E.R. Visit with Insurance? You Might Pay Out of Pocket

Originally published by Anderson Law Firm's Injury Blog.

If you are a fully insured group or retail HMO member of Blue Cross Blue Shield (BCBS) of Texas might have to pay for your emergency room visit. This may come to a surprise to the nearly 500,000 Texans with this kind of coverage. Whether or not they have to pay for the emergency room bill would depend on the severity of the initial reason going. For example, BCBS might see a rash differently than a broken bone, a stomach ache different from a foot sprain, and so on.

The biggest factor considered in this new policy is, you guessed it, money. In a memo to consultants and brokers, BCBS stated that the new policy is being enacted to save insurance members’ money from what could otherwise be treated in a doctor’s appointment. The new policy goes into effect June 4^th of this year.

What Would Be Considered an Emergency?

This is one of the biggest questions – and concerns – that people have with the new policy. In other words, what injury or symptom is considered important enough to merit a visit to the emergency room? On one hand, it is understandable for people who know they have a minor injury to care for it at home until they can visit their primary care physician. Take, for instance, someone who was playing a sport and got a small scrape. That scrape can probably be cared for with hydrogen peroxide and a band-aid. On the other hand, let’s say that same person got their arm broken. This would require a doctor to properly care for the broken bone and intense pain.

There is an issue with self-diagnosing worth looking into, though. Self-diagnosing – or in this case, diagnosing to see the potential value of an emergency room visit – could involve inaccurate diagnosis that could be harmful to a person. For example, if someone has a strong stomach ache-type pain, they might rule it out as something they ate recently in order to avoid worrying about a medical bill. However, what if that person’s appendix burst and requires immediate medical help? This misdiagnosis could result in a serious abdominal inflammation (peritonitis), which untreated can be fatal.

As you might tell, there is a very gray and blurry line between which injuries and symptoms require emergency care. BCBS should, if anything, have a general list of what their insurance would consider acceptable for a claim. Also, whether or not this new policy violates state insurance laws would be up to the Texas Department of Insurance.

What Are Your Thoughts?

On one side, BCBS is attempting to keep the costs of their insurance the same rate for the HMO members mentioned above. On the other side, there could be potential risks dictating what emergency is considered valid for a policy holder to not pay out of pocket for their emergency room visit. Whether or not this can influence other insurance companies’ policies would be up to the response of the policy holders and with fiscal analysis after the policy rolls out; in other words, does the policy actually save BCBS money, and if so, at what costs?

Do you consider the new policy to be fair? Why or why not? Let us know in the comments below.

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Texas Supreme Court Orders Discovery to Determine Reasonableness of Hospital’s Rates

Originally published by Carrington Coleman.

In re North Cypress Medical Center Operating Co., Ltd.
Supreme Court of Texas, No. 16-0851 (April 27, 2017)
Justice Lehrmann (opinion available here); Chief Justice Hecht dissenting (dissent available here)
Debrán O’Neil

Plaintiff sued North Cypress Medical Center Operating Co. (the “Hospital”), challenging the enforceability of the Hospital’s lien for medical services rendered to Plaintiff, who was uninsured. Noting the standard for discovery is lower than the standard for admissibility, the Court held the reimbursement rates a hospital receives from private insurance and federal healthcare programs are relevant to the reasonableness of charges to uninsured patients. The Court therefore required the Hospital to produce that information in discovery.

After providing emergency hospital services to Plaintiff following a car accident, the Hospital billed Plaintiff at its full “rack-rate” and asserted a hospital lien on that amount pursuant to Texas Property Code § 55.002(a), which allows hospitals a lien on money a plaintiff receives for medical expenses caused by the negligence of another person. After the Hospital and Plaintiff failed to reach an agreement on a reduced bill, Plaintiff sought a declaratory judgment that the Hospital’s charges were unreasonable and the lien was invalid to the extent it exceeded the reasonable and regular rate for the services the Hospital rendered. The trial court required the Hospital to produce documents and information concerning its reimbursement rates from private insurers and public payers such as Medicare and Medicaid for the same medical services provided to Plaintiff at the time in question. The Hospital sought mandamus relief, arguing the discovery sought was not relevant to the reasonableness of charges to uninsured patients because uninsured patients are not entitled to the benefits of negotiated rates. Several hospital systems filed amicus briefs in support of the Hospital’s position.

In its opinion ordering production of the contested documents and information, the majority noted that hospitals increasingly charge or quote a “full-price” rate but rarely actually collect that amount. The Court concluded the rates a hospital accepts as payment from the majority of its patients, even if they are differently situated than uninsured patients, are relevant to—but not dispositive of—the reasonableness of its charges for uninsured patients like the Plaintiff here. Because discovery sought must only be relevant to the cause of action, meaning it has “any tendency to make a fact … more or less probable than it would be without the evidence,” the insured or negotiated rates were discoverable. The Court rejected the Hospital’s argument that the rates were confidential and proprietary, noting the insurance contracts could be produced pursuant to a confidentiality agreement.

The dissent observed that each patient, whether insured or not, is charged the full rate. Only if there is a negotiated rate with an insurance company or the government does a hospital agree to accept a lower rate, usually due to the benefits to the hospital of having increased patient volumes and ease of collections. The dissent noted that Plaintiff failed to show the rates charged by the Hospital were different than the rates charged to any other similarly-situated patient. Consequently, the dissent argued, insurance or other negotiated reimbursement rates are wholly irrelevant to charges for uninsured patients.

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Evidence, Predicates, & Rule 408: Opinions, May 1, 2018

Originally published by mkhtx.

