Blue Cross and Blue Shield v. Hodurski

• Citation: 899 So.2d 949
• Parties: BLUE CROSS AND BLUE SHIELD OF ALABAMA v. Donald HODURSKI, M.D.; Norman Hobbs; and Samuel Irvine.
• Decision Date: 16 July 2004
• Court: Supreme Court of Alabama

899 So.2d 949

BLUE CROSS AND BLUE SHIELD OF ALABAMA v. Donald HODURSKI, M.D.; Norman Hobbs; and Samuel Irvine.

1022154.

Supreme Court of Alabama.

July 16, 2004.

Rehearing Denied October 22, 2004.

Cavender C. Kimble, Leigh Anne Hodge, and Ed R. Haden of Balch & Bingham, LLP, Birmingham; and David R. Boyd and Robin G. Laurie of Balch & Bingham, LLP, Montgomery, for appellant.

David A. Bagwell, Fairhope; George W. Finkbohner III and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and Randall W. Nichols and Richard A. Bearden of Massey, Stotser & Nichols, P.C., Birmingham, for appellees. LYONS, Justice.

Blue Cross and Blue Shield of Alabama ("BCBS") appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Donald Hodurski, M.D., and two physician assistants, Norman Hobbs and Samuel Irvine (hereinafter collectively referred to as "the providers"). The issue presented is whether a statute included in the Insurance Code, the Physician Assistant Act, codified at § 27-51-1, Ala.Code 1975, is applicable to BCBS, a nonprofit health-care service organization that exists pursuant to Title 10 of the Alabama Code of 1975. BCBS argues that the Physician Assistant Act cannot apply to it because the provisions of § 10-4-115 and § 27-1-4(2), Ala.Code 1975, describing the procedure for making laws regulating insurance applicable to entities such as BCBS, do not provide for its application. The providers argue that the Physician Assistant Act, enacted after the acts that were codified at § 10-4-115 and § 27-1-4(2), expressly describes entities such as BCBS as coming within its terms.

I. Undisputed Material Facts

Dr. Hodurski is a licensed physician practicing in Montgomery. His group of medical doctors employs physician assistants who have provided care to BCBS insureds, including a physician assistant who functioned as a first assistant in surgery performed by Dr. Hodurski. Dr. Hodurski submitted insurance claims to BCBS for services that physician assistant rendered to patients during surgery. BCBS denied those claims. Hobbs and Irvine are physician assistants licensed in Alabama who provided medical services to patients under the supervision of another practicing physician.

II. Procedural History

In 1999, Hobbs and Irvine sued BCBS, alleging that in denying the claims submitted for services rendered by a physician assistant it had violated § 27-51-1, Ala. Code 1975, and seeking certification as a class action. The complaint was later amended to add Dr. Hodurski as a plaintiff. Based on the undisputed facts, both the providers and BCBS moved for a summary judgment. The trial court entered a summary judgment in favor of the providers, holding that the reference in the Physician Assistant Act to medical-service organizations created pursuant to Title 10 specifically and clearly refers to entities such as BCBS;¹ that a subsequently enacted more specific statute, such as § 27-51-1, governed an earlier enacted more general statute, such as § 10-4-115, and, therefore, that § 27-51-1 prevailed over § 10-4-115; and that the requirement in § 10-4-115 was an unconstitutional attempt to limit the Legislature's power because no legislature can require the legislative enactment of a later legislature to be included in a particular title of the Code in order to be effective. BCBS appeals, challenging the standing of all three of the providers and contending that the trial court misapplied the applicable law to the undisputed facts. For the reasons set forth below, we affirm.

III. Standards of Review

The principles of law applicable to reviewing a summary-judgment motion are well settled. To grant such a motion, the judge must determine that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions have been satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, we apply the same standard as did the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

The standard of review applicable to a determination of standing was accurately set forth by Judge Crawley in Medical Association of the State of Alabama v. Shoemake, 656 So.2d 863, 865 (Ala.Civ. App.1995) ("No presumption of correctness exists as to the trial court's application of the law to the facts. Jayroe v. Hall, 624 So.2d 522 (Ala.1993). The issue of standing presents a pure question of law, and the trial court's ruling on that issue is entitled to no deference on appeal. Richards v. Cullen, 152 Wis.2d 710, 712, 449 N.W.2d 318, 319 (App.1989).").

