UnitedHealthcare Servs., Inc. v. Asprinio
| Decision Date | 27 August 2015 |
| Docket Number | 58353/15 |
| Citation | 49 Misc.3d 985,2015 N.Y. Slip Op. 25298,16 N.Y.S.3d 139 |
| Parties | UNITEDHEALTHCARE SERVICES, INC., Plaintiff, v. David ASPRINIO, M.D., University Orthopaedics, P.C., John Does 1–10 and ABC Corporations 1–10, Defendants. |
| Court | New York Supreme Court |
Connell Foley LLP, By Thomas Vecchio, Esq., Peter J. Pizzi, Esq., James E. Figliozzi, Esq., New York, Attorneys for plaintiff.
Kelley Drye & Warren LLP, By William S. Gyves, Esq. Kelli D. Ortega, Esq., New York, Attorneys for defendants.
Plaintiff UnitedHealthcare Services, Inc. (“Plaintiff” or “ United”), a health insurer, moves for a preliminary injunction to prevent Defendant David Asprinio, M.D. (“Asprinio”) and his medical group, University Orthopaedics, P.C. (“University”), who do not participate in United's provider network, from seeking to collect professional fees from United's members in excess of the payments made by United and from charging United members unlawful, unreasonable or excessive amounts which were not agreed to in advance by the members. Asprinio and University oppose the motion.
As the Court sees it, United essentially asks the Court to compel a health care provider to accept whatever payments for services United is willing to make on behalf of its members, notwithstanding that the health care provider has no contractual relationship with the insurer. Whether United did not want this provider in its network or whether the provider did not want to be in United's network or whether they could not reach acceptable financial terms is not material. What matters is that, absent an applicable statute or a contractual agreement between the insurer and the health care provider, there is no legal basis upon which the Court may properly compel the health care provider to accept whatever payment the health insurer deems appropriate.
From time to time, the Legislature has acted in specific contexts to limit the charges that may be sought by health care providers. It has done so in the Medicare context (see Public Health Law § 19 ), in regard to workers' compensation (see Workers' Compensation Law § 13 ), and with respect to no-fault automobile insurance (see Insurance Law § 5108 ). Most recently, the Legislature has provided for binding arbitration, before a neutral panel, of the charges for emergency services of physicians who do not participate in the patients' network, with the physician being unable to bill the patient for anymore than allowed by the arbitration (see Financial Services Law §§ 603, 605). While this procedure would appear to apply to the dispute that resulted in this litigation, the underlying dispute concerns care provided to a United member in 2014; the statute did not become effective until March 31, 2015.
While United points to the statute as supporting its view that the Courts should impose a ban on balance billing, the statute does not leave the health care provider at the mercy of the insurer; the statute provides for a neutral panel to choose between the insurer's payment or the provider's charge as being the reasonable fee (Financial Services Law § 605). Even more fundamentally, the statute defines a non-participating provider as being a provider “not having a contract with a health care plan to provide health care services to an insured” (Financial Services Law § 603[e] ). Thus, the statute confirms that, absent applicable legislative intervention, the relationship, if there is one, between a health care provider and a health care insurer is founded on contract. Here, there being no applicable statute and no contract, United is not entitled to the relief it seeks.
The relevant facts are largely undisputed.
Asprinio is an orthopedic trauma surgeon who is licensed to practice medicine in New York and Connecticut. He is the Director of Orthopaedic Surgery at Westchester Medical Center; as such, he is responsible for the credentialing and oversight of departmental medical staff. He also holds staff appointments at several other hospitals, including the Hospital for Special Surgery, Stamford Hospital, and Montefiore–New Rochelle Hospital. He is a professor of clinical orthopaedic surgery at New York Medical College, where he also chairs the Department of Orthopaedic Surgery. United is a large and well-known player in the global health insurance industry.
On the afternoon of September 7, 2014, patient “JZ” was transferred from Northern Westchester Medical Center to Westchester Medical Center, at the request of the health care providers at Northern Westchester who referred the patient specifically to Westchester Medical Center and Asprinio so that the patient could receive a more advanced level of care. JZ avers that she was told that there was no available surgeon on duty at Northern Westchester.
