Opinion
NO. 2011-CA-0609
12-14-2011
TOURO INFIRMARY v. AMERICAN MARITIME OFFICER, AMERIHEALTH ADMINISTRATORS, AMERIHEALTH NEW JERSEY, BENEFIT PLANNERS LIMITED, L.L.P., BROKERAGE CONCEPTS, INC./UNIVERSAL HEALTH, CORESOURCE INC./SUSQUEHANNA HEALTH, CORESOURCE INC.; /FORMOSA PLASTICS, GOLDEN RULE INSURANCE COMPANY, GREAT WEST LIFE & ANNUITY, HEALTH NET, INC. HEALTH PLUS OF LOUISIANA, HMA INC., IATSE LOCAL 39, KAISER FOUNDATION HEALTH PLAN OF COLORADO, KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HEALTH PLAN OF GEORGIA, ET AL.
Franklin D. Beahm Jacob Best BEAHM & GREEN COUNSEL FOR PLAINTIFF/APPELLANT, TOURO INFIRMARY Layna S. Cook Errol J. King, Jr. Daniel P. Guillory BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC COUNSEL FOR DEFENDANT/APPELLEE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2007-1716, DIVISION "E-7"
Honorable Madeleine Landrieu, Judge
Judge Dennis R. Bagneris , Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard,
Judge Paul A. Bonin)
BONIN, J., CONCURS IN THE RESULT ONLY.
Franklin D. Beahm
Jacob Best
BEAHM & GREEN
COUNSEL FOR PLAINTIFF/APPELLANT, TOURO INFIRMARY
Layna S. Cook
Errol J. King, Jr.
Daniel P. Guillory
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
Touro Infirmary ("Touro") appeals the district court's denial of it Motion for New Trial seeking relief from the granting of a summary judgment in favor of Unicare Life and Health Insurance Company ("Unicare"). This matter is on appealand for the reasons that follow, we affirm.
Although the above-referenced Judgments are final and dispositive as to Unicare, several Defendants remain in the case sub judice and two appeals pertaining to the matter in the lower Court (one of which involved Unicare) have already been adjudicated by this Court. The case against the remaining Defendants is currently pending in the Civil District Court for the Parish of Orleans and there is no trial date set in this matter.
Statement of the Case/Procedural History
On February 22, 2007 Touro filed a "Petition on Open Account and for Damages/Penalties" against Unicare, and other managed care organizations, insurers and health plans, in which it alleged that Unicare failed to make full payment for medical services that Touro rendered to members of Unicare.
In its Petition, Touro alleges that it entered into a contract with MultiPlan, Inc. in 2001 to become part of MultiPlan, Inc.'s network of health care providers. Pursuant to the contract with MultiPlan, Inc., Touro agreed to accept discounted rates from MultiPlan, Inc.'s clients. From there, Unicare, contracted with MultiPlan, Inc. (and thus, became a MultiPlan, Inc. client) to access MultiPlan, Inc.'s network of providers and therefore, obtain discounted services, for its members. Touro alleges that it was not given proper notice that Unicare had contracted with MultiPlan, Inc.
When members of Unicare received medical services from Touro, Unicare received a bill from Touro for those services. According to the Petition, Unicare paid Touro the discounted MultiPlan, Inc. rate for the medical services, but contends that the MultiPlan, Inc. discounts were void because Touro was not given proper notice that Unicare had contracted with MultiPlan, Inc. Specifically, Touro alleges that Unicare did not place the MultiPlan, Inc. logo on the identification cards of its members which, according to La. R.S. 40:2203.1 (discussed infra), results in the MultiPlan, Inc. discounts being void. In turn, Touro sought payment from Unicare of its full billed charges for medical services, rather than the MultiPlan, Inc. discounted rate because, allegedly, the MultiPlan, Inc. logo was not on the members' identification cards.
On July 22, 2010, Unicare filed a Motion for Summary Judgment on the basis that the Unicare members for whom Touro has made a claim did, in fact, have the MultiPlan, Inc. logo on their identification cards at the time of their admission to Touro, and therefore, Unicare properly applied the MultiPlan, Inc. discount when paying claims for those members. On October 12, 2010, the Trial Court granted Unicare's Motion for Summary Judgment. Touro requested a New Trial on Unicare's Motion for Summary Judgment which the Trial Court denied on January 6, 2011. It is from this ruling that Touro appeals.
Appellant's Sole Assignment of Error
In its sole assignment of error, Touro argues that Unicare is not entitled to judgment as a matter of law where the relevant statute and the sworn affidavit evidence submitted by both parties demonstrates unequivocally that Unicare was required to access two other PPOs before it accessed Multiplan, Inc. to discount payments for patient services provided at Touro.