IV. Statutory Background

Title 10, Chapter 4, Article 6, of the Alabama Code of 1975, governs nonstock corporations organized for the purpose of establishing, maintaining, and operating not-for-profit health-care service plans under which health-care services are furnished to members of the public who become subscribers to the plan pursuant to contracts (those entities are hereinafter referred to as "Title 10 insurers"). BCBS is organized pursuant to Title 10, Chapter 4, Article 6, i.e., BCBS is a not-for-profit corporation organized for the purpose of establishing, maintaining, and operating a not-for-profit health-care service plan as described above. Thus, BCBS is a Title 10 insurer. Title 27 of the Alabama Code of 1975 addresses, generally, insurance, insurance policies, and insurance companies.

Section 10-4-115, Ala.Code 1975, contains language exempting any Title 10 insurer from the applicability of any "statute of this state applying to insurance companies" unless certain amendments are expressly made to Title 10, Chapter 4, Article 6. Section 10-4-115 provides:

"No statute of this state applying to insurance companies shall be applicable to any corporation organized under the provisions of this article [Title 10, Chapter 4, Article 6] and amendments thereto or to any contract made by the corporation unless expressly mentioned in this article and made applicable; except as follows:

"(1) The corporation shall be subject to the provisions regarding annual premium tax to be paid by insurers on insurance premiums.

"(2) The corporation shall be subject to the provisions of Chapter 55, Title 27, regarding the prohibition of unfair discriminatory acts by insurers on the basis of an applicant's or insured's abuse status.

"(3) The corporation shall be subject to the provisions regarding Medicare Supplement Minimum Standards set forth in Article 2 of Chapter 19 of Title 27, and Long-Term Care Insurance Policy Minimum Standards set forth in Article 3 of Chapter 19 of Title 27.

"(4) The corporation shall be subject to Section 27-1-17, requiring insurers and health plans to pay health care providers in a timely manner.

"(5) The corporation shall be subject to the provisions of Chapter 56 of Title 27, regarding the Access to Eye Care Act.

"(6) The corporation shall be subject to the regulations promulgated by the Commissioner of Insurance pursuant to Sections 27-7-43 and 27-7-44.

"(7) The corporation shall be subject to the provisions of Chapter 54 of Title 27."

(Emphasis added.)

Section § 27-1-4(2), Ala.Code 1975, provides:

"This title [Title 27] shall not apply as to:

"....

"(2) Nonprofit corporations for establishment of hospitalization plan [sic] under Section 10-4-100 et seq., except to the extent now or hereafter provided in such laws...."

In 1997, the Legislature enacted § 27-51-1, Ala.Code 1975, known as the "Physician Assistant Act." That Act provides:

"(a) An insurance policy or contract providing for third-party payment or prepayment of health or medical expenses shall include a provision for the payment to a supervising physician for necessary medical or surgical services that are provided by a licensed physician assistant practicing under the supervision of the physician, and pursuant to the rules, regulations, and parameters for physician assistants, if the policy or contract pays for the same care and treatment provided by a licensed physician or doctor of osteopathy.

"(b) An insurance policy or contract subject to this section shall not impose a practice or supervision restriction which is inconsistent with or more restrictive than provided by law.

"(c) This section shall apply to services provided under a policy or contract delivered, continued, or renewed in this state on or after August 1, 1997, and to any existing policy or contract, on the policy's or contract's anniversary or renewal date, or upon the expiration of the applicable collective bargaining contract, if any, whichever is later.

"(d) This section does not apply to policyholders or subscribers eligible for coverage under Title XVIII of the federal Social Security Act or any similar coverage under a state or federal government plan.

"(e) For purposes of this section, third-party payment or prepayment includes an individual or group policy or accident or health insurance or individual or group hospital or health care service contract, an individual or group health maintenance organization contract, an organized delivery system contract, a medical service organization created pursuant to Article 6, Chapter 4, Title 10, or a preferred provider

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