DOCTOR‘S CHOICE PHYSICAL MEDICINE & REHABILITATION CENTER, P.C. (LaSelva), Appellee v. TRAVELERS PERSONAL INSURANCE COMPANY, Appellant.
128 A.3d 1183
Supreme Court of Pennsylvania.
Argued Oct. 7, 2015. Decided Dec. 21, 2015.
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
ORDER
PER CURIAM.
AND NOW, this 16th day of December, 2015, the Petition for Allowance of Appeal is GRANTED. The issues are:
- Did the Superior Court err when it held that the standard of proof to be employed by the trial court in a sufficiency review hearing for a Section 302 involuntary commitment is clear and convincing evidence in light of the existing case law, and the exigent nature of Section 302 commitments?
- Did the Superior Court err when it held that a petitioner who challenges the sufficiency of the evidence of a Section 302 involuntary commitment was entitled to a de novo review by the trial court pursuant to
18 Pa.C.S. § 6111.1(g)(2) ?
The Application for Leave to File Post-Submission Communication is DENIED.
Thomas A. McDonnell, Esq., Summers, McDonnell, Hudock & Guthrie, P.C., Daniel L. Rivetti, Esq., Robb Leonard Mulvihill, L.L.P., for Insurance Federation of Pennsylvania, Inc. and Pennsylvania Defense Institute, Amici Curiae.
Jessica Margaret Heinz, Esq., Ernest Frank Koschineg III, Esq., Cipriani & Werner, P.C., for Travelers Personal Insurance Company.
Mary Ann Kennedy Claraval, Esq., Robert F. Claraval, Esq., Claraval & Claraval, for Doctors Choice Physical Medicine & Rehabilitation Center, P.C., (LaSelva).
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
OPINION
Chief Justice SAYLOR.
This appeal concerns ongoing controversy over the availability of attorneys’ fee awards against insurance companies that have invoked the peer-review provisions of the Motor Vehicle Financial Responsibility Law, which also was the context of this Court‘s recent decision in Herd Chiropractic Clinic v. State Farm Mutual Automobile Insurance Co., 619 Pa. 438, 64 A.3d 1058 (2013).
In 2004, Angela LaSelva sustained injuries in a motor vehicle accident. She treated with David G. Novatnak, D.C., a licensed chiropractor practicing with Appellee Doctor‘s Choice Physical Medicine and Rehabilitation Center, P.C. (“Provider“). Provider submitted invoices for the services directly to Ms. LaSelva‘s first-party benefits insurance carrier, Appellant Travelers Personal Insurance Company (“Insurer“), as required per the Motor Vehicle Financial Responsibility Law.1 See
Insurer later requested peer review through IMX Medical Management Services (“IMX“), a peer review organization (“PRO“). See
Provider opposed this withholding and commenced a civil action against Insurer in the court of common pleas. Among other things, the complaint alleged that all treatments undertaken through Provider were reasonable and necessary and that the review conducted by IMX did not comport with the mandates of Section 1797 of the MVFRL. Furthermore, Provider asserted that IMX failed to comply with requirements of the Pennsylvania Code directing PROs to apply national or regional norms in their determinations or, where such norms do not exist, to establish written criteria to be used in conducting reviews. See
If, pursuant to paragraph (4), a court determines that medical treatment [was] medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12%, as well as the costs of the challenge and all attorney fees.
After conducting a bench trial, the common pleas court entered a verdict in Provider‘s favor, encompassing an award of attorneys’ fees of approximately $39,000.2 In its supporting analysis, the common pleas court initially expressed substantial misgivings about the peer-review process, as follows:
The peer review process established under the MVFRL has long been viewed with suspicion by our courts. The Pennsylvania Supreme Court has discerned that because only the insurer participates in the peer review process, any claim of neutrality is suspect. The Court stated, “the detachment and neutrality required of a fact-finder is conspicuously absent in the contractual relationship between a PRO and an insurer.” Terminato v. Pennsylvania National Ins. Co., [538 Pa. 60, 68,] 645 A.2d 1287, 1291 (1994).... The insurance company initially pays the PRO for its services and the insured plays
no role in the selection process, further confirming that PROs have a strong financial incentive to appear fair in the eyes of the insurance company. As such, the Courts have determined that a PRO does not have the characteristics of an independent body for which the Legislature would seek judicial deference. [See Lehman v. State Farm Ins. Cos., 140 P.L.J. 78, 82 (C.P. Allegheny 1992) ]. Doctor‘s Choice Physical Med. & Rehab. Ctr., P.C. v. Travelers Pers. Ins. Co., No. 2008 CV 16214, slip op. at 4-5, 2012 WL 11943694 (C.P. Dauphin Dec. 13, 2012). According to the court, the circumstances at hand present “a classic example of that well-founded suspicion[.]” Id. at 5.
