Merkle v. Health Options, Inc.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2006
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.
Nos. 4D05-4552, 4D05-4553, 4D05-4554 & 4D05-4555
[ October 18, 2006 ]
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.1 We 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:
1 These four cases were consolidated for the purposes of appeal.
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
the health
to by
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
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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 DCA 2004) (citing Taylor v. City of Riviera
Beach, 801 So. 2d 259, 262 (Fla. 4th DCA 2001)). “‘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 (quoting Bell v. Indian River Mem’l
Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001)).
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
in Adventist Health
relies on the recent Fifth District decision
System/Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So. 2d 602 (Fla.
5th DCA 2006).
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
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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 (quoting Murthy, 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 (citing Murthy, 644 So. 2d at 986)
(footnotes omitted).
in Adventist Health
the court
this conclusion,
In reaching
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 DCA 2003); and Greene v. Well Care HMO, Inc., 778 So. 2d
1037 (Fla. 4th DCA 2001). 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
(quoting Villazon v. Prudential Health Care Plan, Inc., 794 So. 2d 625, 628
(Fla. 3d DCA 2001)). 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. (citing Murthy, 644
So. 2d at 986). The supreme court distinguished the HMO Act from acts
like the nursing home statute, where the legislature expressly recognized
a right of nursing home residents to receive adequate health care and a
corresponding private right of action for deprivation of the residents’
rights. Villazon, 843 So. 2d at 852 (citing § 400.022(1)(l), Fla. Stat.
(1997); § 400.023(1), Fla. Stat. (1997)). The supreme court refused to
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imply a private cause of action where the legislature did not specifically
provide for one.
In Florida Physicians, an organization representing medical care
providers filed suit against an HMO seeking a declaration that the HMO
violated section 641.3903, Florida Statutes, by engaging in various
payment methods. Florida Physicians, 837 So. 2d at 1134. The trial
court dismissed the action, ruling that section 641.3903 did not provide
a private cause of action. Id. at 1134-35. The appellate court agreed,
concluding that the action merely sought an advisory opinion because
the statute did not “expressly or impliedly [authorize] a private suit
brought for purposes of enforcing or declaring violations of the statute.”
Id. at 1137.
In Greene, an HMO subscriber alleged that the HMO’s “failure to
honor her claim for benefits constituted bad faith handling of a claim and
unfair trade practice in violation of sections 641.3901-.3905 and
624.155, Florida Statutes (1997).” 778 So. 2d at 1039. The HMO
subscriber in Greene argued that the trial court erred when it found that
the HMO Act did not authorize a private cause of action. Id. at 1039.
This court disagreed and declined to imply a bad faith or unfair trade
practice cause of action in the HMO Act. Id. at 1040. Instead, this court
directed that the HMO subscriber could pursue breach of contract and
tort law claims against the HMO based on common law principles. Id. at
1041-42.
In Adventist Health, the appellate court found the holdings in Villazon,
Florida Physicians and Greene inapplicable to section 641.513(5).
Adventist Health, 934 So. 2d at 604. In Adventist Health, the appellate
court concluded:
We think Florida Physicians is distinguishable. The statute
at issue there did not purport to establish civil liability.
Rather, it merely made provision for the safety and welfare of
the public by declaring certain business practices by HMOs
to be unfair and deceptive and empowering the Department
of Insurance to investigate and punish offenders.
Adventist Health, 934 So. 2d at 604 (citing Murthy, 644 So. 2d at 986).
The appellate court went on to note that Villazon and Greene were
similarly distinguishable. Adventist Health, 934 So. 2d at 604 n.3.
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As recognized in Adventist Health, the cases of Villazon, Florida
Physicians and Greene are distinguishable from the instant case. First,
Villazon, Florida Physicians and Greene are specifically limited to
provisions
Section
in the HMO Act, sections 641.17-641.3923.
641.513(5), at issue in this case, is not part of the HMO Act. Rather, it is
included within part III of Chapter 641. Second, unlike 641.513(5), each
of the statutory provisions at issue in Villazon, Florida Physicians and
Greene were aimed specifically at protecting the public as an entity; i.e.:
preventing negligence, unfair and deceptive trade practices and bad faith.
Section 641.513(5) is aimed at protecting non-participating providers
who must provide emergency medical services to HMO subscribers,
ensuring they are compensated fairly. The question is not whether the
HMOs are liable under section 641.513(5), but rather what is the
appropriate method for determining the extent of that liability. Adventist
Health, 934 So. 2d at 604.
