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Verci v. High

Court of Appeals of Illinois, Third District

December 18, 2019

DAWN VERCI, Plaintiff-Appellee,
v.
MICHAEL HIGH and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 649, Defendants-Appellants.

          Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. Circuit No. 11-L-129 The Honorable Michael D. Risinger Judge, Presiding.

          Attorneys for Appellants: Jo T. Wetherill, of Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellants.

          Attorneys for Appellee: Todd A. Strong, of Strong Law Offices, of Peoria, for appellee.

          JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Holdridge and O'Brien concurred in the judgment and opinion.

          OPINION

          LYTTON JUSTICE

         ¶ 1 In March 2014, plaintiff Dawn Verci filed negligence claims against defendants Michael High and International Union of Operating Engineers, Local No. 649. Plaintiff claims that as a result of defendants' negligence, she was injured and required to undergo medical treatment costing in excess of $1 million. A majority of plaintiffs medical charges are from Dr. Richard Kube of the Prairie Spine and Pain Institute and the Prairie Surgicenter. The reasonable value of the medical services provided by Kube is a major issue of contention.

         ¶ 2 In January 2019, the trial court entered an order (1) prohibiting defendants from cross- examining Kube or his associated medical entities regarding their own cash advertised pricing at trial and (2) allowing defendants' billing expert, Rebecca Reier, to testify at trial regarding her opinions on the reasonable value of Kube's medical services. Soon thereafter, the parties filed a joint petition for interlocutory appeal. The trial court granted the petition and certified two questions challenging the court's order. We answer both certified questions in the affirmative and remand for further proceedings.

         ¶ 3 I. BACKGROUND

         ¶ 4 On March 14, 2012, plaintiff filed her first amended complaint, alleging negligence against each defendant. Plaintiff claims that, as a result of defendants' negligence, she was physically injured, required to undergo medical treatment, and incurred over $1 million in charges for her treatment. Approximately $800, 000 of plaintiffs alleged medical expenses arise out of treatment plaintiff received from Dr. Richard Kube at the Prairie Spine and Pain Institute and the Prairie Surgicenter. Both entities are owned and operated by Kube.

         ¶ 5 In discovery, defendants disclosed the identity of an expert, Rebecca Reier, to present testimony regarding the reasonable value of plaintiff s medical services. Reier prepared a report, which was provided to plaintiff. In her report, Reier reviewed Kube's total charges of $810, 937.04, and concluded that "the Usual, Customary and Reasonable total charges for the same geographic area for the same services are approximately $148, 118.00." (Emphasis in original.) One of the bases for Reier's conclusion was the cash prices advertised by Prairie Spine and Pain Institute and Prairie Surgicenter on Healthcare.com. Reier determined that the charges submitted to plaintiff by Kube are more than 547% higher than the prices advertised online by both entities for the same procedures. Sources Reier used in determining the usual, reasonable, and customary charges for the medical services plaintiff received include "Fair Health Data Systems," "Optum National Fee Analyzer 2012-2016-Fair Health Database," and "The American Hospital Directory CMA and Fair Health Database." According to Reier's report, "Fair Health collects charge data from private insurer and health plan administrators across the country." Plaintiff filed a motion and later a supplemental motion to bar Reier's testimony.

         ¶ 6 Reier was deposed in 2018. She explained that in determining the reasonable value of medical services, she relied on three databases: (1) FAIR Health, (2) Optum, which also uses FAIR Health data, and (3) American Hospital Directory. She identified FAIR Health as "[t]he primary database" she used.

         ¶ 7 Reier explained that FAIR Health receives all of its data from insurance companies. Insurance companies report the charges they receive from medical providers to FAIR Health, and FAIR Health separates the data geographically. FAIR Health then identifies a range of charges, from the 5th to 95th percentile. Outliers are eliminated, so if a provider charges a very different rate than others, that rate is not included in the database because it is "not considered statistically significant by FAIR Health." Reier determined that a reasonable charge would be at the 75th percentile, which means "75 percent of all the providers in this geographic area charge this amount or less." She chose the 75th percentile because it is her "peer group's choice among, like, your planners as well as practitioners and practice managers. It seems to be the fairest way to identify what everybody in the neighborhood is charging."

         ¶ 8 In the FAIR Health database, providers are identified by geographical area. FAIR Health does not identify providers by name. Reier did not reach out to providers in the geographic area to determine what they charge. She relied exclusively on the data from FAIR Health. With respect to FAIR Health's methodology, Reier stated: "[W]e have to bring in the Fair Health attorneys, because they will be glad to explain in detail methodology since none of us are statisticians." She later stated, "I have their, their standard protocol which I can provide. And as I have said, if there is a question about their protocol, their data analysis, um, the attorneys are more than willing to come and speak."

         ¶ 9 Reier also relied on data from Optum. Optum takes the FAIR Health data and separates it into smaller geographical areas. Reier did not look at the actual data that Optum collected. Reier assumes that Optum and FAIR Health correctly performed their statistical analyses. She has not seen the raw data used by Optum or FAIR Heath but sees the ...


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