The common pleas court then specifically rejected Dr. Cavallo‘s report and associated opinions for various reasons, including his failure to proceed according to national or regional norms or pre-established written criteria. See, e.g., id. at 7 (“It was apparent to the Court during the trial that IMX and Dr. Cavallo had not complied with Section 69.53(e) gov-
erning PRO standards for operation, thus rendering Dr. Cavallo‘s peer review report not only invalid but a clear abuse of the peer review procedure[;] ... likewise [the report] displayed a rather blatant disregard by IMX for even minimal safeguards for fairness and accuracy envisioned by the Act.“). Moreover, the court determined that all treatments rendered by Dr. Novatnak were reasonable and necessary in providing essential management of the pain deriving from Ms. LaSelva‘s injuries.
The verdict against Insurer pre-dated the issuance of this Court‘s decision in Herd, which held that Section 1797 of the MVFRL does not serve as a basis for attorneys’ fee awards on provider challenges to peer-review determinations. See Herd, 619 Pa. at 451, 64 A.3d at 1066. The carrier invoked Herd during the post-trial motions process, and, in response, the common pleas court vacated the award of attorneys’ fees. In its order, the court deemed itself bound by Herd but nonetheless took the opportunity to reiterate its position that the review conducted by Dr. Cavallo was “devoid of any validity,” such that “no valid peer review was ever accomplished.” Order dated June 21, 2013, in Doctor‘s Choice, No. 2008 CV 16214, at 2. Additionally, the court opined as follows: “[T]his patently unjust result is solely within the purview of the General Assembly to remedy, and we encourage our Legislature to immediately address this matter.” Id. at 3.
On appeal, the Superior Court reversed the decision to strike the fee award. See Doctor‘s Choice Physical Med. & Rehab. Ctr., P.C. (LaSelva) v. Travelers Pers. Ins. Co., 92 A.3d 813 (Pa.Super.2014). Centrally, the intermediate court focused on the common pleas court‘s determination that no valid peer review determination had been realized, given Dr. Cavallo‘s failure to ground his analysis in national norms, regional norms, or pre-established written standards as required per Section 69.53(e) of the Pennsylvania Code. See, e.g., id. at 817-18. In such circumstance, the court reasoned, fee-shifting was required by Section 1797(b)(6), notwithstanding Herd.
The Superior Court acknowledged that, per the plain-meaning interpretation of Section 1797 applied in Herd, “only an insurer‘s refusal to pay that is not based on a peer review determination under Section 1797(b) implicates [an] attorney fee award[.]” Id. at 817. Because, however, the common pleas court had determined that the review conducted by Dr. Cavallo did not comport with the statutory and regulatory requirements governing the performance of peer review, the intermediate court refused to recognize, for purposes of Section 1797(b)(4), that Insurer
In support of this construction, the Superior Court relied on Levine v. Travelers Property Casualty Insurance Co., 69 A.3d 671, 679 (Pa.Super.2013) (holding that an insurer‘s denial of payment of provider invoices based on an independent medical examination concerning a lack of causal relation of an injury to an accident did not encompass a review of the reasonableness and necessity of subsequent treatments in the nature of peer review for purposes of Section 1797). In this regard, the intermediate court read Levine very broadly as establishing that a carrier‘s referral of provider invoices for contested treatment to a PRO “must result in a peer-reviewed determination upon which an insurer can rely in deciding whether to pay the bills.” Doctor‘s Choice, 92 A.3d at 820. Responding to Insurer‘s argument that deficiencies in peer review occasioned by a PRO should not be attributed to insurance carriers, the court admonished that “insurers are presumed to possess a full understanding of the nature of a valid peer review and its attendant procedures and requirements.” Id. at 821 (referencing
Finally, the Superior Court indicated that interpreting the phrase “challenged before a PRO” in Section 1797(b)(4) to mean the simple act of advancing a challenge would be absurd. See id. at 821. The intermediate court opined, without further explanation, that such interpretation would render the remaining provisions of Section 1797 concerning the actual determinations of PROs meaningless. See id.
