Whitley v. Baptist Health et al
Filing
243
ORDER granting 226 Motion and embedded 227 Motion. Responses, 226 -1 and 227 -1 deemed filed. The current class definition 193 at 4 stands - with some clarifications prompted by the recent briefing. The clarified class definition is in Append ix A. Baptist must file the June 18th spreadsheet under seal in digital format, and provide courtesy digital and paper copies to chambers. The September trial is cancelled and the 146 Second Amended Final Scheduling Order is suspended. The motions in limine, 225 , 228 , 230 , 236 , 238 , 240 , and 242 are denied without prejudice as moot. Baptist's deposition-designation objections, 232 are likewise overruled without prejudice as moot. Status report due by 9/18/2020 regarding depositions. Joint proposed claim form due by 9/30/2020. A Third Amended Final Scheduling Order will issue. Signed by Chief Judge D. P. Marshall Jr. on 8/7/2020. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
BRIAN WHITLEY, Individually and
on Behalf of All Others Similarly Situated
v.
PLAINTIFF
No. 4:16-cv-624-DPM
BAPTIST HEALTH; BAPTIST HEALTH
HOSPITALS; DIAMOND RISK
INSURANCE LLC; ADMIRAL
INSURANCE COMPANY; ADMIRAL
INDEMNITY COMPANY; IRONSHORE
INDEMNITY, INC.; and IRONSHORE
SPECIALTY INSURANCE CO.
DEFENDANTS
ORDER
1. Briefs and related papers, Doc. 223, 224 & 225, appreciated.
Motion, Doc. 226, granted; embedded motion, Doc. 227, granted; and
responses, Doc. 226-1 & 227-1, deemed filed.
2. The current class definition, Doc. 193 at 4, stands-with some
clarifications prompted by the recent briefing. None of the changes
compromises all the parties' good work on the class spreadsheets. First,
keeping faith with the provider agreements requires that acceptance is
the criterion, not receipt. Baptist is correct on this; Whitley is mistaken.
Second, Whitley has helpfully clarified exactly which other sources are
in play: third-party motor vehicle accident liability, uninsured motorist
coverage, and underinsured motorist coverage. Doc. 220 at 3-4. The
Court will tweak the definition to make this specification. Third, the
specification of other sources eliminates the need for the vexed
carve-outs list. Whitley has, for example, disclaimed any intention to
seek recovery where payments were made solely by Medicare, and he
has accepted the Court's ruling about PIP and MedPay. Last, what
about mixed circumstances involving payments from a defined other
source plus payments from Medicare or another government source?
The Court confirms its ruling at the June 12th hearing: patients in these
mixed circumstances remain in the class. Doc. 216 at 72-73. This ruling
is not just for notice purposes, as Baptist contends. Rather, the ruling is
on the merits because Baptist's acceptance of money from one of the six
insurers is what triggers liability, which is not eliminated by Baptist's
also having accepted payment from some government source.* The
clarified class definition is in Appendix A.
3. No material facts are in dispute. The Court therefore confirms
its tentative thinking, and rules as a matter of law on liability. Doc. 222
at 1-2; FED. R. CIV. P. 56(£). During the recoupment period, Baptist's
use of liens violated neither the provider agreements nor the ADTPA,
because of the harmonious operation of Arkansas's medical lien,
* My family and I have coverage through the Federal Employees Health
Benefit Plan. I do not believe that we' re members of the class. But, to
remove any doubt, I exclude myself and my immediate family
members. I will file an under-seal notice with names, so the parties can
double check the spreadsheet.