This morning, the Fourteenth District Court of Appeals released a memorandum opinion in In re J.C.K., No. 14-17-00082-CV, an appeal from a modification in which the father was ordered to pay attorney’s fees in the amount of $252,996.55. But most of the father’s issues on appeal and much of the twelve-page opinion revolve around evidentiary rulings and a packet of documents–a MacGuffin–that was never entered into evidence.*

In April, 2010, the trial court entered a divorce decree which named the parents JMCs of the child. In December, 2010, mother’s attorney sent a letter to father’s attorney which included a proposed modification order, a packet of other documents, and an affidavit by the mother which alleged the father had assaulted her as well as several other women and had drug and alcohol problems. At the time, the father was on deferred adjudication for a previous assault of the mother that had occurred prior to the divorce. In the letter, the mother’s attorney expressed a desire that the parties could reach an agreement regarding the modification based on the attached documents or the mother would have to file the mod with the affidavit attached. According to the father, the proposed modification order would have effectively ended his right to see his son as the proposed order made visitation at the mother’s sole discretion and would have required him to pay exorbitant sums in child support. As mentioned above, the packet of documents which accompanied the letter from mother’s lawyer was also at issue at trial and the appeal. In his brief, father calls this letter from mother’s lawyer an extortion attempt.

Mother filed the modification (without the affidavit attached), seeking to be named SMC, limiting the father’s possession and access, and requesting an increase in child support and payment of the mother’s attorney’s fees. The father counterpetitioned. At the conclusion of the trial, the court named mother SMC and ordered father’s visitation be reduced, supervised, and contingent on him meeting certain requirements, such as him attending drug therapy, and avoiding conviction for domestic violence. The court also ordered him to pay $252,996.55 in attorney’s fees. The court’s findings of fact and conclusions of law found mother had presented credible evidence of father’s drug abuse and violence against women and that it was in the child’s best interests to modify the order.

During the trial, father offered the attorney’s letter which preceded the suit and the mother’s affidavit into evidence. They were admitted. He also evidently “indicated a desire” to enter into the record the entire packet of documents that accompanied the letter and affidavit, but evidently did not offer them. Then, after trial, he attempted to enter into the record a formal bill of exception containing the document packet, but the trial court sustained mother’s objection and refused to accept or sign the bill. Specifically, the trial court found father failed to lay the proper predicate or mark and offer the packet into evidence. Also, he failed to timely comply with all requirements to obtain a completed formal bill of exception.

The father’s first seven issues on appeal assert the trial court erred by not admitting into evidence or considering the packet of documents. Father submitted a bench brief in which he argued the packet of documents was admissible. Mother argued the documents constituted part of a settlement offer and thus were inadmissible. The trial court found that, at that point during the trial, the documents were part of a settlement offer, but did state that the court had not yet heard testimony which would support admitting the documents into evidence under one of the other purposes Rule 408 allows for settlement-related material. On appeal, father argued this was a final ruling regarding the admissibility of the documents; mother argued the trial court did no more than offer a preliminary indication of its ruling which could  change subject to later testimony and potential predicate-laying.  The Court of Appeals found father failed to actually offer the packet of documents into evidence, failed to lay a predicate, and thus failed to preserve the issue of the admissibility of the packet. The issues were overruled.

In his eighth issue, the father challenged the legal and factual sufficiency of the evidence to support the award of attorney’s fees. The trial court found mother had incurred $414,809.80 in reasonable attorney’s fees and ordered father to pay $252,996.55 to mother’s attorney. The Court of Appeals found that though the evidence supporting the reasonableness of the fees “[was] quite succinct,” it was sufficient to support the award.

The trial court was affirmed.

*Because the packet of documents was not entered into evidence and was not part of the record, the court’s opinion does not indicate what the packet contains.

 

 

 

 

 

 

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Can Seaman Sue for Punitive Damages, Even After ‘Miles’?

Originally published by Jim T. Brown and Andrew J. Miller.

 

In the aftermath of the U.S. Supreme Court’s 1990 landmark decision in Miles v. Apex Marine Corp., federal and state courts have grappled with whether
      

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The Problem With the “Elevator Speech”

Originally published by Zach Wolfe.

Flashback to when I had a solo law practice: A recruiter calls me looking for candidates to join a large law firm. I wasn’t really looking to make a move, but I asked about the position because I was curious. “How much portable business are they looking for?” I asked. “At least a million,” she said (meaning dollars per year).

 

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Monkey Lacks Standing Under Copyright Act

Originally published by Legal Writing Prof.

Naruto, the seven-year-old Crested Macaque (a monkey) who took a selfie on the island of Sulawesi, Indonesia had Article III standing under the U.S. Constitution but he (and all other animals) lacked statutory standing under the Copyright Act to sue…

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An opened door only swings so far . . .

Originally published by David Coale.

In re DuPuy Orthopaedics also warns against driving through much traffic through an “opened door” for the admission of evidence, noting:

The district court admitted several pieces of inflammatory character evidence against defendants—including claims of race discrimination and bribes to Saddam Hussein’s Iraqi “regime”—reasoning the defendants had “opened the door” by repeatedly presenting themselves as “wonderful people doing wonderful things.”

. . .

The district court allowed these repeated references to Hussein and the [Deferred Prosecution Agreement] because defendants had supposedly “opened the door” by eliciting testi-mony on their corporate culture and marketing practices. This justification is strained, given that J&J owns more than 265 companies in 60 countries, and the Iraqi portion of the DPA addresses conduct by non-party subsidiaries. “[T]he Rules of Evidence do not simply evaporate when one party opens the door on an issue.”

Nos. 16-11051 et seq. (April 25, 2018) (citations omitted, emphasis added).

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