Appellate Standard of Review
A new trial shall be granted where: (1) the verdict or judgment appears clearly contrary to law and evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or (3) when the jury was bribed or behaved improperly so that impartial justice was not done. La.Code Civ. Proc. art. 1972. Additionally, Article 1973 provides that a new trial may be granted "in any case if there is good ground therefore, except as otherwise provided by law." A trial judge has broad discretion in the granting or denying of a Motion for New Trial. The appellate standard of review of the ruling on a motion for new trial is whether the trial judge abused his discretion. Citation omitted.Jackson v. Bally's Louisiana, Inc., 2009-1574, p.4 (La. App. 4 Cir. 4/7/10), 36 So.3d 1001, 1003-1004.
Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Wood v. Del Giorno, WWL-AM, et al., 2006-1612, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B).Lyncker v. Design Engineering, Inc., 2010-0740, p.4 (La. App. 4 Cir. 10/20/10), 51 So.3d 137, 140.
Remaining Disputed Claims
In the instant matter, the claims which are disputed are claims against Unicare for patient services provided to Darel Ledet on September 9, 2004; Chantell McGovern on September 9, 2004; Katherine Vice on September 30, 2004; and Lenora Dumas on August 17, 2004. Touro argues that its claims against Unicare were not based solely on the allegation that the benefit cards issued on the disputed claims did not include a MultiPlan, Inc. logo, rather, that Unicare improperly reimbursed Touro at the MultiPlan, Inc. "alternate rates" by failing to access other listed PPOs on the benefit card prior to Unicare being able to access the Multiplan, Inc. Participating PHO Agreement.
Touro maintains that this argument only applies to Mr. Leet, Ms. McGovern, Ms. Vice or Ms. Dumas.
Legal Analysis
MultiPlan, Inc. Logo
According to Touro, at the time services were rendered to the patients whose payments are in dispute, they did not have a benefit card displaying the Multiplan, Inc. logo. Unicare maintains that in the district court Touro failed to produce any evidence to support its allegations that Unicare improperly took the MultiPlan, Inc. discount when it paid claims for services. Unicare supports this contention by arguing that the one identification card Touro has on file for a Unicare member actually has the MultiPlan, Inc. logo on it. The card entered into evidence by Unicare was that of Darrel Ledet. Our review of the record supports that there is a MultiPlan, Inc. logo on the reverse side of Mr. Ledet's benefit card in the lower right corner.
Unicare submitted that it does not keep copies of every individual member identification card it creates and that identification cards for a group are created from the same template. The affidavit of Nancy Terp Elderd, a Legal Specialist in the Legal Department of Unicare, supports such a contention. Further, the record supports that Unicare was able to locate an identification card for a member of the Louisiana Banker's Association and that Ms. Vice and Ms. Dugas' cards were created from the same template and, therefore, would have had the same PPO logos.
LSA-R.S. 40:2203.1, Prohibition of certain practices by preferred provider organizations, states in pertinent part as follows:
A. Except as otherwise provided in this Subsection, the requirements of this Section shall apply to all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part. The provisions of this Section shall not apply to a group purchaser when providing health benefits through its own network or direct provider agreements or to such agreements of a group purchaser.
B. A preferred provider organization's alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser's contractual agreement or agreements and presented to the participating provider when medical care is provided...(emphasis added)
The evidence adduced at trial supports that the Multiplan logo was on the patients' benefit cards. The evidence would have been overwhelming had Unicare been able to produce each individual card of the patients treated; however, the explanation detailed in the affidavit of Ms. Elderd is sufficient to show that all of the benefit cards were the same having been made from the same template. Touro failed to provide the district court with sufficient evidence to dispute Unicare's summary judgment on this issue.
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, then no genuine issue of material fact exists. La. C.C.P. art. 966 C(2). When faced with a supported motion for summary judgment, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or with other competent evidence as provided by law, must set forth specific facts showing that a genuine issue of material fact exists for trial. La. C.C.P. art. 967; Huber, 00-0679, pp. 5-6, 780 So.2d at 554.Franklin Credit Management Corp. v. Gray, 2007-1433, p.5 (La. App. 4 Cir. 1/14/09), 2 So.3d 598, 602.
Alternative Rates
Touro further argues that despite its contention that MultiPlan, Inc. failed to display its logo, Unicare still violated La. R.S. 40:2203.1(B) when Unicare disregarded other PPOs that were under contract with Touro and were identified more prominently on the cards. Specifically Touro maintains that La. R.S. 40:2203.l(B) explicitly sets forth the method by which a payor must determine which discounted rate it will apply when discounting payment made to a provider for patient services provided to an eligible member and that the discounted rate which the statute requires a payor to apply is the rate of the applicable contractual agreement of the first PPO listed on the benefit card, beginning on the front of the card, reading from left to right, line by line, from top to bottom which establishes the contractual agreement for payment.
In reference to this argument, Touro cites La. R.S. 40:2203.1(B), which reads as follows:
B. A preferred provider organization's alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser's contractual agreement or agreements and presented to the participating provider when medical care is provided. When more than one preferred provider organization is shown on the benefit card of a group purchaser or other entity, the applicable contractual agreement that shall be binding on a provider shall be determined as follows:
(1) The first preferred provider organization domiciled in this state, listed on the benefit card, beginning on the front of the card, reading from left to right, line by line, from top to bottom, that is applicable to a provider on the date medical care is rendered,
shall establish the contractual agreement for payment that shall apply.
(2) If there is no preferred provider organization domiciled in this state listed on the benefit card, the first preferred provider organization domiciled outside this state listed on the benefit card, following the same process outlined in Paragraph (1) of this Subsection shall establish the contractual agreement for payment that shall apply.
(3) The side of the benefit card that prominently identifies the name of the insurer, or plan sponsor and beneficiary shall be deemed to be the front of the card.
(4) When no preferred provider organization is listed, the plan sponsor or insurer identified by the card shall be deemed to be the group purchaser for purposes of this Section. (emphasis added).
According to Touro, a cursory review of the benefit card issued to Darrel Ledet and the template benefit card attested to in the Affidavit of Nancy Terp Elderd reveals several other logos prominently displayed on the front of those benefit cards and the MultiPlan logo, to the contrary, is the smallest logo on either benefit card and is displayed on the obverse side of both cards in the lower right-hand corner.
Unicare maintains that Touro amended its petition twice in the district court, but never argued the theory of alternative rates under La. R.S. 40:2203.l(B)(l). Therefore, Unicare reasons that this is a new theory of recovery that was not suggested until Unicare filed its motion for summary judgement and that the law clearly prohibits against an amendment to defeat summary judgment citing, Sinclair Oil & Gas Co. v. Delacroix Corp., 235 So.2d 187, 190 (La. App. 4th. Cir. 1970), "a motion for summary judgment does not permit an amendment of the pleadings under any circumstances and the judgment rendered thereon constitutes a final judgment with the same effect as if there had been a trial on the merits." We will address the argument considering that it is an issue raised in Touro's appellate assignment of error and not raised for the first time on appeal.
Touro offered the affidavit of Robert Remy, Director of managed care for Touro, who testified about the various contractual relationships Touro entered into with different PPHs and PPOs and the dates in which the contracts were enforceable. From there, Touro argues that any applicable contractual agreement it had with Platinum PPO, CCN, Banker Benefits of Louisiana, American Lifecare, or Mississippi Health Partners was required to be applied before Unicare could access the MultiPlan, Inc., agreement to obtain a discount for patient services provided to Mr. Ledet, Ms. McGovern, Ms. Vice, or Ms. Dumas. Touro further argues on appeal that whether not any of those organizations were domiciled in the State of Louisiana at the time patient services were provided to the Unicare
members is irrelevant since MultiPlan, Inc. admitted they were not a domiciliary of Louisiana. This argument is without merit. Mr. Remy's testimony simple outlines Touro's contracts. Touro offered no additional evidence to elaborate how and who shall be paid first in accordance with La. R.S. 40:2203.1(B).
This Court in Franklin Credit Management Corp. v. Gray, 2007-1433 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, discussed the jurisprudential application along with the legislative amendments as to La. C.C.P. art. 966 which holds strong in our review of the instant matter.
...[t]he jurisprudential presumption against granting the summary judgment was legislatively overruled by the amendments to La. C.C.P. art. 966. The amendments now level the playing field between the parties, with the supporting documentation submitted by the parties to be scrutinized equally and the removal of the overriding presumption in favor of trial. Under the amended article, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However once the mover has made a prima facie showing that the motion should be granted, the burden shifts toId at 602.
the non-moving party to present competent evidence demonstrating that material factual issues remain. Once the mover has properly supported the motion for summary judgment, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Huber, 00-0679, p. 6, 780 So.2d at 554.
The district court found that Unicare provided enough evidence to support its contention that no genuine issue of material fact exists as to Unicare reimbursing Touro, and we agree. We further question why Touro chose to file suit against Unicare instead of MultiPlan, Inc., with whom Touro contracted. Regardless, our de novo review reveals no error in the district court's decision.
Decree
For the reasons stated above, we affirm the decision of the district court denying Touro's Motion for New Trial thus affirming the grant of summary judgment in favor of Unicare Life and Health Insurance Company.
AFFIRMED