Lustgarten v. Lustgarten
| Decision Date | 05 August 2011 |
| Docket Number | No. 4D09–4404.,4D09–4404. |
| Citation | 65 So.3d 85 |
| Parties | Michael E. LUSTGARTEN, Appellant,v.Patricia LUSTGARTEN, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Karen O'Brien Steger of Steger & Steger, P.A., Stuart, and for appellant.Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellee.GERBER, J.
The former husband appeals the circuit court's final order holding him in contempt for willfully failing to pay the cost of the former wife's liver transplant. The husband argues that the transplant was not “reasonable and necessary” and that his actions were not willful. We reject the first argument but agree with the second. Thus, we reverse.
The husband and wife entered into a settlement which the court incorporated into a final judgment of dissolution. The judgment provides:
[S]o long as [the husband's] alimony obligation exists, [he] shall also pay the wife's medical insurance coverage and pay all reasonable and necessary medical, hospital, prescription drugs, and dental expenses not covered by insurance....
After the wife became eligible for Medicare, the parties requested the court to amend the original judgment. The amended judgment provides:
3. The Husband shall pay the premium for the ... Wife's Medicare insurance. He shall also be responsible to pay the following:
a) All uncovered expenses incurred under the care of a medical professional accepting Medicare assignment.
....
The wife later filed a motion for contempt. In the motion, the wife alleged that she had been diagnosed with bile duct cancer and decided to have a liver transplant which her Mayo Clinic physicians recommended. She further alleged that Medicare would not cover the expense of the transplant and she would have to pay $300,000 for the transplant. She also alleged that she requested the husband to pay that expense pursuant to paragraph 3(a) of the amended judgment, but the husband failed to do so. She therefore requested the court to find the husband in contempt and order him to pay the $300,000 and her attorney's fees.
In a response, the husband alleged that the wife's first physicians at the University of Miami recommended a liver resection.1 He further alleged that a resection was a reasonable and necessary treatment which Medicare covered and that the uncovered cost would be under $1,000. He further alleged that the wife instead opted to have an experimental liver transplant which Medicare did not deem to be reasonable and necessary and did not cover. He therefore alleged that under the original judgment and the amended judgment, he was not required to pay for the transplant. He requested the court to deny the motion for contempt.
The wife later amended the motion for contempt. She alleged that she had the transplant at the Mayo Clinic and had to pay the clinic $183,030.99. She further alleged that the husband failed to pay that amount. She therefore requested the court to find the husband in contempt and order him to pay the $183,030.99 and her attorney's fees.
The court held a two-day evidentiary hearing on the amended motion for contempt. The wife testified consistent with the amended motion. The wife then presented the testimony of her long-time gastroenterologist. He was the first to recommend that the wife receive a liver transplant. He did not think that her liver was resectable based on his review of her x-rays and other studies. He referred the wife to two University of Miami surgeons. Those surgeons recommended that they first should attempt to perform a resection, and if that was not possible, then they would perform a transplant. The gastroenterologist disagreed with that recommendation and thus referred the wife to the Mayo Clinic. The physicians there recommended that the wife receive a transplant. The wife received the transplant there and has done very well since. According to the gastroenterologist, the survival rate after a resection is twenty to thirty percent, whereas the survival rate after a transplant is eighty percent. He testified that transplants are no longer experimental. He opined that the Medicare guidelines regarding transplants were ten years behind the times and obsolete.
The wife also presented the testimony of the Mayo Clinic surgeon who performed the transplant. He testified that liver transplants with chemotherapy and radiation have been performed since the early 1990s, have better outcomes than other therapies, and gave the wife the best hope of treatment. When he performed the transplant, he confirmed that the wife's liver was not resectable.
The wife also presented the testimony of the Mayo Clinic liver specialist who treated her after the transplant. He disagreed with the University of Miami physicians who recommended resection. He testified that if the wife had undergone resection and then asked for a transplant, she would have been rejected because the resection would have resulted in the release of tumor cells and increased the likelihood of a tumor coming back later. He concluded that the transplant was the wife's most reasonable choice and was necessary for her long-term survival.
The wife also presented the testimony of the Mayo Clinic records custodian for her hospital charges. The records custodian testified that the wife paid the Mayo Clinic $300,000, but then the clinic paid four separate refunds to her, resulting in a final charge of $169,746.82.
The husband then testified. He stated that he has been a physician for thirty years. When he learned that the wife had bile duct cancer, he researched several places which could treat the wife, including the University of Miami, which recommended a resection. He also introduced into evidence the Medicare guidelines, which provide that After performing this research, he did not believe that a transplant was the reasonable course for the wife's condition.
During closing arguments, the wife contended that the court should hold the husband in contempt for not paying for the transplant because the evidence showed that the transplant was reasonable and necessary. The wife further contended that even if the Medicare guidelines were the arbiter of what was reasonable and necessary, then the court still should hold the husband in contempt because paragraph 3(a) of the amended judgment required him to pay for “[a]ll uncovered expenses incurred under the care of a medical professional accepting Medicare assignment.”
In response, the husband contended that even if the amended judgment required payment for “uncovered medical expenses,” case law still required those expenses to be “reasonable and necessary” to justify payment, and according to the husband's evidence, the transplant was not reasonable and necessary. The husband therefore requested the court to deny the motion for contempt.
The court entered a written order granting the motion for contempt. The court found that the wife did not have to prove, and it did not have to determine, that the transplant was reasonable and necessary. The court reasoned that amended judgment's deletion of the phrase “reasonable and necessary” from the original judgment “is a waiver by [the husband] of the right to require all uncovered expenses to be reasonable and necessary.” The court then found...
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