reconsideration/clarification of the entry. The trial court partially granted the motion in a nunc pro tunc entry of judgment which was entered on September 11, 1992. The trial court affirmed its dismissal of the counterclaim on the pleadings and entered an express finding that "there was no just reason for delay." Mr. Kutsko filed an appeal to this court, Chiropractic Clinic v. Kutsko (Dec. 30, 1993), Cuyahoga App. No 64580, unreported. ("Kutsko I"), and in the interim, requested a stay of all proceedings before the trial court. This court affirmed the trial court's dismissal of Mr. Kutsko's counterclaim which alleged the violation of the Ohio Consumer Sales Practice Act. On March 23, 1994, the matter was set for hearing upon return of the original papers and journal entry from this court. A pre- trial hearing was set for May 2, 1994. A motion for an order -4- directing this court to certify its record was overruled by the Supreme Court of Ohio No. 94-462. After numerous continuances, the matter was finally set for a bench trial on December 6, 1995, at which both Mr. Kutsko and Chiropractic were represented by counsel. At trial, Mr. Kutsko's account was introduced without opposition. Mr. Kutsko's counsel called Dr. DuVall, an Ohio licensed chiropractor, as his expert witness. The trial judge excluded, over Mr. Kutsko's counsel's objections, all evidence on the issue of medical necessity and malpractice. Mr. Kutsko's counsel then proffered Dr. DuVall's qualifications. Dr. DuVall, it was proffered, had reviewed Dr. Radford's chart, record, and bill and concluded in his professional opinion, based upon his knowledge, training and experience to a reasonable degree of medical certainty, that all services and treatments which had not been paid for were medically unnecessary. On December 26, 1995, Bedford Municipal Court entered judgment in favor of Chiropractic, in the sum of $656 plus 10 percent interest from June 20, 1988 and court costs. Mr. Kutsko appeals and raises the following assignment of error for this court to review: IN THIS COLLECTION CLAIM UPON A CHIROPRACTIC BILL, THE BEDFORD MUNICIPAL COURT ERRED BY EXCLUDING ALL TESTIMONY PERTAINING TO THE DEFENSE OF LACK OF MEDICAL NECESSITY. In his sole assignment of error, Mr. Kutsko attacks the trial court's ruling on the ground that it erroneously excluded all testimony pertaining to the issue of medical necessity. Specifically, Mr. Kutsko submits that medical necessity is a valid -5- defense in the state of Ohio to a claim for payment of medical services. Chiropractic, on the other hand, counters that the issue before the trial court was a determination of the reasonable value of Chiropractic services where neither special contract nor malpractice is alleged. Under these circumstances, the trial court did not err when it excluded evidence which was not relative to ascertaining the usual price for like services. Evid. R. 401 defines relevant evidence: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 402 pertains to the admission of relevant evidence: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173. An appellate court which reviews a trial court's exclusion of evidence must limit its review to whether the lower court abused its discretion. Rigsby v. Lake Cty. (1991), 58 Ohio St.3d 269. An "abuse of discretion" connotes more than an error of law or judgment; it implies that the court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Where there exists competent and credible evidence supporting findings and conclusions of trial court, deference to such findings -6- must be given by the reviewing court. Meyer v. Garson (1993), 66 Ohio St.3d 60. In Ohio it has been held that the general definition of the practice of medicine includes the practice of chiropractic. Shackelford v. Corte, Inc. (1982), 8 Ohio App.3d 418, 419. A chiropractor is a licensed practitioner who is authorized "to examine, diagnose and assume responsibility for the care of patients," and further, is certified to use the title "doctor" or "doctor of chiropractic." R.C. 4734.09. The implied duty of a physician to a patient is to utilize the requisite degree of care on the case until the relationship is terminated. Amer. v. Akron City Hosp. (1976), 47 Ohio St. 2d 85. A chiropractor is only required to exercise the same degree of care and skill which would have been exercised by other qualified chiropractor in the same circumstances Willett v. Rowekamp (1938), 134 Ohio St. 285. In Ohio, the law regarding physicians' compensation is as follows: 1. A physician is entitled to recover for his services in the same manner as any other person who performs service for another. 2. An employment of a physician by a party without express agreement as to compensation raises an implied agreement to pay what the services are reasonably worth. 3. In the absence of an express agreement, the right of a physician to be compensated for his services does not depend upon the measure of his success in affecting a cure by the means employed, [but] upon diligent exercise under his employment of the skill which commonly pertains to his profession. -7- The physician-patient relationship is established by an express or implied contract to provide medical services. Tracy v. Merrill Dow Pharmaceutical (1991), 58 Ohio St.3d 147. The implied duty of a physician is to render not only 'indispensable, essential, unavoidable, compulsory or required' medical treatment, but treatment consistent with diligence and skill commonly pertaining to similar physicians in the locality. 