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primary coverage, and recoupment statutes. But Baptist violated the
agreements and the ADTPA when it asserted or persisted in a lien after
the recoupment period, causing a patient to sustain damages. Where
the provider agreements bar third-party beneficiaries, this conduct
would still violate the ADTPA because Arkansas's insurance statutes
and regulations don't specifically permit the conduct. Air Evac EMS,
Inc. v. USAble Mutual Insurance Co., 2017 Ark. 368, *6, 533 S.W.3d 572,
575-76 (2017). Also, Federal Rule of Civil Procedure 23 trumps the
ADTPA's class action prohibition. Shady Grove Orthopedic Associates,
P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010); see Mounce v. CHSPSC,
LLC, 2017 WL 4392048, at *7 & n.4 (W.D. Ark. 29 September 2017).
Baptist argues about missing factual support, despite saying, at the
June 12th hearing, "[i]f there's time left for recoupment ... we aren't
arguing to wait even longer for the recoupment." Doc. 216 at 66. In any
event, potential class members will have to document damages. If there
was no delay damage or payment damage, then the patient will drop
out and recover nothing.
4. The list for notice will be Baptist's alternative class list
provided on June 18th using Column BA, Doc. 219 at 9, with one
exception. Baptist no longer needs to include the one hundred and
twenty-five encounters discussed during the June 12th hearing- the
encounters added by using the first transaction date across all
encounters for a given patient. Doc. 216 at 20-23. Baptist must file the
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June 18th spreadsheet under seal in digital format, and provide
courtesy digital and paper copies to chambers.
5. Notice needs to go out.
Whitley must update the class
definition by incorporating the Court's earlier edits, Doc. 148 at 3-7, and
the ones directed by this Order.
He must replace the paragraph
beginning, "This notice is not ... ", Doc. 148 at 4, with: "The Court has
ruled that Baptist had a statutory right to seek payment using hospital
liens, but only for a limited period. You may or may not be entitled to
get some money. To show whether you were damaged or not, you will
need to submit a claim form, which you will receive in due course. This
notice is sent to advise you of the pendency of this action and your
rights with respect to it." After making these changes, Whitley must
send notice as soon as practicable and no later than 31 August 2020.
He must also promptly report when he has done so.
6. The September trial is canceled. The Second Amended Final
Scheduling Order, Doc. 146, is suspended.
The motions in limine,
Doc. 225 at 8-18, Doc. 228, Doc. 230, Doc. 236, Doc. 238, Doc. 240 &
Doc. 242,
are
denied without
prejudice
as
moot.
Baptist's
deposition-designation objections, Doc. 232, are likewise overruled
without prejudice as moot.
7. As soon as practicable after notice goes out, Whitley and
Baptist must decide whom to depose about payment damages.
Doc. 189 at
,r
3.
Status report due by 18 September 2020.
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Those
depositions need to happen sooner rather than later. The claim form,
which the Court must approve, should encompass both delay damages
and payment damages.
Joint proposed claim form due by
30 September 2020. A Third Amended Final Scheduling Order will
issue.
So Ordered.
D .P. Marshall Jr.
United States District Judge
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Appendix A
Here is the revised class definition which reflects all the Court's
rulings as of 7 August 2020:
All Arkansas residents who, since 30 July 2011,
received any type of healthcare treatment from any
Arkansas entity owned, controlled, or managed by
Baptist Health or Baptist Health Hospitals; (i) the
treatment was covered by valid, in network, health
coverage that was underwritten, administered, or
supported by (a) QualChoice of Arkansas, (b) Health
Advantage, (c) Blue Cross Blue Shield, (d) Humana,
(e) Aetna, or (f) UnitedHealthcare;
(ii) Baptist
submitted the charges for the treatment to the patient's
health insurer for payment; (iii) Baptist accepted
payment from the health insurer for the treatment;
(iv) Baptist (itself or through its agents) sought
payment for the treatment from sources other than the
health insurer (defined only as third-party motor
vehicle accident liability, uninsured motorist coverage,
or underinsured motorist coverage) by maintaining or
asserting hospital lien(s) for the treatment after
accepting payment from the health insurer; and (v) the
individual sustained damages. Covered liens include
only those for amounts exceeding copayments,
deductibles, coinsurance, and services not covered by
the health insurance plan.
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