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`IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
`IN AND FOR MIAMI-DADE COUNTY, FLORIDA
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`CASE NO.
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`ALFREDO MURCIANO, M.D., P.A., a
`Florida Corporation,
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`vs.
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`BLUE CROSS AND BLUE SHIELD OF
`FLORIDA, INC. d/b/a FLORIDA BLUE, a
`Florida corporation,
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`Plaintiff,
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`Defendant.
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`/
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`COMPLAINT
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`Plaintiff, ALFREDO MURCIANO, M.D., P.A. (“Dr. Murciano”), sues Defendant, BLUE
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`CROSS AND BLUE SHIELD OF FLORIDA, INC., d/b/a FLORIDA BLUE (“Florida Blue” or
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`Defendant) and alleges the following:
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`GENERAL ALLEGATIONS
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`A. Jurisdiction, Venue and Parties
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`This is an action for damages greater than $30,000.00, exclusive of court costs, pre-
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`1.
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`judgment interest and attorney’s fees.
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`2.
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`Plaintiff, Dr. Murciano, is a Florida for-profit corporation with its principal place
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`of business in Miami-Dade County, Florida.
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`3.
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`Defendant Florida Blue is a Florida for-profit corporation that contracts to insure
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`persons or risks located within the State of Florida, including Miami-Dade County. At all times
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`relevant hereto, Florida Blue was a licensed preferred provider organization (“PPO”) in Florida
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`within the meaning of, and subject to, Florida Statutes Chapter 627.
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`4.
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`Jane Doe (“Member”) is a fictitious name for the patient who received the medical
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`services described in this Complaint. Upon information and belief, Member can be identified by
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`Florida Blue Member ID # DOW323087790199.
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`5.
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`Baptist Hospital of Miami (not a party to this suit) is an acute care facility locate in
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`Miami-Dade, is a contracted facility with Florida Blue, and is where the medical services described
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`in this Complaint were provided.
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`6.
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`Venue is proper in Miami-Dade County, Florida, pursuant to Chapter 47, Florida
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`Statutes, because all services were performed in Miami-Dade County and billed from Plaintiff’s
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`principal place of business.
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`B. The Covered Services
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`Upon information and belief, at all times material, Baptist Hospital of Miami had
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`7.
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`and has a contractual agreement with Defendant by which Baptist Hospital of Miami agreed to
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`participate in Defendant’s network of participating facilities to provide medical services to
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`subscribing members covered by Defendant’s health plans.
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`8.
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`At all times material, Plaintiff had no direct agreement with Defendant to be
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`reimbursed for its services provided to Defendant’s subscribing members at discounted rates.
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`Accordingly, Plaintiff was and is considered an out-of-network or nonparticipating provider with
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`Florida Blue.
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`9.
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`Member
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`is covered by Defendant’s Florida-licensed preferred provider
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`organization (“PPO”) insurance policy (the “Policy), which was in full force and effect at the time
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`of the medical services provided herein. Plaintiff is not in possession of Member’s Policy,
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`however, Defendant is, or should be, in possession of Member’s policy. Plaintiff will file
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`Member’s policy upon obtaining a copy through discovery.
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`10.
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`The Member was born prematurely at 24 weeks and weighing one pound on April
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`3, 2020 at Baptist Hospital of Miami. The Member was immediately transferred to the Neonatal
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`Intensive Care Unit (“NICU”).
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`11.
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`At the NICU, the Member presented with sepsis, among other issues, and required
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`the emergency services of an infectious disease specialist. The only infectious disease specialist
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`on site at Baptist Hospital was Dr. Murciano.
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`12.
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`of death.
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`The Member’s sepsis and other issues were emergent in nature because of the risk
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`13.
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`The Member did not have the ability or opportunity to choose a participating in-
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`network provider at Baptist Hospital who was available to perform the medical services performed
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`by Dr. Murciano during Member’s treatment at Baptist Hospital of Miami.
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`14.
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`All medical services provided by Plaintiff were reasonable and medically necessary
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`in light of Member’s presenting condition.
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`15.
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`The medical services provided by Plaintiff to Member are covered services under
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`the Policy.
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`16.
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`Florida Blue did not make payment for the emergency and medically necessary
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`services required by the Member and provided by Dr. Murciano.
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`17.
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`Florida Blue gave no explanation for its claim processing procedures and took
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`inconsistent positions regarding the claims at issue (“the Emergency Claims”).
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`18.
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`Plaintiff’s billed charges for its medical services to Member were within the usual,
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`customary, and reasonable (“UCR”) rates for the community or geographic area based on what
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`providers in the area usually charge for the same or similar medical services.
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`19.
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`Plaintiff is entitled to reimbursement of its billed charges, as same are within the
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`UCR rates for the community or geographic area.
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`20.
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`In the alternative, if Plaintiff’s billed charges are determined to be in excess of the
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`UCR rates for the community or geographic area, Plaintiff is entitled to reimbursement for the
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`UCR rates for the community or geographic area.
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`21.
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`Defendant has wrongfully refused to pay Plaintiff its billed charges on the
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`submitted claims.
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`22.
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`Defendant has wrongfully refused to pay Plaintiff the UCR rates on the submitted
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`claims.
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`23.
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` The Emergency Claims were not paid by Florida Blue, however, Florida law
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`requires the Insurer to make payment when emergency services are rendered.
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`24.
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`Florida law requires the patient responsibility portion of the Emergency Claims be
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`processed at In-Network rates as it relates to Patient Responsibility. As such, the maximum Out of
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`Pocket expenses to the Member per the terms of the Policy cannot be more than $6,000.00.
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`25.
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`The Member has already paid the maximum amount allowable out of pocket.
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`Florida Blue has failed to account for this portion of the patient responsibility and has stated the
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`Member must pay the claims as set forth above.
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`26.
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`Plaintiff has retained the undersigned law firm to represent its interest in this matter.
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`Plaintiff has agreed to pay, and counsel for Plaintiff has agreed to accept, any Court awarded fee
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`for its reasonable attorney fees and costs.
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`COUNT I
`BREACH OF CONTRACT
`(Third-Party Beneficiary)
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`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
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`27.
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`through 26 as if fully set forth herein.
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`28.
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`At all times relevant, Member, while a patient at Baptist Hospital of Miami,
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`received emergency services and/or nonemergency services from Baptist Hospital of Miami under
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`the terms of the Policy.
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`29.
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`Plaintiff is a third-party beneficiary to the Policy since Defendant is mandated to
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`pay Plaintiff directly for such services pursuant to Florida law.
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`30.
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`Plaintiff is also a third-party beneficiary to the Policy (i) since Florida law
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`recognizes that medical service providers are intended beneficiaries of insurance contracts; (ii)
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`such contracts primarily and directly benefit medical providers such as Plaintiff pursuant to Florida
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`statutes incorporated within the insurance contracts by the statutory incorporation doctrine; and
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`(iii) because the insurance contracts either mandated or allowed for payment directly to Dr.
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`Murciano for the services that were provided to Member. Moreover, at all times material,
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`Defendant has acted as though Plaintiff was and is a third-party beneficiary thereby waiving any
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`anti-assignment and/or anti-third-party beneficiary clause(s) in its Policy.
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`31.
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`The Policy between Defendant and Member should be interpreted to provide that
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`Defendant should pay Plaintiff its billed charges or, in the alternative, the UCR rates for the
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`medical services rendered, if it is determined that the billed charges exceed the UCR raters for the
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`medical services rendered. Alternatively, the charges for services rendered by Plaintiff are either
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`set by statute or administrative regulation, which is incorporated into the contract through the
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`principle of statutory incorporation. The Defendant, Florida Blue, and the Member have a binding
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`insurance policy that provides for payment of the losses sustained in this case.
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`32.
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`After providing said medical services to Member, Plaintiff submitted charges to
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`Florida Blue.
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`33.