67 Ohio Jur. 3d "Malpractice," Section 20. Such services are regarded as beneficial in the legal sense, and the right to adequate compensation arises upon their rendition, whether the outcome be in fact beneficial to the patient, or otherwise. Barman v. Feid 27 Nisi Prius Rpts (NS) 409 (Hamilton C.P., 1929). An action for the reasonable value of medical services is one for quantum merit. Neurosurgical Associates v. Borowsky (Sept. 18, 1980), Cuyahoga App. No. 41197), unreported. The value of medical services, as a general rule, is to be ascertained and fixed by the usual price paid for like services at the time and place of performance. Jabroske v. Williamson (1958), 79 Ohio Law Abs 257. A medical provider may be entitled to a presumption that its customary fees are reasonable, but such a presumption is rebuttable. See Wood v. Elzobeary (1983), 11 Ohio App.3d 27. Proof of the amount paid or the amount of the bill rendered for the nature of the services performed constitute prima facia evidence of necessity and reasonableness of the charges for medical and impartial service. (Citations omitted). Wagner v. Daniel (1984), 9 Ohio St.3d 184; Fiornini v. Winston (1993), 92 Ohio App.3d 419. The necessity and value of such services may be used -8- as a deference to a physician's claim of non-payment. See 74 Ohio Jur. 3d (187), 146-147, Section 185. In order to have a cognizable claim of medical malpractice, appellant must prove that the injury complained of was directly and proximately caused by a practice that a physician of ordinary skill care or diligence would not have done. Taylor v. Children's Hospital, Inc. (1991), 76 Ohio App.3d 541, citing Bruni v. Tatsumi (1976), 48 Ohio St. 2d 127, paragraph one of the syllabus. Mr. Kutsko cites Associated Physicians of M.C.O., Inc. v. Baker (April 27, 1990), Lucas App. No. L-89-209, unreported, for the proposition that the trial court erred when it excluded evidence on the issue of "medical necessity." In Associated Physicians the defendant contracted with the plaintiff, a doctor, who provided her obstetrical care during her pregnancy. yA doctor substituting for her doctor determined that defendant should have a cesarian section, and performed the caesarian section without her knowledge or consent. Subsequently, the defendant was billed for medical services rendered. Defendant refused to make payment for medical services on the ground that the medical services performed were unnecessary and done without her consent. At the trial, it was established that defendant did not have a contract with the doctor who performed the cesarian section. Thus, the burden was on the plaintiff to prove the reasonableness of the services rendered. There was no evidence adduced at trial regarding the reasonableness of the services rendered. -9- On appeal, the Court of Appeals of Lucas County held that the evidence did not find that the amount charged was reasonable for the services rendered. The court in Associated Physician did not address the issue of medically necessity, thus, Associated Physicians does not tend to support appellant's position. Appellant also cites Lockshin v. Blue Cross of Northeast Ohio (1980), 70 Ohio App.2d 70, for the proposition that medical necessity is a term which connotes services that are "indispensable, essential, unavoidable or required." In Lockshin, the court focused on the meaning of the word "necessary," in the terms of a health insurance policy where a physician ordered the services of a private nurse one week before the patient was to undergo an uneventful cesarian section. The physician and insurance company disagreed about whether the services were necessary. The court reasoned that a determination by a physician that certain services were necessary was not conclusive and binding upon the patient's insurer. Id. Thus, an insurance company can properly refuse benefits for "medically unnecessary" procedures. Id. Similarly, Mr. Kutsko relies on St. Vincent Medical Ctr. v. Sader (1995), 100 Ohio App.3d 379. In St. Vincent, a summary judgment proceeding, an insured's health care provider and insurer disputed the reasonableness of medical fees charged. The trial court concluded because of the definitional differences in the use of the word "reasonable" in the insurance contract and the insured's implied contract with the hospital, the insurance company -10- met its contracted obligations and the insured was obligated to pay the difference. Id. The trial court noted that the insurer's policy defined "reasonableness" specifically in terms of amount billed as compared to other charges in the "locality. The Court of Appeals of Lucas County reversed the trial court on the ground that its reasoning was not valid in the absence of an express agreement by the insured to pay the hospital's customary charges for necessary medical services. Id. The court in St. Vincent held that hospital entitled to presumption that reasonable value of services was its customary degree for such services. Based upon our review of the record below, the trial court did not err when it excluded evidence relating to a cause of malpractice, i.e., a deviation from acceptable standard of medical care, this cause was not a medical malpractice and necessity. The focus of the underlying litigation was whether the fees charged for chiropractic services were reasonable and customary. Herein, the evidence demonstrated that an agreement existed between Mr. Kutsko and Chiropractic, whereby he agreed to pay for all services rendered, and failed to do so. At trial, there was no evidence proffered to demonstrate that Chiropractic's charges were not reasonable and customary. Evidence not relating to the usual prices for like performances at the time and place of performance would not have been relevant. Jabroske. Therefore, the trial court did not err when it excluded evidence relative to malpractice and necessity. Accordingly, Mr. Kutsko's assignment of error is overruled. -11- 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 Bedford Municipal Court to execute this judgment. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., CONCUR; LEO SPELLACY, C.J., CONCURS IN JUDGMENT ONLY. JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .