Michigan Court of Appeals; Docket #356082; Unpublished
Judges Letica, Kelly, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Michigan Ambulatory Surgical Center’s (“MASC”) first-party action against Defendant Liberty Mutual Insurance Company (“Liberty Mutual”). The Court of Appeals held that MASC failed to present sufficient evidence to rebut Liberty Mutual’s argument that MASC double-billed for certain of its services.
Bernard Shaw injured his shoulder in a motor vehicle accident and underwent at least one surgical repair at MASC. After the surgery and Shaw’s execution of an assignment in favor of MASC, MASC billed Liberty Mutual for a total of $82,700. Liberty Mutual paid only $33,297.50, arguing that at least two of the CPT codes related to the surgery Shaw received were duplicative of other CPT codes for which it paid:
“Specifically, plaintiff billed for two procedures that describe the surgical arthroscopy and repair of the shoulder ‘SLAP lesion’ (CPT code 29806) and the surgical repair of a ruptured ‘rotator cuff’ (CPT code 23410), and then ‘unbundled’ the procedures and billed separately for arthroscopy (CPT code 29807) and arthroscopy with decompression of the subacromial space (CPT code 29826) of the same shoulder.”
Based on what it characterized as MASC’s ‘double billing,’ Liberty Mutual moved for summary disposition in MASC’s subsequent first-party action against it. During the hearing on Liberty Mutual’s motion, MASC presented an affidavit from its biller, Janice Biederman, who averred that the above CPT codes could all be billed together under certain circumstances and depending on the particulars of the surgery. She further averred that she reviewed the surgical report and concluded that such circumstances were met, thereby justifying the billing. The trial court ultimately concluded that Biederman’s affidavit, alone, was not sufficient to create a genuine issue of material fact as to whether MASC double-billed and granted Liberty Mutual’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that Biederman’s affidavit, alone, was insufficient to create a question of fact as to whether certain of MASC’s bills were duplicative of other it submitted related for Shaw’s surgery. Biederman did not identify in her affidavit the specific elements of the procedure which warranted exceptional billing, nor was Biederman a physician, capable of concluding based on the surgery report whether the particulars of the surgery warranted exceptional billing—especially considering that it was not “readily apparent” from the report whether the surgery even featured the particular circumstances Biederman claimed were required to bill for all four aforementioned CPT codes. Furthermore, the Court noted that MASC conceded during the hearing that it would need to present both its biller and surgeon to support its claims at trial, but in response to Liberty Mutual’s motion, MASC provided only the testimony of Biederman.
“Defendant presented documentary evidence in the form of the EORs that showed the amounts charged and explained that the two disputed CPT codes were not paid because the value of their services was included in two other CPT codes that were approved and paid. In Biederman’s affidavit, she explained that the two disputed CPT codes, 29807 and 29826, could not be properly billed together with CPT codes 29806 and 23410 unless specific conditions were met. With respect to the dual-billing of codes 29806 and 29807, Biederman testified in conclusory fashion that the surgeon’s operative report supported such billing, but she did not identify which of the two prerequisite kinds of SLAP repair was performed, or indeed if either of them were performed. Moreover, because Biederman is not a physician, and was not present during the procedure, the source of her conclusion was the surgeon’s report, and it is not readily apparent from that report whether the prerequisite procedures were performed to support plaintiff’s billing choices. Similarly, Biederman cited her alleged interpretation of the surgical report as supporting the dual-billing of codes 23410 and 29826, but the report does not indicate that the prerequisite procedures were performed in the required manner or sequence. Biederman also cited as bases for her conclusion inadmissible hearsay.
In addition, plaintiff conceded to the trial court that it would be necessary to present the testimony of both its biller and its surgeon to support its claims at trial. However, in response to defendant’s motion, plaintiff provided evidence from only one of those two sources. In other words, plaintiff failed to present to the trial court any medical testimony supporting its conclusion that the charges for the procedures were reasonable. See Bronson Hosp v Auto-Owners Inc, 295 Mich App at 450. Nonmoving parties may not simply promise to present necessary evidence in the future to survive summary disposition, but rather must present it in response to the motion. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999) (‘A litigant’s mere pledge to establish an issue of fact at trial cannot survive summary disposition under MCR 2.116(C)(10). The court rule plainly requires the adverse party to set forth specific facts at the time of the motion showing a genuine issue for trial.’). Thus, plaintiff failed to raise a genuine issue of material fact as to whether the disputed charges were reasonable, and the trial court did not err when it granted defendant’s motion for summary disposition.”