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Turner v. Orthopedic and Shoulder Center, SC

Court of Appeals of Illinois, Fourth District

July 6, 2017

CASSANDRA TURNER, Plaintiff-Appellant,
v.
ORTHOPEDIC AND SHOULDER CENTER, S.C., Defendant-Appellee.

         Appeal from Circuit Court of McLean County No. 15L25, Honorable Rebecca Simmons Foley, Judge Presiding.

          APPLETON JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Knecht concurred in the judgment and opinion.

          OPINION

          APPLETON JUSTICE.

         ¶ 1 Plaintiff, Cassandra Turner, brought this action against defendant, Orthopedic and Shoulder Center, S.C., for consumer fraud (see 815 ILCS 505/1 et seq. (West 2014)) and intentional infliction of emotional distress (see Restatement (Second) of Torts § 46 (1965)). Both theories were premised on defendant's charging her more for medical services than the amounts that defendant had agreed to charge, in its contract with plaintiff's health insurer, Blue Cross Blue Shield of Illinois (Blue Cross). The allegedly fraudulent charge was in the form of a healthcare services lien that defendant asserted against the settlement proceeds in plaintiff's personal-injury case (Turner v. Simpsen, No. 14-L-176 (Cir. Ct. McLean Co.)). See 770 ILCS 23/10 (West 2014).

         ¶ 2 Defendant moved for a summary judgment on both theories, and the trial court granted the motion. In the same order, the court denied a petition by plaintiff to adjudicate defendant's lien to be zero. See 770 ILCS 23/30 (West 2014). Plaintiff appeals.

         ¶ 3 In our de novo review of the summary judgment, we reach the following conclusions. First, plaintiff has forfeited her theory of intentional infliction of emotional distress because, in her opening brief, she makes no reasoned argument in support of that theory. Second, asserting the health-care services lien was a breach of contract, but it was not consumer fraud. Therefore, we affirm the summary judgment on the two counts of the second amended complaint, but we reverse the denial of plaintiff's "Petition To Adjudicate Lien to Zero."

         ¶ 4 I. BACKGROUND

         ¶ 5 A. The "Participating Provider Agreement"

         ¶ 6 On March 30, 2011, defendant entered into a "Participating Provider Agreement" with Blue Cross. Lawrence Li signed the agreement on behalf of defendant, and Stephen F. Hammen, a vice president, signed it on behalf of Blue Cross.

         ¶ 7 In the "Participating Provider Agreement, " defendant agrees to accept Blue Cross insurance as full payment for any covered service it renders to Blue Cross patients. This understanding between defendant and Blue Cross is expressed, for instance, in article IV, paragraph 3(A), of the agreement (in which the "Contracting Provider" is defendant and the "Plan" is Blue Cross):

"(A) The Contracting Provider agrees to accept the Plan's Usual and Customary Fee allowance as full payment for each service covered by the Plan Insured's Usual and Customary Contract, and the total amount payable by both the Plan and the Plan Insured, when the Plan Insured has any deductible, coinsurance[, ] or co-payment balance for which the Plan Insured is responsible, shall not exceed the Plan's Usual and Customary Fee determination."

         ¶ 8 Article IV, paragraph 7, negates defendant's right, under any circumstances, to seek payment from the patient for covered services, except for copayments and deductibles:

"7. The Contracting Provider agrees that in no event, including, but not limited to, nonpayment by the Plan of the amounts due the Contracting Provider under this contract, insolvency of the organization[, ] or any breach of this contract by the organization, shall the Contracting Provider or its assignees or subcontractors have a right to seek any type of payment from, bill, charge, collect a deposit from, or have any recourse against (i) the Covered Person; (ii) persons acting on the Covered Person's behalf (other than the Plan); and/or (iii) the employer or group contract holder for services provided pursuant to this Agreement, except for the payment of applicable copayments or deductibles for services covered by the Plan or fees for services not covered by the Plan. The requirements of this clause shall survive any termination of this Agreement for services rendered prior to such termination, regardless of the cause of such termination. The Covered Persons, the persons acting on the Covered Person's behalf (other than the Plan)[, ] and the employer or group contract holder shall be third party beneficiaries of this clause. This clause supersedes any oral or written agreement now existing or hereafter entered into between the Contracting Provider and the Covered Person, persons acting on the Covered Person's behalf (other than the Plan)[, ] and the employer or group contract holder."

         ¶ 9 B. The Motor Vehicle Accident and the Consequent Medical Treatment

         ¶ 10 On July 14, 2014, plaintiff was involved in a motor vehicle accident, in which she sustained injuries.

         ¶ 11 From July to October 2014, defendant treated her for these injuries.

         ¶ 12 C. The Notices of Lien

         ¶ 13 On July 16, 2014, defendant sent a notice of a health-care services lien in the amount of $19, 877.29 to Progressive Casualty Insurance Company, which was plaintiff's automobile insurer.

         ¶ 14 On July 17, 2014, defendant sent a notice of lien in the revised amount of $19, 847.29 to Country Financial, which was the tortfeasor's automobile insurer.

         ¶ 15 On September 19, 2014, defendant sent a notice of lien in the revised amount of $30, 048.55 to Country Financial.

         ¶ 16 On December 17, 2014, defendant sent a notice of lien in the revised amount of $34, 027.40 to Country Financial.

         ¶ 17 Defendant sent none of these notices to either plaintiff or the alleged tortfeasor, Aja Simpsen.

         ¶ 18 D. Blue Cross Pays Defendant at the Discounted Rate, and Without Being Asked To Do So, Defendant Pays Blue Cross Back

         ¶ 19 Plaintiff had Blue Cross health insurance. Defendant billed Blue Cross a total of $29, 008.55 for its treatment of plaintiff. Blue Cross's usual and customary allowance, however, was only $6495.63, so that is the amount it paid defendant.

         ¶ 20 After cashing the check from Blue Cross, defendant paid Blue Cross back, although Blue Cross never requested that defendant do so. Defendant issued one check to Blue Cross in the amount of $6093.44 and another check ...


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