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Isbell v. Kaiser Found. Health Plan3/8/1993
Per Curiam.
Intervenor-appellant Ohio Department of Human Services ("ODHS") appeals from a judgment of the trial court granting a directed verdict in favor of defendants-appellees Kaiser Foundation Health Plan, Kaiser Foundation Hospitals and Ohio Permanente Medical Group (collectively, "defendants") and dismissing ODHS's complaint for subrogation.
Plaintiffs Bonnie Sue and Danny Isbell filed a complaint in the trial court against defendants for medical malpractice and loss of consortium February 4, 1991. ODHS subsequently filed a motion to intervene as an additional plaintiff asserting statutory subrogation rights based on "approximately $70,000" in Medicaid payments allegedly made to defendants for medical care on behalf of Bonnie Sue Isbell. The trial court granted the motion of ODHS to intervene in an order journalized March 17, 1992. The complaint filed by ODHS raised claims against defendants only and raised no cross-claim against plaintiffs to recover the Medicaid payments.
The case proceeded to a ten-day jury trial commencing June 30, 1992. During the course of the proceedings, the trial court granted defendants' motion for directed verdict against ODHS. The jury subsequently returned a verdict in favor of plaintiffs Bonnie Sue and Danny Isbell against defendants in the amount of $750,000 and $500,000 respectively.
Appellant ODHS timely appeals raising the following sole assignment of error:
"The court erred by granting a directed verdict against the Ohio Department of Human Services when counsel for the department was absent by leave of the court and counsel for the department could have overcome the motion for directed verdict had he been informed of the pending motion."
Appellant ODHS contends the trial court improperly granted a directed verdict in favor of defendants pursuant to Civ.R. 50(A)(4). Civ.R. 50(A)(4) provides as follows:
"(4) When Granted on the Evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
Defendants note that to warrant submitting a subrogation claim to the jury, ODHS as the subrogor must produce evidence to demonstrate the following, viz.: (1) that its subrogee, plaintiff Bonnie Sue Isbell, was entitled to recovesfrom defendants; (2) ODHS made payments on behalf of its subrogee Bonnie Sue Isbell to defendants; (3) these payments were proximately caused by defendants' negligence; and (4) the total dollar amount of these payments, citing Aetna Cas. & Sur. Co. v. Hensgen (1970), 22 Ohio St.2d 83, 51 O.O.2d 106, 258 N.E.2d 237. It is well established that a trial court has the duty not to submit an issue to the jury when sufficient evidence to establish each element of a claim has not been presented. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115, 430 N.E.2d 935; O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896; Bentley v. Stewart (1992), 71 Ohio App.3d 510, 594 N.E.2d 1061.
Based upon our review of the record sub judice, we conclude the trial court properly granted a directed verdict against the ODHS on its subrogation claim for two reasons. First, the Hamilton County Court of Appeals has held that Medicaid payments are collateral source benefits which are neither recoverable by medical malpracti
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