Merkle v. Health Options, Inc.

• Decision Date: 18 October 2006
• Docket Number: No. 4D05-4553.,No. 4D05-4555.,No. 4D05-4554.,No. 4D05-4552.,4D05-4552.,4D05-4553.,4D05-4554.,4D05-4555.
• Citation: 940 So.2d 1190
• Parties: Peter F. MERKLE, M.D., P.A., on behalf of itself and all others similarly situated, Appellants, v. HEALTH OPTIONS, INC., Aetna Health, Inc., Vista Healthplan, Inc., and Neighborhood Health Partnership, Inc., Appellees.
• Court: Florida District Court of Appeals

940 So.2d 1190

Peter F. MERKLE, M.D., P.A., on behalf of itself and all others similarly situated, Appellants, v.HEALTH OPTIONS, INC., Aetna Health, Inc., Vista Healthplan, Inc., and Neighborhood Health Partnership, Inc., Appellees.

No. 4D05-4552.

No. 4D05-4553.

No. 4D05-4554.

No. 4D05-4555.

District Court of Appeal of Florida, Fourth District.

October 18, 2006.

Rehearing Denied November 20, 2006.

COPYRIGHT MATERIAL OMITTED

Paul J. Geller, Stuart A. Davidson, Marisa N. DeMato and Nicole R. Avallone of Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton, Sanford Svetcov of Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, San Francisco, California, Eric Lee of Lee & Amtzis, P.L., Boca Raton, Lawrence Kopelman and Douglas Blankman of Kopelman & Blankman, P.A., Fort Lauderdale, and Patrick W. Lawlor of Patrick Lawlor, P.A., Fort Lauderdale, for appellants.

Stephanie Alexander and Edward J. Pozzuoli of Tripp Scott, P.A., Fort Lauderdale, for Amici Curiae Florida Hospital Association, Florida College of Emergency Physicians, Florida Medical Association, the American Medical Association, the American College of Emergency Physicians, and the Florida Orthopaedic Society.

Steven R. Weinstein and William J. Spratt, Jr., of Kirkpatrick & Lockhart Nicholson Graham, LLP, Miami, for Amici Curiae The Florida Society of Pathologists and The American Pathology Foundation.

Miguel A. Estrada and Geoffrey M. Sigler of Gibson, Dunn & Crutcher, LLP, Washington, D.C., and Michael Keith Winston of Carlton Fields, P.A., West Palm Beach, for appelleeAetna Health, Inc.

W. Edward McIntyre and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A. Fort Lauderdale, Scott Jared Fisher of Neal, Gerber & Eisenberg, LLP, Chicago, IL, Eileen M. Considine of Gardner Carton & Douglas, LLP, Albany, NY, and David S. Almeida of Gardner Carton & Douglas, LLP, Chicago, IL, for appelleeNeighborhood Health Partnership, Inc.

Steven M. Ziegler and Andres Gonzalez of Law Offices of Steven M. Ziegler, P.A., Hollywood, for appelleeVista Healthplan, Inc.

Steven E. Siff, Justin B. Uhlemann and Michael G. Austin of McDermott, Will & Emery, LLP, Miami, for appelleeHealth Options, Inc.

HAZOURI, J.

Peter F. Merkle, M.D., P.A.(Merkle) filed four class action complaints against Health Options, Inc., Vista Healthplan, Inc., Neighborhood Health Partnership, Inc., and Aetna Health, Inc., individually (collectively referred to as the "HMOs").Merkle is a professional association providing emergency orthopaedic services, as a non-participating provider, to patients insured by the HMOs.Merkle raised four claims in each complaint: (1) violations of section 641.513(5), Florida Statutes(2003), (2) unjust enrichment and quantum meruit, (3) account stated, and (4) declaratory and injunctive relief.Merkle appeals from orders dismissing, with prejudice, each of its four complaints.¹We affirm the trial court's dismissal of Merkle's account stated claims, but reverse the trial court's dismissal of the remaining claims.

Emergency service providers like Merkle are required to care for HMO subscribers regardless of whether the provider participates in the HMO's health plan.See§ 641.513(2), Fla. Stat.(2003).However, section 641.513(5), Florida Statutes(2003), dictates how an HMO must reimburse these non-participating providers.The statute mandates that:

Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of:

(a) The provider's charges;

(b) The usual and customary provider charges for similar services in the community where the services were provided; or

(c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim.

Such reimbursement shall be net of any applicable copayment authorized pursuant to subsection (4).

§ 641.513(5), Fla. Stat.(2003).Specifically, Merkle claimed that beginning in 2003, the HMOs violated section 641.513(5) by paying class members "artificially reduced payment amounts" equal to 120% of the Medicare reimbursement schedule, rather than the usual and customary provider charges.

