American Medical Intern., Inc. v. Scheller, 89-0682

• Decision Date: 09 October 1991
• Docket Number: No. 89-0682,89-0682
• Citation: 590 So.2d 947
• Parties: 16 Fla. L. Weekly D2629 AMERICAN MEDICAL INTERNATIONAL, INC., Palm Beach Gardens Community, Inc., and T.R. Bruce, Jr., Appellants, v. Zbigniew SCHELLER, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 947

590 So.2d 947

16 Fla. L. Weekly D2629

AMERICAN MEDICAL INTERNATIONAL, INC., Palm Beach Gardens

Community, Inc., and T.R. Bruce, Jr., Appellants, v. Zbigniew SCHELLER, M.D., Appellee.

No. 89-0682.

District Court of Appeal of Florida,

Fourth District.

Oct. 9, 1991.

Rehearing, Rehearing En Banc and Certification Denied Jan. 24, 1992.

Mark Hicks, Ralph O. Anderson and Bambi G. Blum, of Hicks, Anderson & Blum, P.A., and Kelley, Drye & Warren, Miami, for appellants.

Edna L. Caruso of Edna L. Caruso, P.A., Robert M. Montgomery, Jr., of Montgomery & Larmoyeaux and Jack Scarola of Searcy, Denney, Scarola, Barnhardt & Shipley, West Palm Beach, for appellee.

PER CURIAM.

Appellants American Medical International, Inc. [AMI], Palm Beach Gardens Community Hospital [Hospital], and T.R. Bruce, Jr. [Mr. Bruce] appeal the final judgment entered in favor of appellee Dr. Zbigniew Scheller [Dr. Scheller]. We affirm.

AMI owned the Hospital which employed Mr. Bruce as its administrator and Dr. Scheller as its pathology laboratory director. In 1979 the Hospital terminated Dr. Scheller's contract and replaced him with Dr. Frederick Hobin [Dr. Hobin]. The bylaws of the Hospital's medical staff contained a provision in the membership section, Article IV Sec. 3(b), which stated:

Regardless of an exclusive contract for Pathology, Radiology or the like, a physician with the consent of the Medical Staff may designate a different medical expert in these fields; and that person so designated shall be afforded the full use of the hospital facilities to do his routine work as requested, in which event the medical expert that does the work shall submit the medical fee statement to the patient or the hospital, as the case may be, and there will not be a double billing.

After his termination, Dr. Scheller solicited members of the medical staff to designate him as their medical expert and he received nearly seventy designations. Dr. Scheller gave notice that he intended to continue to practice clinical and anatomical pathology at the Hospital. He then rendered pathology services for the patients admitted to the Hospital by the doctors that had designated him as their medical expert.

Dr. Scheller charged his designated patients for a particular service, known as a "professional component." He arranged for the laboratory's administrative personnel to segregate the clinical tests reports for his designated patients and to deliver those reports for his "review" at his laboratory work station. By coordinating admission and discharge reports, Dr. Scheller's secretary then requested, for each of the designated patients, those parts of the business office computer printout which listed all of the clinical tests performed. With this information his secretary sent a bill to each patient for the "professional component" associated with each clinical test.

Mr. Bruce stopped these practices, and in 1979 Dr. Scheller sought injunctive relief and damages when he sued appellants for the first time [Scheller I]. The Scheller I trial court issued preliminary injunctions which required the Hospital to furnish Dr. Scheller with copies of the clinical test reports that related to his designated patients and copies of their billing information. Upon entry of those injunctions, the laboratory again segregated the clinical test reports and the business office again provided the billing information to Dr. Scheller.

The preliminary injunctions remained in effect and the Scheller I trial court severed the injunction and damages counts. Dr. Scheller sought damages for the Hospital's denial of his access to the clinical test reports and billing information prior to the entry of the injunctions. This court reversed the judgment Dr. Scheller obtained in Scheller I and remanded with directions to the trial court to enter judgment for appellants. American Medical International, Inc. v. Scheller, 462 So.2d 1 (Fla. 4th DCA 1984), rev. denied, 471 So.2d 44 (Fla.1985). This Court ruled then that "mere inconvenience" in obtaining the information did not amount to interference and held that Dr. Scheller never proved that any doctor severed his professional relationship with him because the Hospital did not furnish him the test reports or billing records.

In November of 1980, while Scheller I was on appeal, Dr. Scheller voluntarily dismissed the injunction count which dissolved the preliminary injunctions. Two weeks later, Mr. Bruce told the Hospital's laboratory personnel that they should again discontinue segregating and delivering the clinical laboratory reports to Dr. Scheller and instructed the business office to stop providing Dr. Scheller with the billing records.

Based on Mr. Bruce's actions, Dr. Scheller sued appellants a second time and alleged tortious interference with advantageous business relationships [Scheller II]. ¹ He claimed that for two months in late 1989, appellants deprived him access to the clinical test reports and the billing information. Dr. Scheller also alleged that from July of 1979 to October of 1983 the Hospital double billed his designated patients for clinical tests.

Whether or not Dr. Scheller reviewed a clinical test result, he billed for a "professional component." Dr. Scheller did that in accord with not only the established billing practice of pathologists in Florida, but also the established practice in the majority of the other states. The evidence showed that pathologists were allowed to bill for a "professional component" on clinical tests performed on their patients, even if the pathologist did not review the test. If a test result was normal, the pathologist might never even see it. An abnormal test result might take hours or days of the pathologist's time. However, the pathologist was required to charge each patient the same amount for the same test, regardless of how much time he had to spend on it. In this way, the cost of the professional services for abnormal tests was spread over all the pathology tests performed on the patients.

Dr. Scheller not only billed according to this customary procedure, but when he first began to perform services as a designated medical expert he notified Medicare that he would be directly billing his patients. He obtained a Medicare booklet of allowable charges, which indicated he was entitled to be reimbursed for his "professional component" on every clinical test performed on his patients. Dr. Scheller billed his professional services for clinical tests under Medicare Part B and explained to Medicare exactly what he was doing. Medicare approved his requests for reimbursement as did private insurance carriers. Dr. Hobin and his successor also admitted that Dr. Scheller billed properly.

The Hospital never informed Medicare that Dr. Scheller as a designated medical expert would be billing patients directly. At that point in time, the Hospital paid Dr. Hobin as laboratory director $10,000 a month or $120,000 a year for all clinical, anatomical, administrative and educational pathology services. Because Dr. Hobin agreed to accept a salary, he could not bill patients directly for a "professional component." The Hospital could bill Dr. Hobin's patients a technical component under Medicare Part A (it's cost of running the laboratory) plus a professional component for Dr. Hobin's services under Medicare Part B.

Instead, the Hospital simply continued to bill patients the same way it had been, intentionally disregarding Dr. Scheller's billing practice. The Hospital billed each of Dr. Scheller's patients for not only the technical component but also the "professional component" for Dr. Hobin's professional services. Had the Hospital attempted to do this under Medicare Part B, the bill would clearly have been rejected by Medicare because Dr. Scheller was the one rendering the medical service. The Hospital obtained payment from Medicare for Dr. Hobin's services by calling his charge a Medicare Part A cost, rather than a charge for "professional component." At trial, appellants tried to justify having done this by recharacterizing the charge for Dr. Hobin's "professional component" as an additional charge for administrative services. However, there was evidence that Mr. Bruce had previously sent Dr. Scheller an October of 1979 letter, at AMI's direction, which stated that each bill the Hospital sent out to Dr. Scheller's patients for clinical services included...