Not only is the instant case distinguishable from Villazon, Florida
Physicians and Greene, but it is well-settled in Florida that “[i]t must be
assumed that a provision enacted by the legislature is intended to have
some useful purpose.” Smith v. Piezo Tech. & Prof’l Adm’rs, 427 So. 2d
182, 184 (Fla. 1983) (citing Girard Trust Co. v. Tampashores Dev. Co.,
117 So. 786 (Fla. 1928)). In Smith, the Supreme Court of Florida implied
a statutory cause of action for the wrongful discharge of employees who
sought workers’ compensation benefits. 427 So. 2d at 183-84. The
supreme court acknowledged that “because the legislature enacted a
statute that clearly imposes a duty and because the intent of the section
is to preclude retaliatory discharge, the statute confers by implication
every particular power necessary to insure the performance of that duty.”
Id. at 184 (citing Mitchell v. Maxwell, 2 Fla. 594 (1849)). Section
641.513(5) clearly imposes a duty on HMOs to reimburse non-
participating providers according to the statute’s dictates, not based on
Medicare reimbursement rates. The intent of the section is to ensure
that the non-participating providers are adequately paid for a service
they are required by law to perform. See § 641.513(2), Fla. Stat. (2003)
(“[p]rehospital and hospital-based trauma services and emergency
services and care must be provided to a subscriber of a health
maintenance organization as required under ss. 395.1041, 395.4045,
and 401.45”).
The HMOs contend also that this court’s decision in Plantation
General Hospital Ltd. Partnership v. Horowitz, 895 So. 2d 484 (Fla. 4th
DCA 2005), rev. granted, 924 So. 2d 808 (Fla. 2006), supports their
argument that no private right of action may be implied in this case.
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There, the plaintiff, who held an unsatisfied medical malpractice
judgment against an uninsured physician, sought recovery under section
458.320, Florida Statutes (2004), from the hospital which granted staff
privileges to the physician. Horowitz, 895 So. 2d at 485-86. Section
458.320 in part requires licensed physicians to establish financial
responsibility to satisfy malpractice judgments by specified methods.
This court concluded in Horowitz that:
We are unable to find any indication anywhere in the entire
statutory scheme that a money damages remedy against a
hospital is within any legislative purpose discernible from
the text adopted. From the statute itself, we are unable to
find any legal justification for any kind of money damages
remedy against the hospital under any theory.
895 So. 2d at 488. Thus, a court may imply a private cause of action
only where the statutory scheme and statute itself indicate a legislative
purpose to do so. Id. at 487-88.
Horowitz is inapposite to this case. Unlike Horowitz, this is not a case
where we are unable to find any justification in the statutory scheme or
text for any kind of money damages remedy against the HMOs under any
theory. Parties have “the right to maintain a private cause of action as
the persons the legislature intended to protect by the enactment” of a
particular statute. Moyant v. Beattie, 561 So. 2d 1319, 1320 (Fla. 4th
DCA 1990). In enacting 641.513(5), the legislature intended to protect
not only subscribers, but also non-participating providers. As the amici
curiae2 supporting Merkle’s position point out, the terms of section
641.513(5) are obligatory (“shall”). Further, legislative history confirms
that
the
legislature
intended non-participating providers
to be
reimbursed in accordance with the statute. See Fla. H.R. Comm. on
Health Care, CS for HB 979 (1996) Bill Analysis 4 (May 14, 1996) (on file
with comm.) (indicating that the legislature intended “that subscribers
will receive needed services for which hospitals and emergency room
physicians will receive reimbursement”).
2 Two amici curiae briefs were filed in this case on behalf of Merkle’s position.
The first brief was filed by the 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. The second brief was filed by the Florida Society of
Pathologists and the American Pathology Foundation.
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The HMOs argue further that the only avenues for vindication of
Merkle’s rights under section 641.513(5) are either (1) filing a claim
under ERISA, the federal Employee Retirement Income Security Act, or
(2) participating in the alternative dispute resolution process established
in section 408.7057, Florida Statutes. We decline to address ERISA’s
applicability to this case, as the issue was not discussed or raised below,
and we disagree with the HMOs’ contention that dispute resolution
under section 408.7057 is mandatory. Section 408.7057(2)(a), Florida
Statutes (2005), provides in pertinent part, that:
[T]he [Florida Agency for Health Care Administration (AHCA)]
shall establish a program by January 1, 2001, to provide
assistance to contracted and noncontracted providers and
health plans for resolution of claim disputes that are not
resolved by the provider and the health plan. The agency
shall contract with a resolution organization to timely review
and consider claim disputes submitted by providers and
health plans and recommend to the agency an appropriate
resolution of those disputes.