The HMOs filed four separate motions to dismiss Merkle's complaints.Collectively, they argued the following:

1.Merkle's claims under section 641.513(5) and for declaratory relief fail to state a cause of action because section 641.513(5) does not authorize a private cause of action for its violation.Thus, Merkle must assert his claims through an alternative dispute resolution process provided for in section 408.7057, Florida Statutes.

2.Merkle's unjust enrichment/quantum meruit claim fails to state a cause of action because it does not allege any ultimate facts to show that Merkle conferred a benefit on the HMOs, or that the HMOs voluntarily and knowingly accepted any benefit from Merkle.

3.Merkle's claim for account stated fails to state a cause of action because the parties never agreed on the amount the HMOs would pay Merkle.

4.Merkle's request for declaratory relief is a request for an impermissible advisory opinion because section 641.513(5) does not authorize a private cause of action.

The trial court held a consolidated hearing on the motions to dismiss, and entered four virtually identical orders granting the motions to dismiss, with prejudice, and entering final judgment in favor of the HMOs on all claims.The trial court concluded that:

1.No private right of action exists under section 641.513(5).

2.Merkle's complaints failed to state a cause of action for unjust enrichment/quantum meruit because the HMOs received no benefit from Merkle.

3.The dismissal of Merkle's unjust enrichment claim did not violate his fundamental right of access to the courts because any final agency order would be subject to appellate review.

4.Merkle's claims for account stated failed to state a cause of action because the Explanation of Benefits attached to Merkle's complaints showed that the HMOs did not agree to pay Merkle's billed charges.

5.Granting Merkle leave to amend would be futile.

"In reviewing a motion to dismiss, a trial court is limited to the four corners of the complaint, and it must accept all the allegations in the complaint as true."Royal & Sunalliance v. Lauderdale Marine Ctr.,877 So.2d 843, 845(Fla. 4th DCA2004)(citingTaylor v. City of Riviera Beach,801 So.2d 259, 262(Fla. 4th DCA2001))."`Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review.'"Royal & Sunalliance,877 So.2d at 845(quotingBell v. Indian River Mem'l Hosp.,778 So.2d 1030, 1032(Fla. 4th DCA2001)).

Merkle argues first that the trial court erred in finding that section 641.513(5) does not imply a private right of action.We agree.Merkle relies on the recent Fifth District decision in Adventist Health System/Sunbelt, Inc. v. Blue Cross & Blue Shield,934 So.2d 602(Fla. 5th DCA2006).

Adventist Health is directly analogous to the instant case.In Adventist Health, a hospital providing emergency treatment to HMO subscribers brought a declaratory judgment complaint against the HMO seeking an interpretation of section 641.513(5).934 So.2d at 603.The HMO argued that it was obligated only to pay an amount equal to 120% of Medicare reimbursement rates.Id.The hospital argued that section 641.513(5) required the HMO to pay the "`usual and customary provider charges for similar services in the community.'"Adventist Health,934 So.2d at 603.The appellate court recognized the distinction set forth in Murthy v. N. Sinha Corp.,644 So.2d 983(Fla.1994), between statutes that "purport to establish civil liability" and statutes that "merely [make] provision to secure the safety or welfare of the public as an entity."Adventist Health,934 So.2d at 604(quotingMurthy,644 So.2d at 986).The court recognized that "`[i]n general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing civil liability.'"Id.The court concluded that:

[Section 641.513(5)] ... does establish civil liability.This the litigants acknowledge.The dispute here is not whether liability is imposed by the statute, but the methodology for use in establishing the amount of that liability and the applicable enforcement remedy.Under these circumstances, a private right of action may be implied.

Adventist Health,934 So.2d at 604(citingMurthy,644 So.2d at 986)(footnotes omitted).

In reaching this conclusion, the court in Adventist Health distinguished three cases that the HMOs in the present case rely on: Villazon v. Prudential Health Care Plan, Inc.,843 So.2d 842(Fla.2003);Fla. Physicians Union, Inc. v. United Healthcare of Fla., Inc.,837 So.2d 1133(Fla. 5th DCA2003);andGreene v. Well Care HMO, Inc.,778 So.2d 1037(Fla. 4th DCA2001).In Villazon, the personal representative of an HMO subscriber brought a wrongful death action based on negligence against the subscriber's doctor and HMO.843 So.2d at 844.The personal representative claimed that the HMO "`assumed a non-delegable duty to render medical care to his wife in a non-negligent manner when she purchased health care coverage from [the HMO].'"Id. at 852(quotingVillazon v. Prudential Health Care Plan, Inc.,794 So.2d 625, 628(Fla. 3d DCA2001)).The personal representative claimed that the nondelegable duty arose under the Health Maintenance Organization Act ("HMO Act"), sections 641.17-641.3923, Florida Statutes(2000).Villazon,843 So.2d at 852.The Supreme Court of Florida concluded that a private right of action could not be implied under the HMO Act absent an expression of legislative intent to do so.Id.(citingMurthy,644 So.2d at 986).The...