Kolari v. New York-Presbyterian Hosp.

Decision Date29 March 2005
Docket NumberNo. 04 Civ.5733LAP.,No. 04 Civ.7573LAP.,No. 04 Civ.5506LAP.,04 Civ.5506LAP.,04 Civ.5733LAP.,04 Civ.7573LAP.
Citation382 F.Supp.2d 562
PartiesKOLARI, Plaintiff, v. NEW YORK-PRESBYTERIAN HOSPITAL, et al., Defendants. Barbour, Plaintiff, v. New York-Presbyterian Hospital, et al., Defendants. Eroglu, Plaintiff, v. New York-Presbyterian Hospital, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Sills Cummis Epstein & Gross P.C., James S. Frank, Jeffrey J. Greenbaum, James M. Hirschhorn, New York City, and Latham & Watkins LLP, James V. Kearny, Stuart S. Kurlander, New York City, for New York and Presbyterian Hospital and New York-Presbyterian Healthcare System.

Hogan & Hartson, L.L.P., Ty Cobb, Mitchell E. Zamoff, Catherine E. Stetson, Washington, DC, and Hogan & Hartson, L.L.P., Eric J. Stock, New York City, for The American Hospital Association.


PRESKA, District Judge.


Plaintiffs here have lost their way; they need to consult a map or a compass or a Constitution because Plaintiffs have come to the judicial branch for relief that may only be granted by the legislative branch. This action is one of dozens of similar bootless actions filed in twenty-three district courts across the United States on behalf of uninsured and indigent patients, wherein Plaintiffs argue, without basis in law, that private non-profit hospitals are required to provide free or reduced-rate services to uninsured persons. More specifically, Plaintiffs claim that the rates charged by the defendant hospital to uninsured patients are unreasonable merely because various insurers have negotiated with the hospital to pay lower rates — an economically efficient outcome for both sides that is fully sanctioned by New York law.

To support these non-legal arguments, several pages of the Complaint under the heading of "The Lack of Health Insurance in New York" are devoted to statistics of the kind normally associated with legislative hearings. Plaintiffs note, for example, that:

The lack of health insurance is a major problem for many New Yorkers. For example, in 2002, most uninsured New Yorkers (57% in New York City, and 59% in New York State) work full-time. Some uninsured New Yorkers (10% in New York City, and 13% in New York State) work part-time, while 33% in New York City and 29% in New York State were unemployed. Am. Compl. ¶ 17.1

During 2001-2002, 45% of non-citizens, compared to 20% of citizens in New York City were uninsured; and 43% of non-citizens, compared to 14% of citizens were uninsured in New York State. Am. Compl. ¶ 18.

During the period 2000-2002, New York State's uninsured rate was higher than that of the United States. For example, in 2002, New York State's uninsured rate was 18% (25% in New York City) versus 17% for the United States; and in 2000, New York State's uninsured rate was 18% (25% in New York City) versus 16% for the United States. Am. Compl. ¶ 20.

Employer-based coverage is often unavailable or unaffordable. Uninsured people who have jobs may face one or more of the following barriers:

a. Smaller employers are less likely to offer health insurance to their employees because premiums are prohibitively expensive;

b. Service and labor jobs are less likely to provide workers with health insurance;

c. Part-time workers are often not eligible for insurance;

d. Even when employers offer health insurance to low-wage workers, the premiums tend to be higher than for higher-paid workers. Low-wage workers have a harder time affording these premiums, and are more likely to remain uninsured. Am. Compl. ¶ 22.

Further, people who lose their jobs often lose health insurance. Am. Compl. ¶ 23. Buying coverage in the private individual market is often prohibitively expense. Am. Compl. ¶ 25.

The health care safety net leaves many people uncovered, especially adults. Am. Compl. ¶ 26.

Specifically, families in New York with incomes at, or below, 200 percent of the federal poverty level were much more likely to be uninsured than families with incomes above 200 percent of the federal poverty level. For example, in 2002 85% (or 1.5 million) of the 1.8 million uninsured in New York City were "low-income" individuals with annual income no greater than 200% of the federal poverty level. In 2002, for individuals, 200% of the federal poverty level was $17,720. For New York State, 84% (or 2.5 million) of the 3.0 million uninsured were low-income individuals. Am. Compl. ¶ 27.