There is no indication in section 408.7057 that the dispute resolution
process is mandatory. In Adventist Health, the court noted the following:
We disagree that anything in the language of the statute
manifests an intent by the Legislature to confer upon [AHCA]
exclusive jurisdiction to resolve this dispute, nor do we agree
that the statutory, voluntary dispute resolution process
established pursuant to section 408.7057, Florida Statutes
(2005), must first be exhausted. Although not determinative,
it is noteworthy that the AHCA responded to a complaint
made by Florida Hospital involving the instant dispute by
stating that it “‘does not have specific rule making authority
to determine what specific payment amounts would comply
with Section 641.513(5)(b), Florida Statutes. . . .’” Instead,
the AHCA directed the parties to bring this issue before a
‘court of competent jurisdiction or the provider dispute
resolution program as outlined in section 408.7057.’
934 So. 2d at 604 n.2; see also Found. Health v. Garcia-Rivera, M.D., 814
So. 2d 537, 538 (Fla. 3d DCA 2002) (finding that class action proceedings
may be appropriate despite arbitration provisions in agreements between
providers and HMOs). Thus, while the dispute resolution process under
section 408.7057 may provide an adequate review of a non-participating
– 8 –
provider’s claims under section 641.513(5),3 it is not the only avenue of
review.4
Thus, we find that the trial court erred in concluding that section
641.513(5) does not imply a private cause of action.
Merkle’s next argument on appeal is that the trial court erred in
failing to grant it leave to amend its complaints to assert a third-party
beneficiary claim under Westside EKG Associates v. Foundation Health,
932 So. 2d 214 (Fla. 4th DCA), rev. granted, 917 So. 2d 193 (Fla. 2005).
We disagree. “Failure to seek leave of court or written consent of [the]
adverse party to amend [a] complaint prior to dismissal with prejudice
and failure to then move for a rehearing requesting leave to amend,
precludes raising [the] issue for [the] first time on appeal.” Johnson v.
RCA Corp., 395 So. 2d 1262, 1263 (Fla. 3d DCA 1981); see also Century
21 Admiral’s Port, Inc. v. Walker, 471 So. 2d 544, 544 (Fla. 3d DCA
1985); Hohenberg v. Kirstein, III, 349 So. 2d 765, 766-67 (Fla. 3d DCA
1977). The record reveals that Merkle was aware of Westside’s holding
before the trial court dismissed its claims, but failed to seek leave of
court or consent of the HMOs to amend its complaints. Further, Merkle
never sought leave to amend by moving for a rehearing. Accordingly,
Merkle may not be heard for the first time on appeal regarding its right to
amend its complaint to add a third-party beneficiary claim.
Merkle claims also that the trial court erred in dismissing its unjust
enrichment claims on the basis that Merkle conferred no benefit on the
HMOs. We agree. In Hillman Construction Corp. v. Wainer, 636 So. 2d
576 (Fla. 4th DCA 1994), this court explained:
The elements of a cause of action for unjust enrichment are:
(1) plaintiff has conferred a benefit on the defendant, who
3 The HMOs argue correctly that the dispute resolution process results in final
agency orders that may be appealed to the district courts of appeal, and that
AHCA can order HMOs to make additional payments to providers on disputed
claims submitted to the dispute resolution program. See § 408.7057, Fla. Stat.
(2005); § 120.68(1), Fla. Stat. (2005); Fla. Admin. Code R. 59A-12.030(3)(4)
(2006); Fla. R. App. P. 9.030.
4 Merkle argues also that the dispute resolution process cannot be the exclusive
remedy because the enabling statute, section 408.7057, was passed years after
section 641.513(5). Before the availability of the dispute resolution process,
then, AHCA could presumably only levy fines and impose administrative
sanctions, but not order appropriate reimbursement. A legal action would have
been necessary.
– 9 –
has knowledge thereof; (2) defendant voluntarily accepts and
retains the benefit conferred; and (3) the circumstances are
such that it would be inequitable for the defendant to retain
the benefit without paying the value thereof to the plaintiff.
Id. at 577 (citing Henry M. Butler, Inc. v. Trizec Props., Inc., 524 So. 2d
710 (Fla. 2d DCA 1988)). This court went on to state that “[c]omplaints
should not be dismissed for failure to state a cause of action unless the
movant can establish beyond any doubt that the claimant could prove no
set of facts whatever in support of his claim.” Hillman Constr. Corp., 636
So. 2d at 578 (citing Martin v. Highway Equip. Supply Co., 172 So. 2d
246 (Fla. 2d DCA 1965)). In reviewing the dismissal of a claim, the
appellate court “do[es] not consider the ultimate merits of [a party’s]
claim, but merely whether [the party] can plead it.” Greenfield v. Manor
Care, Inc., 705 So. 2d 926, 931 (Fla. 4th DCA 1997) (citing Hillman
Constr. Corp., 636 So. 2d at 577), overruled on other grounds, Beverly
Enters.-Fla., Inc. v. Knowles, 766 So. 2d 335 (Fla. 4th DCA 2000).