We allowed appeal to evaluate the correctness of the Superior Court‘s construction that Insurer “has not challenged” the reasonableness and necessity of treatment before a PRO,
Presently, Insurer observes that the word “challenge” is commonly defined as “to dispute” or “to question.” Reply Brief for Appellant at 2 (quoting BLACK‘S LAW DICTIONARY 223 (7th ed.1999)). It is the carrier‘s core position that it did precisely that when it submitted Provider‘s invoices to a PRO for peer review. Furthermore, Insurer maintains that the Superior Court‘s contrary construction of the phrase “challenged before a PRO,” as it appears in Section 1797(b)(4), conflicts squarely with this Court‘s determination that “[t]here is ... simply no express statutory authorization for fee shifting on provider challenges to peer-review determinations.” Herd, 619 Pa. at 451, 64 A.3d at 1066.
From the perspective of Insurer and its amici, the Pennsylvania Defense Institute and Insurance Federation of Pennsylvania, allocating the consequences of deficiencies in peer review to the insurance industry effectively requires carriers to oversee the regulatory compliance of PROs. They observe, however, that the Legislature expressly has directed such oversight responsibility to the Insurance Department. See Brief for Appellant at 18 (citing
As to the Levine decision, Insurer distinguishes the case as entailing a scenario in which a carrier had not submitted the specific bills at issue to a PRO for review, but rather, inappropriately relied upon a prior independent medical examination to deny payment. See Levine, 69 A.3d at 679. According to Insurer, although this independent medical examination had been obtained through a PRO, this circumstance was idiosyncratic and wholly inconsequential to the decision.
Responding to criticisms lodged by Provider and its amicus of the peer review scheme, Insurer asserts that these “seek only to cloud the straightforward issue presented to this Court, namely, whether the Superior Court improperly interpreted § 1797 to allow attorneys’ fees even when an insurer has ‘challenged’ the treatment at issue before a PRO, despite the Herd holding.” Reply Brief for Appellant at 3. It is Insurer‘s position that the abstract claims of bias are misdirected, as these sorts of broader systemic concerns should be raised before the political branch.
Provider, on the other hand, and its amicus the Pennsylvania Association for Justice, view fee-shifting as the norm under Section 1797 and the unavailability of fee awards upon challenges submitted to peer review as “a very narrow excep- tion to the mandatory award of attorney fees at § 1797(b)(4) and (6).” Brief for Appellee at 11. In this vein, they find it to be entirely appropriate to deem the concept of a “challenge” within Section 1797(a)(4) as subsuming not only the submission of provider invoices to a PRO, but also a fully realized, valid peer-review determination. See, e.g., id. at 25 (“Unless all the Legislative and the Insurance Department requirements are met an analysis is not a peer review.“). Provider and its amicus reference a series of other statutes as reflecting the proposition that the term “challenge” means “submission of an issue for proper procedural review and a procedurally correct result.”3
Provider and its amicus also stress that insurance companies are sophisticated entities; carriers are required to apprehend the requirements of the written analysis accomplished as a core facet of the peer review process, see
Additionally, Provider and its amicus strongly differ with Insurer‘s contention that the Superior Court‘s decision places carriers in the position of regulating PROs. From their perspective, material violations of the Pennsylvania Code were apparent from the face of Dr. Cavallo‘s report and were subject to ready apprehension and redress by Insurer. See, e.g., Brief for Appellee at 21 (“All [Insurer] had to do was a cursory review by a prudent person familiar with [applicable] [r]egulations to determine the report was invalid.“).
Throughout their submissions, Provider and its amicus harken back to the tone of the Terminato decision questioning the fairness of the peer review process. See, e.g., id. at 16 (“The Legislature as a matter of public policy mandated an award of attorney fees to help the health care provider when confronted with exactly the ‘scorched earth’ tactics insurance carriers use to deny payment of medical bills that are as a matter of fact reasonable and necessary.” (referencing Herd, 619 Pa. at 458-59, 64 A.3d at 1071 (Baer, J., dissenting))). It is their position that fee shifting serves as a means for counteracting bias and, more broadly, ensuring fairer peer review. See, e.g., id. at 33. Along these lines, Provider asserts that insurance companies often refuse payment as a tactic to reduce verdicts and the settlement value of personal injury cases. According to Provider, “[t]his is an extraordinary example of system failure.” Id. at 42.