These are all "facts" and arguments that should be addressed to the political branches — perhaps, in this case, the New York Legislature — not the judicial branch. As set out below, the arguments Plaintiffs attempt to dress up as judicial branch arguments are all without merit. Indeed, at oral argument in this case, Plaintiffs' counsel conceded that two of Plaintiffs' claims should be dismissed. Plaintiffs around the country have fared no better.2 This orchestrated assault on scores of nonprofit hospitals, necessitating the expenditure of those hospitals' scarce resources to beat back meritless legal claims, is undoubtedly part of the litigation explosion that has been so well- documented in the media. E.g., WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991); PHILIP K. HOWARD, THE COLLAPSE OF THE COMMON GOOD: HOW AMERICA'S LAWSUIT CULTURE UNDERMINES OUR FREEDOM (2001). Here, Plaintiffs' ritualistic recourse to litigation will be rebuffed, leaving them to recalibrate their compass and seek relief, if they are so advised, from the political branches.


The above-captioned actions were consolidated on November 8, 2004 upon joint motion of the parties [Docket No. 22]. The lead complaint in this case is the amended complaint filed on September 20, 2004, by plaintiff Shkelqim Kolari ("Kolari") against defendants New York-Presbyterian Hospital (the "Hospital"),3 NY-Presbyterian Health Care System, Inc. (together, the "NYP Defendants"), and the American Hospital Association (the "AHA") (the "Amended Complaint") [Docket No. 13]. Plaintiffs George Barbour ("Barbour") and Gloria Eroglu ("Eroglu") filed amended complaints to reconcile their claims with those in the Amended Complaint on October 27, 2004 (respectively, the "Barbour Amended Complaint" and the "Eroglu Amended Complaint").

The NYP Defendants moved to dismiss counts 1-12 and 15 of the Amended Complaint on October 12, 2004, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure [Docket No. 14]. Defendant AHA moved to dismiss counts 13 and 14 of the Amended Complaint on November 9, 2004 [Docket No. 19]. To streamline the motion practice that was underway prior to the AHA's being added as a defendant and prior to consolidation, the Consolidation Order directed plaintiffs Barbour and Eroglu to file amended complaints adding the new counts that were added by Kolari in his amended complaint. In addition, because the AHA had filed its motion to dismiss the Kolari amended complaint, the AHA was instructed to file motions to dismiss the amended complaints in the Barbour and Eroglu actions on or before December 2, 2004. Plaintiffs in all three actions were instructed to respond to the AHA's motions to dismiss by December 24, 2004, and the AHA was instructed to submit one reply brief to the Plaintiff's several briefs in opposition to the motions. Accordingly, the AHA filed its motion to dismiss the Barbour and Eroglu complaints on December 12, 2004 [Docket No. 27]. I have reviewed and considered the Plaintiffs' various amended complaints and all of the moving papers and briefs filed by all of the plaintiffs and all of the defendants. In addition, I have considered the Notice of Supplemental Authority filed by Kolari on January 19, 2005 [Docket No. 39]. Oral argument was held on all motions to dismiss on January 12, 2005. For the following reasons, the motions to dismiss are granted in their entirety.

A. Shkelqim Kolari and Sarah Vail

On or about October 30, 2000, plaintiff Shkelqim Kolari ("Kolari") was severely burned on his arm. Am. Compl. ¶ 63. Although he did not have any health insurance, Kolari was taken by ambulance to New York Weill Cornell Medical Center, one of several hospitals comprising Defendant New York and Presbyterian Hospital. He was admitted on an inpatient basis and thereafter transferred to the Hospital's Burn Center, where Kolari spent eleven nights. Am. Compl. ¶¶ 63-65. After Kolari's discharge on November 10, 2000, he received a bill from the hospital for approximately $58,000. Am. Compl. ¶ 65. Kolari required outpatient care from the Burn Center every two weeks after his discharge. Am. Compl. ¶ 66. At each visit, the NYP Defendants required Kolari to pay $75 and sign a form concerning payment prior to receiving care. Am. Compl. ¶ 66. On many occasions, Kolari was unable to pay the $75 fee, and the doctors refused to treat him. Am. Compl. ¶ 67. As a result, Kolari received treatment for his burns monthly, instead of bi-monthly. Am. Compl. ¶ 67.

In November 2002, Sarah Vail ("Vail") was admitted to the New York Weill Cornell Medical Center due to complications stemming from her pregnancy. Am Compl. ¶ 69. At the time of her admission, Vail did not have health insurance. Am. Compl. ¶ 69. She was admitted for approximately two nights, for which she was billed approximately $20,000. Am. Compl. ¶ 70.

Both Kolari and Vail have received numerous telephone calls and/or letters demanding payment of their respective hospital bills and threatening litigation. Am. Compl. ¶¶ 68, 71. Plaintiffs do not know the identity of the individual and/or entities who made the telephone calls attempting to collect on the NYP Defendants' bills. Am. Compl. ¶¶ 14,...

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