Surprise Medical Billing Statutes Ignore Fundamental Right – What Happened to the Right to a Jury Trial?

Surprise medical billing has been a key issue targeted by legislators across the country, including by the U.S. House and Senate. Surprise medical bills arise when a patient inadvertently receives care from an out-of-network provider, such as when a patient seeks care at an in-network facility and is treated by an out-of-network provider (e.g. an anesthesiologist). The out-of-network provider then bills the patient (or other financially responsible party, such as a parent or guardian) for the difference between the billed amount and the amount reimbursed by the health plan. While the U.S. House and Senate have been unable to enact any legislation to address this issue, more than half the states have enacted some form of surprise billing legislation.

The legislation typically removes the patient from the equation, even though he or she has the legal right to dispute the bill. Ultimately, under surprising billing legislation, medical providers and insurers argue over how much a patient should have paid the provider. The legislation sounds like it is protecting the patient. After all, the provider will not be permitted to balance bill the patient.

Ohio may soon join the majority of states that have surprise medical billing legislation. H.B. 388 recently passed the Ohio House and will be before the Senate as early as this week. H.B. 388 provides for mandatory baseball style arbitration (with the winner paying 30% of the arbitrator’s bill and the loser paying 70%). The parties to the arbitration are providers and health plan issuers. As expected, the patient is not involved in the process.

In mandating arbitration, H.B. 388 does not provide medical providers, payers, and patients access to a jury trial to determine the amount, if any, that the provider is owed. Don’t they have a right to a jury trial? Is this legislation (and likely similar legislation in other states) unconstitutional?

Section 5 of Article I of the Ohio Constitution provides “[t]he right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.” This right, however, is not guaranteed in all controversies. The guaranty, however, preserves the right to a jury trial in cases that existed at common law prior to the adoption of the Ohio Constitution, such as breach of contract and actions for money.[1] These are the types of claims a medical provider asserts when suing on a balance bill.

A party can waive its right to a jury trial, but it cannot have it legislatively stripped away. This is exactly what H.B. 388 proposes to do (and what other states’ surprise medical billing legislation has done). H.B. 388 deprives providers, health plan issuers, and patients their right to a jury trial. Patients do not get to be heard at all under the legislation.

To date, no one has challenged the constitutionality of surprise billing legislation on the grounds that it deprives providers, insurers and patients the right to a trial by jury. The reason is obvious. Providers and insurers have lobbied for their position and any enacted legislation benefits (or at least does not injure) either party. Patients do not have such lobbying power and do not understand that they are the one’s being harmed by the legislation. After all, they will no longer receive balance bills. That’s good a good thing, right?

But what are the results when the patient is removed from the process and the constitutional right of all parties to a trial by jury is eliminated? Health care costs go up. In New York (which enacted legislation in 2015), “arbiters are typically deciding on dollar amounts above the 80th percentile of typical costs,” which is three times the amount a patient would pay if the doctor were in-network.[2] Those costs are most likely passed on to the consumer in the form of higher premiums. The providers and insurers are not absorbing those costs. The rates set by providers for their services (which are arbitrarily set) will likely continue to increase, leading to payment by insurers at inflated rates. Insurers will simply pass the cost on to their insureds.

If the legislators truly want to protect the patient, they should draft legislation that is constitutional and does not lead to an increase in costs to the insureds. Legislators should focus on drafting meaningful and effective surprise medical billing and balance billing legislation, not just any legislation using these buzzwords. Legislators should evaluate why balance bills are problematic for individuals and address those problems (i.e. preventing providers and collection agencies from reporting medical bills to the credit bureaus until a final judgment). At a minimum, they should not deprive people of their constitutional rights under the guise of protection.



[1] Belding v. State, 121 Ohio St. 393, 396 (1929); Raskow v. Fortner, 1998 Ohio App. LEXIS 1563, *4 (9th Dist. Apr. 15, 1998) (money judgment); Dockery v. Dr. Bo Auto Clinic, 2001 Ohio App. LEXIS 3327, *3-4 (6th Dist. July 27, 2001) (breach of contract).

[2] To End Surprise Medical Bills, New York Tried Arbitration. Health Care Costs Went Up by Rachel Bluth, Nov. 5, 2019 (