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Neighborhood Health Partnership10/19/2005
Before GERSTEN, GREEN, and FLETCHER, JJ.
This is an appeal from a non-final order granting class certification in a breach of contract action brought by appellee, Kenneth Fischer, M.D. Dr. Fischer purports to represent a class of Florida physicians for whom payment on certain claims for high intensity and costly procedures has either been denied or systematically reduced by appellant, Neighborhood Health Partnership, Inc. (NHP), pursuant to an alleged "downcoding" practice. On this appeal, NHP asserts, among other things, that the trial court's class certification was an abuse of discretion because Dr. Fischer lacked standing to proceed as class representative. We agree and reverse.
Dr. Fischer filed an amended class action complaint against NHP for breach of contract. In this complaint, he sought to proceed as the representative of a putative class comprised of " ll physicians who contracted with NHP . . . and provided medical services in Florida" to any NHP insured from January 2000 until the date of certification "and who submitted any medical 'clean claim' to NHP that was automatically downcoded and/or pended without NHP first performing a clinical medical review of the physician's medical records for that procedure by a qualified medical examiner." According to the breach of contract allegations, " nstead of paying these claims as contracted and agreed, NHP either: (i) "automatically changes the code submitted by the physician to a less costly procedure code, without a clinical review of the physician's medical records"; or (ii) "refuses to pay the claim as submitted and instead 'pends' the claim requests additional medical materials and th denies the claim as submitted without conducting an appropriate medical review." Dr. Fischer further alleged that "NHP has processed many millions of similar physician coded claims and has engaged in similar downcoding practices on a class wide basis." Class certification was sought because the alleged systemic pending and downcoding of the claims by NHP resulted in relatively small losses (e.g. $120 or $150) to each physician on each submitted claim.
Prior to the hearing on the motion for class certification, Dr. Fischer was deposed by NHP and asked point-blank whether he had calculated or itemized his alleged damages. He testified that he had only generally mentally calculated his damages to be $10,000-$15,000. After this deposition was taken, but before the certification hearing, NHP performed an audit on Dr. Fischer's high-intensity claims and supporting medical records submitted for payment for the time period at issue. Based upon this audit, the auditor averred in an affidavit, among other things, that:
1) Dr. Fischer had regularly filed high intensity evaluation and management claims ("E & M claims") to NHP for payment that were unsupported by the medical records submitted.
2) There was no instance in which NHP reimbursed Dr. Fischer for an amount less than that which was supported by the medical records. For every professional service reviewed, NHP reimbursed Dr. Fischer for amounts equal to or higher than that to which he was entitled based on his medical records. For example, for 62 of 71 professional services and medical records reviewed, the level of E/M service coded and submitted to NHP by Dr. Fischer was unsupported by the medical documentation. Therefore, NHP overpaid Dr. Fischer for the 62 services reviewed.
3. In those instances in which Dr. Fischer was requested to and provided additional medical records to support a claim, NHP made additional payments for a higher level of service.
At the hearing on the motion for class certification, NHP submitted the affid
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