In Herd, this Court explained that Pennsylvania law embodies the American rule, per which there can be no recovery of attorneys’ fees from an adverse party in litigation, absent express statutory authorization, clear agreement by the parties, or some other established exception. See Herd, 619 Pa. at 450, 64 A.3d at 1066 (citing Merlino v. Delaware Cnty., 556 Pa. 422, 425, 728 A.2d 949, 951 (1999)). Like Herd, this case centers upon whether there is ”explicit” statutory authorization within Section 1797 for fee-shifting where a carrier has tendered a timely challenge to the reasonableness or necessity of treatment to a PRO. Id. at 450-51 nn. 10 & 11, 64 A.3d at 1066 nn. 10 & 11 (emphasis added). Upon review, we agree with Insurer and its amici that there is no such explicit authorization.
The Superior Court‘s construction of the statutory term “challenged before a PRO” as necessarily “encompassing a valid completed peer review,” Doctor‘s Choice, 92 A.3d at 819 (emphasis added), does not reflect direct application of explicit language. Along these lines, as Insurer has explained, a conventional understanding of the word “challenge” is more modest. See generally
Even within the four corners of Section 1797(b)(4), provider challenges and insurer
In substance, we believe that the Superior Court‘s broader construction of the concept of a challenge was policy driven. However, as this Court explained in Herd:
[F]ee shifting raises a host of mixed policy considerations in and of itself, which this Court has found are best left to the General Assembly, in the absence of contractual allocation or some other recognized exception to the general, American rule. The Legislature‘s failure to adjust Section 1797 over time as imperfections have been revealed by ex-
perience, while unfortunate, does not alter the functions ascribed to our respective branches of government. Accordingly, in the absence of a demonstrated constitutional infirmity, courts generally must apply plain terms of statutes as written; they are to confine their efforts to effectuate legislative intent—above and beyond the prescription of written laws—to ambiguous provisions; and they are to enforce the longstanding responsibility allocated to the policymaking branch to provide for fee shifting, when it is deemed appropriate, through explicit pronouncements.
As noted above, the Superior Court also asserted, without any developed explanation, that a plain-meaning interpretation of the word “challenged” as it appears in Section 1797(b)(4) would render the remaining provisions of the statute concerning the actual determinations of PROs meaningless. See Doctor‘s Choice, 92 A.3d at 821. In point of fact, however, every provision within Section 1797 addressing determinations retains meaning while according “challenge” its ordinary connotation. For example, an insurer may request a reconsideration of a PRO‘s initial “determination” per Section 1797(b)(2).
In this regard, fee-shifting simply is not the overarching thrust of the enactment. Rather, this dynamic is a discrete facet, and, throughout the statute, the concept of “determination” plainly retains meaning independent of the fee-shifting inquiry. Respectfully, it is the Superior Court‘s
As to the Levine decision, the dispositive analysis turned on the fact that the independent medical examination in issue concerned the causal association between an injury and an accident, not the reasonableness or necessity of later treatment. See Levine, 69 A.3d at 679. The case does not fairly stand for the broader proposition that the reasonableness and necessity of treatment is not “challenged before a PRO,” for Section 1797(a)(4) purposes, even though a carrier in fact did advance a timely challenge.5
Finally, none of the statutes referenced by Provider or its amicus as examples of similar applications of the word “challenge” utilizes the term to mean a contest that is resolved properly by the body charged with making a determination. See supra note 3. Ultimately, the disposition of this appeal turns on a straightforward understanding of a “challenge” and the appreciation that “[t]here is ... simply no express statutory authorization for fee shifting on provider challenges to peer-review determinations.” Herd, 619 Pa. at 451, 64 A.3d at 1066.
This Court remains cognizant of the shortcomings of the peer-review regime. We have no reasonable means, however, of assessing the degree to which these may be offset by the benefits of cost containment and potentially lower insurance premiums available to the public at large.6 Rather, the Legislature is invested with the implements to conduct investigations, hearings, and open deliberations to address such salient policy matters. Accord Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 653, 57 A.3d 1232, 1245 (2012). In such landscape, we decline to deviate from conventional statutory interpretation to advance directed policy aims.
The order of the Superior Court is reversed, and the matter is remanded for reinstatement of the modified verdict.
Justices EAKIN, BAER, TODD and STEVENS join this opinion.