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`Florida Blue’s treatment of the Emergency Claims was inconsistent as
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`demonstrated below:
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`CLM #
`DOS
`04/04/20 - 04/10/20 H100000816261899
`04/11/20 - 04/21/20 H100000816261900
`04/22/20 - 04/29/20 H100000816261906
`04/30/20 - 05/07/20 H100000816261729
`05/08/20 - 05/09/20 H100000816262000
`05/11/20 - 05/18/20 H100000818607737
`05/13/20 - 05/23/20 H100000819114482
`05/25/20 - 05/30/20 H100000821513810
`06/01/20 - 06/05/20 H100000823057908
`06/06/20 - 06/20/20 H100000823864955
`06/09/20 - 06/29/20 H100000825491991
`07/06/20 - 07/09/20 H100000827530299
`07/13/20 - 07/16/20 H100000828928911
`Total
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`BILLED
`$8,600.00
`$11,700.00
`$6,475.00
`$6,475.00
`$1,500.00
`$6,400.00
`$7,250.00
`$7,800.00
`$4,625.00
`$7,400.00
`$11,100.00
`$3,700.00
`$3,700.00
`$86,725.00
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`PAID
`$1,796.15
`$2,484.99
`$880.60
`$880.60
`$174.54
`$1,040.79
`$1,467.82
`$1,656.66
`$0.00
`$0.00
`$0.00
`$0.00
`$503.20
`$10,885.35
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`BALANCE
`$6,803.85
`$9,215.01
`$5,594.40
`$5,594.40
`$1,325.46
`$5,359.21
`$5,782.18
`$6,143.34
`$4,625.00
`$7,400.00
`$11,100.00
`$3,700.00
`$3,196.80
`$75,839.65
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`34.
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`The total amount billed for the medical services rendered to Member by Plaintiff is
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`$86,725.00. Defendant only paid $10,885.35 – significantly less than Plaintiff’s usual, customary,
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`and reasonable charges.
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`35.
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`As a result, Defendant is in breach of its Policy with Member to which Plaintiff is
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`a third-party beneficiary.
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`36.
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`As a direct and proximate result of such breach of the Policy, to which Plaintiff is
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`an intended third-party beneficiary, Plaintiff has suffered damages in the amount of the unpaid
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`balance for its billed charges which are within the UCR rates for the medical service provided or,
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`in the alternative, what is determined to be the UCR rates for the medical services provided,
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`together with interest and reasonable attorney fees pursuant to Florida Statutes §§ 627.428,
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`627.6698, and 627.6131(7).
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`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant Florida
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`Blue for the unpaid balance of its full billed charges, as same are within the UCR rates, or in the
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`alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for the
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`community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
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`community or geographic area for its emergency and nonemergency charges for the medical
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`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
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`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
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`Court deems just and proper.
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`COUNT II
`UNJUST ENRICHMENT
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`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
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`37.
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`through 26 as if fully set forth herein.
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`38.
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`Plaintiff was not contracted with the Defendant when Plaintiff rendered medical
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`services to the Defendant’s Member.
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`39.
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`At all times material, Plaintiff billed the Defendant for medical services rendered
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`to Member.
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`40.
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`Plaintiff has properly and timely submitted claims for charges with the Defendant
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`for the medical services that the Plaintiff provided to the Insured. Such charges were within the
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`usual and customary charges for similar services in the community where such services were
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`provided.
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`41.
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`Despite demands, Defendant has refused and continues to refuse to pay the usual
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`and customary charges, instead grossly underpaying for the services rendered.
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`42.
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`The services provided by Plaintiff were medically necessary in the care and
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`treatment of Member and were performed with the Defendant’s knowledge.
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`43.
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`The care rendered by Baptist Hospital of Miami properly authorized or required no
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`such authorization for the specific treatment rendered.
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`44.
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`Authorization issued by the Defendant encompassed medically necessary emergent
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`services ordered and/or required for the care of the Member.
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`45.
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`Thus, the services conferred a direct benefit to the Defendant and were accepted by
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`the Defendant through the Insured.
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`46.
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`Defendant received the benefit of the services performed by Plaintiff but refuses to
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`pay Plaintiff the usual, customary, and reasonable compensation for those services.
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`47.
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`As a result, the circumstances are such that the Defendant should, in all fairness, be
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`required to pay for the services provided to the Insured.
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`48.
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`Due to the Defendant’s failure to pay the usual and customary charges for these
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`medical services, the Defendant has been unjustly enriched and the Plaintiff has suffered damages
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`in the amount of the outstanding balance, or in the alternative, an amount that is determined to be
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`the usual and customary charges for similar services performed in Miami-Dade County, Florida.
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`49.
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`In addition, Plaintiff suffered damages in the form of interest and reasonable
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`attorneys’ fees and costs pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7).
