Hose v. Gatliff , 176 Ohio App. 3d 356 ( 2008 )

{¶ 17} As the majority has correctly noted in paragraph 5 of its opinion, in reviewing a magistrate's decision, a trial court may come to a different legal conclusion if that conclusion is supported by the magistrate's findings of fact. That is, the trial court is to correctly apply the law to the magistrate's factual findings. Neither a trial court nor this court has discretion to disregard the law, even when reviewing a magistrate's decision.

{¶ 18} At paragraph 56 of her decision, the magistrate wrote: "Mother admitted to receiving a telephone message from Mr. Hose informing her that Erica was in the hospital having emergency back surgery." There was absolutely no evidence in the record supporting that finding.

{¶ 19} Mr. Hose's testimony about his telephone call to Gatliff was: "I called her when Erica was in the hospital having back problems, and told her, maybe she needed to get down there to see her, that she was having a rough time of it." He did not testify that he told her it was "emergency back surgery." He did testify that Erica had been to the emergency room several times in the week to ten days before her surgery, but he did not testify that her back surgery, or any other treatment she received, was emergency treatment. Gatliff's testimony about Mr. Hose's telephone call was: "He left a message. To the best of my recollection, it had something to do with her having an infection that was very serious, and that she was in Wadsworth Hospital. I called the next morning, approximately sometime before noon. They indicated that she had been released."

{¶ 20} Gatliff, however, did not object to the magistrate's finding that she admitted that Mr. Hose told her that Erica was "having emergency back surgery." That finding, however, was not a finding that the back surgery was, in fact, emergency back surgery. The magistrate did not make a finding that the back surgery or any other treatment provided to Erica was, in fact, emergency treatment, and there is no evidence in the record that would have supported such a finding.

{¶ 21} The magistrate also did not find that anybody notified Gatliff before Erica was provided any of the treatment for which Mr. and Mrs. Hose sought recovery, and the record would not have supported a finding that anybody had. There was no evidence that anybody notified Gatliff in advance of Erica's back surgery or any other medical care she received.

{¶ 22} The question of law presented by this case, therefore, is whether payments for nonemergency medical care to a minor can be recovered under R.C. 3101.03(D) in the absence of advance notice to the minor's parent. This court's standard of review for this question, as it is for all questions of law, is de novo. E.g., Akron-Canton Waste Oil Inc. v. Safety-KleenOil Serv., Inc. (1992), 81 Ohio App.3d 591, 602,611 N.E.2d 955.

{¶ 23} In Ohio, a parent is not obligated to pay for nonemergency medical care provided her minor child unless, after being provided notice, she "neglected or refused to make suitable provisions." Aharoni v. Michael (1991),74 Ohio App.3d 260, 264-265, 598 N.E.2d 1215 (citing Akron CityHosp. v. Anderson (M.C. 1981), 68 Ohio Misc. 14, 15, 22 O.O.3d 238, 428 N.E.2d 472). Inasmuch as the magistrate neither found that the care given to Erica was emergency care or that Gatliff was provided notice before that care was given, the trial court's determination that Mr. and Mrs. Hose are entitled to reimbursement for the amounts they and their insurance company paid on Erica's behalf is wrong as a matter of law.

{¶ 24} Gatliff has pointed out that she maintained insurance on Erica during the time Erica lived with Mr. and Mrs. Hose and that, in fact, most of the prescriptions on which Mr. and Mrs. Hose paid co-pays were covered by that insurance rather than by their insurance. According to her, if she had been provided advance notice, she could have made arrangements for her insurance company to pay for Erica's care.

{¶ 25} As noted by the majority, the magistrate did find that Gatliff told Mr. and Mrs. Hose, "You got the kid, you get to pay for her now." While unfortunate, that statement is a far cry from a waiver of advance notice as a prerequisite to liability under R.C. 3103.03(D).

{¶ 26} Inasmuch as the magistrate did not find that any of the medical care provided Erica was emergency care or that Gatliff was informed of the proposed care before it was provided, the trial court erred by determining that Mr. and Mrs. Hose were entitled to judgment against Gatliff for the amounts they and their insurance company paid for that care. Gatliff's first assignment of error should be sustained, and her second and third assignments of error should be overruled as moot.