297 A.3d 404
Pa. Super. Ct.2023Background:
- Turnpaugh Chiropractic treated Cynthia Zimmerman after a 2015 car accident; Zimmerman was insured by Erie with $50,000 in first‑party medical benefits.
- Erie repriced and paid reduced amounts on many pre‑August 31, 2017 invoices and, in August 2017, submitted continued treatment to a PRO, which found post‑Aug. 31, 2017 chiropractic care not reasonable or necessary.
- Provider sued claiming (1) Erie improperly repriced/prepaid earlier invoices (Act 6/Medicare repricing) and (2) Erie improperly denied post‑Aug. 31, 2017 treatment; Provider sought attorneys’ fees under various MVFRL provisions.
- Trial court found for Provider on both claims, awarded recovery for both pre‑ and post‑Aug. 31, 2017 invoices, and awarded attorneys’ fees under 75 Pa.C.S. §§ 1716 and 1798(b).
- On appeal, the Superior Court: (a) vacated the pre‑Aug. 31, 2017 award and remanded for a new trial on the repricing claim because Provider’s expert testified beyond his pretrial report; (b) affirmed the judgment that post‑Aug. 31, 2017 treatment was reasonable but vacated the award of attorneys’ fees relating to those invoices.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Provider’s repricing claim required expert proof and whether denial of summary judgment preserved | Provider: expert not required; treating doctor could prove correct coding/billing | Erie: Provider failed to disclose an expert report on billing, so claim legally insufficient | Denial of summary judgment was moot after trial; appellate court ordered new trial on repricing because Provider’s expert later testified beyond his report (unfair surprise) |
| Whether trial court erred admitting Dr. Smith’s billing opinions beyond his report | Provider: Dr. Smith reviewed coding and could opine on repricing | Erie: Dr. Smith’s expert report did not disclose billing/repricing opinions; admission prejudiced Erie | Admission exceeded fair scope of report; prejudicial; new trial warranted on repricing issue |
| Whether Erie was properly precluded from offering its billing expert (Linda Lengle) | Erie: relied on pretrial ruling that experts not necessary; exclusion was disparate treatment | Provider: Erie failed to disclose Lengle as expert so preclusion appropriate | Trial court excluded Lengle as an expert but allowed broad lay/experience testimony; on remand parties may supplement or present new expert evidence |
| Whether attorneys’ fees under 75 Pa.C.S. §§ 1716 and 1798(b) are available when insurer timely invokes PRO (peer review) | Provider: Erie’s referral lacked reasonable basis so fees proper under 1716/1798 | Erie: §1797 provides the exclusive scheme for PRO challenges; fees are authorized only when insurer refuses payment without PRO | Fees under §§ 1716 and 1798(b) reversed: when insurer timely invokes PRO it has not "refused" payment under those sections; no statutory authorization to award fees for a proper PRO referral (fees vacated) |
Key Cases Cited
- Herd Chiropractic Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058 (Pa. 2013) (§1797 authorizes fees only when insurer refuses payment without invoking PRO)
- Doctor’s Choice Physical Med. & Rehab. Ctr. P.C. v. Travelers Pers. Ins. Co., 128 A.3d 1183 (Pa. 2015) (reinforces that submission to PRO is a §1797 challenge and §1797 contains no fee‑shifting for PRO determinations)
- Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999) (attorney fees require express statutory authorization)
- Walsh v. Kubiak, 661 A.2d 416 (Pa. Super. 1995) (expert testimony must be within the fair scope of pretrial disclosure/report)
- Whitaker v. Frankford Hosp. of City of Phila., 984 A.2d 512 (Pa. Super. 2009) (denial of summary judgment becomes moot after trial; sufficiency reviewed on post‑trial motions)