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`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant
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`Florida Blue for the unpaid balance of its full billed charges, which are within the UCR rates, or
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`in the alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for
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`the community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
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`community or geographic area for its emergency and nonemergency charges for the medical
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`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
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`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
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`Court deems just and proper.
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`COUNT III
`VIOLATION OF FLA. STAT. § 627.64194
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`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
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`59.
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`through 26 as if fully set forth herein.
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`60. Member is enrolled in Defendant’s PPO and, as such, Member’s policy is governed
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`by Florida’s PPO statute found in Florida Statutes Chapter 627.
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`61.
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`Section 627.64194 of the Florida Statutes, states in pertinent part:
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`(2) An insurer is solely liable for payment of fees to a nonparticipating provider
`of covered emergency services provided to an insured in accordance with the
`coverage terms of the health insurance policy, and such insured is not liable for
`payment of fees for covered services to a nonparticipating provider of
`emergency services, other than applicable copayments, coinsurance, and
`deductibles. An insurer must provide coverage for emergency services that:
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` …
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`(b) Must be provided regardless of whether the services are furnished by a
`participating provider or a nonparticipating provider.
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` …
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`(4) An insurer must reimburse a nonparticipating provider of services under
`subsections (2) and (3) as specified in s. 641.513(5), reduced only by insured cost
`share responsibilities as specified in the health insurance policy, within the
`applicable timeframe provided in s. 627.6131.
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`See Fla. Stat. § 627.64194 (emphasis added)
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`62.
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`“Facility” in Florida Statutes § 627.64194 is more specifically defined by Florida
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`Statutes § 395.002(17), meaning “a hospital or ambulatory surgical center licensed in accordance
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`with this chapter.”
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`63. Member received care and treatment at Baptist Hospital of Miami, one of Florida
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`Blue’s contracted facilities.
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`64.
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`Plaintiff’s surgical services were medically necessary and directly related to
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`Member’s diagnosis, care, and covered treatment received at Baptist Hospital of Florida.
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`65.
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`Section 627.64194 provides that “[a]n insurer must reimburse a nonparticipating
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`provider of services under subsections (2) and (3) … as specified in [section] 641.513(5)…”
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`66.
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`Section 641.513(5), in turn, sets the reimbursement amount for non-contracted
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`provides to be the lesser of:
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`(a)
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`(b)
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`the provider’s charges; [or]
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`The usual and customary provider charges for similar services in the community
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`where the services were provided; or
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`(c)
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`The charge mutually agreed to by the [insurer] and the provider within 60 days of
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`the submittal of the claim.
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`See Fla. Stat. § 641,513(5).
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`67.
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`The parties did not mutually agree on a rate to be paid for this claim.
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`68.
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`The amount remitted by Florida Blue falls below both the usual and customary
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`charge in the community and the Plaintiff’s billed amount.
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`69.
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`Defendant has wrongfully refused to pay Plaintiff its billed charges or the UCR
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`rates on the submitted claims in violation of the statute.
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`70.
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`As a direct and proximate result of Defendant’s violation of the statutes, Plaintiff
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`has suffered damages in the amount of the unpaid balance for its billed charges which are within
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`the UCR rates for the medical service provided or, in the alternative, what is determined to be the
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`UCR rates for the medical services provided, together with prejudgment interest and its reasonable
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`attorney fees pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7).
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`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant Florida Blue
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`for the unpaid balance of its full billed charges, as same are within the UCR rates, or in the
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`alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for the
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`community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
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`community or geographic area for its emergency and nonemergency charges for the medical
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`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
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`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
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`Court deems just and proper.
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`DEMAND FOR JURY TRIAL
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`Plaintiff demands a trial by jury of all issues triable as a matter of right to a jury.
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`Dated: February 7, 2022
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`Respectfully submitted,
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`Tache, Bronis and Descalzo, P.A.
`150 S.E. Second Avenue, Suite 600
`Miami, Florida 33131
`Telephone:
`(305) 537-9565
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`
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`(305) 537-9567
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`Facsimile:
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`By: /s/ Marissel Descalzo
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`Marissel Descalzo, Esq.
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`Florida Bar No. 669318
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`mdescalzo@tachebronis.com
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`service@tachebronis.com
`Counsel for Alfredo Murciano, M.D., P.A.
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