JZ arrived at Westchester Medical Center at approximately 3:45 p.m. She was evaluated by various medical personnel. She was over 60 years of age and had a medical history that included a recent diagnosis of a heart rhythm abnormality and a prior right wrist fracture which had healed with deformity. Her immediate condition involved complex injuries to both arms sustained from a fall earlier in the day. Her left arm had sustained a displaced intra articular distal radius fracture, that is her radius was fractured just above her wrist and multiple bond fragments were out of position. Her right arm had both the radius and her ulna broken, with involvement of her previously broken and deformed right wrist.
JZ required immediate surgery to minimize the risk of infection at the open fracture site, to return the fractured bone to underneath the punctured skin, to protect overlying tissues, and to stabilize the fractures in order to control pain. The surgery was anticipated to be complex, requiring the skills of an orthopedic trauma specialist. JZ was given medication to control her pain and antibiotics to minimize infection.
She was taken to surgery at 9:55 p.m. and placed under general anesthesia. Asprinio began an operation that continued until 2:50 a.m. The procedure was complicated and challenging to due to the high number of small bone fragments present around the injuries, the location of the break near the wrist (which did not leave much room for the necessary hardware), and because the amount of hardware required was greater than usual due to the location and nature of the break.
JZ had a successful recovery from her surgery and was discharged from the hospital on September 10, 2014.
JZ's medical coverage was provided via United.1 Despite the fact that JZ's surgery did not commence for about six hours after her arrival at Westchester Medical Center, it appears that no one told JZ that Asprinio was outside of her health insurer's network or whether there was an option to have the surgery done by an in-network provider.2 JZ also claims that she was not given an advance estimate of Asprinio's charges or told that she would be personally responsible for any charges which were not paid by her insurer.3
The Court assumes that JZ executed, in some fashion (given the fractures on each arm), consents to medical treatment and consents to disclose medical information to United because, if she had not signed consents to the procedure, it would most likely have not been performed and, if she had not authorized disclosure of her health information to United, Asprinio and University would not have been able to file claims against her health insurance policy. Of moment, however, these forms are not before the Court. Among other things, this means that the record is silent as to whether Asprinio and University agreed in writing to pursue a claim on JZ's health insurance and, if so, whether such a claim would be exclusive or inclusive of any obligation on JZ's part to pay for her own care. There is nothing before the Court that would indicate that JZ signed a document assigning her right to health insurance benefits for her surgery over to Asprinio and/or University.
In any event, whether as a courtesy to JZ, as part of an agreement with JZ, or just because it was perceived that United had a deeper pocket than JZ, University, on September 23, 2014 billed United $40,100 for Asprinio's services to JZ.
Roughly one month later, United paid $387.10 to University on account of the in-patient consultation that Asprinio provided and $6,793.49 on account of the surgery.
Three days after the receipt of the $6,793.49 payment, University's vendor learned that United had processed University's claim as if Asprinio had been a participating provider and the vendor sought reconsideration. Reconsideration was denied in December 2014. University pursued a formal appeal within United's claims structure and encouraged JZ to appeal as well. Perhaps to add to her incentive to cooperate, University, on January 1, 2015, sent her a bill for the $32,739.41 balance due. On January 24, 2015, United paid University another $4,779.50 but, a few days later, denied the appeal. On February 5, 2015, University sent JZ a bill for the unpaid balance of $27,959.91. However, University has not, at least as yet, commenced an action against JZ. JZ claims that she was told by United that she has no legal responsibility to pay anything further to University/Asprinio.
While United asserts that Asprinio charged “excessive rates” and/or has engaged in unlawful, unreasonable or excessive charges, it has not, in its motion papers, explained how or why it reached its determination to pay $12,292.09 out of a bill of $40,100.00. Dr. Asprinio, of course, believes that his charge is reasonable, though he does not provide any information as to how the charge was computed. However, some light is shed on the matter of Michael J. McLafferty, CPA, whose affidavit was submitted by Defendants. McLafferty is a partner in the Health Care Services Group of EisnerAmper LLC, a national accounting, auditing, and consulting firm and a Fellow in the American College of...
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