In the instant case, the trial court found, as a matter of law, that “any
benefit from services rendered by Merkle flowed to emergency room
patients, not [the HMOs].” However, as Merkle argues, this conclusion
defies the dictates of Hillman and Greenfield. The trial court should not
have considered the ultimate merits of Merkle’s unjust enrichment claim
at the motion to dismiss stage. Merkle alleged facts sufficient to support
its argument that Merkle’s treatment of the subscribers conferred a
benefit on the HMOs. The complaints also alleged the elements of an
unjust enrichment/quantum meruit claim.
Merkle’s next argument on appeal is that the trial court erred in
dismissing Merkle’s account stated claims. We disagree. “For an
account stated to exist, there must be agreement between the parties
that a certain balance is correct and due and an express or implicit
promise to pay this balance.” Carpenter Contractors of Am., Inc. v.
Fastener Corp. of Am., Inc., 611 So. 2d 564, 565 (Fla. 4th DCA 1992)
(citing Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286
(Fla. 3d DCA 1981)). Merkle contends that sections 641.513(2) and
641.513(5) create an implied agreement between Merkle and the HMOs
as to the balance owed by the HMOs. However, this argument is
tenuous, at best. Merkle’s entire lawsuit is premised on the HMOs’
failure to pay according to their statutory obligations, which compels the
conclusion that there is no agreement between Merkle and the HMOs as
to the balance that is due and owing. As the HMOs argue, the
Explanation of Benefits attached to each of Merkle’s complaints
– 10 –
illustrates that the parties have failed to reach an agreement on what
amount is owed to Merkle in these cases. “‘If an exhibit facially negates
the cause of action asserted, the document attached as an exhibit
controls and must be considered in determining a motion to dismiss.’”
Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018, 1020 (Fla. 4th
DCA 2005) (quoting Fladell v. Palm Beach County Canvassing Bd., 772
So. 2d 1240, 1242 (Fla. 2000)). Accordingly, the trial court did not err in
dismissing Merkle’s account stated claims.
Merkle’s last argument is that the trial court erred in dismissing its
claim for declaratory relief pursuant to section 86.021, Florida Statutes
(2005), to clarify its rights, and those of the putative class, under section
641.513(5). In Adventist Health, the court reversed the trial court’s
dismissal of a provider’s declaratory judgment complaint seeking an
interpretation of section 641.513(5)(b). Adventist Health, 934 So. 2d at
604. The court concluded:
Because a civil remedy exists, whether arising from statute
or common law, a request for declaratory relief is authorized
because an actual dispute, not merely a hypothetical one,
exists between the parties.
Here, the request for a declaration falls squarely within
the plain language of the declaratory judgment statute. The
request involves an actual controversy between two parties
who have an ongoing dispute concerning the meaning of the
statute. Unquestionably, the parties’ transactions are
governed by
the statute.
The request
for
judicial
construction of the statute, therefore, is proper.
Id. Because we agree with the court’s reasoning in Adventist Health, we
conclude that the trial court erred in dismissing Merkle’s claims for
declaratory relief.
We affirm the trial court’s dismissal of Merkle’s account stated claims,
but reverse the trial court’s dismissal of Merkle’s remaining claims and
remand for further proceedings.
Affirmed in Part, Reversed in Part, and Remanded.
SHAHOOD, J., concurs.
STONE, J., concurs in part and dissents in part with opinion.
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STONE, J., concurring in part and dissenting in part.
As to dismissal of the count for unjust enrichment, I would affirm. In
all other respects, I concur fully with the opinion.
* * *
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Jonathan D. Gerber, Judge; L.T. Case Nos.
502005CA004514XXXXMB,
502005CA004454XXXXMB,
502005CA004511XXXXMB & 502005CA004516XXXXMB.
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 Othopaedic 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 appellee Aetna 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 appellee
Neighborhood Health Partnership, Inc.
Steven M. Ziegler and Andres Gonzalez of Law Offices of Steven M.
Ziegler, P.A., Hollywood, for appellee Vista Healthplan, Inc.
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Steven E. Siff, Justin B. Uhlemann and Michael G. Austin of
McDermott, Will & Emery, LLP, Miami, for appellee Health Options, Inc.
Not final until disposition of timely filed motion for rehearing.
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