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Filing # 143440377 E-Filed 02/07/2022 04:04:42 PM
`
`IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
`IN AND FOR MIAMI-DADE COUNTY, FLORIDA
`
`CASE NO.
`
`
`
`ALFREDO MURCIANO, M.D., P.A., a
`Florida Corporation,
`
`
`
`vs.
`
`BLUE CROSS AND BLUE SHIELD OF
`FLORIDA, INC. d/b/a FLORIDA BLUE, a
`Florida corporation,
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`/
`
`COMPLAINT
`
`
`
`Plaintiff, ALFREDO MURCIANO, M.D., P.A. (“Dr. Murciano”), sues Defendant, BLUE
`
`CROSS AND BLUE SHIELD OF FLORIDA, INC., d/b/a FLORIDA BLUE (“Florida Blue” or
`
`Defendant) and alleges the following:
`
`GENERAL ALLEGATIONS
`
`A. Jurisdiction, Venue and Parties
`
`This is an action for damages greater than $30,000.00, exclusive of court costs, pre-
`
`
`
`1.
`
`judgment interest and attorney’s fees.
`
`
`
`2.
`
`Plaintiff, Dr. Murciano, is a Florida for-profit corporation with its principal place
`
`of business in Miami-Dade County, Florida.
`
`
`
`3.
`
`Defendant Florida Blue is a Florida for-profit corporation that contracts to insure
`
`persons or risks located within the State of Florida, including Miami-Dade County. At all times
`
`

`

`relevant hereto, Florida Blue was a licensed preferred provider organization (“PPO”) in Florida
`
`within the meaning of, and subject to, Florida Statutes Chapter 627.
`
`
`
`4.
`
`Jane Doe (“Member”) is a fictitious name for the patient who received the medical
`
`services described in this Complaint. Upon information and belief, Member can be identified by
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`Florida Blue Member ID # DOW323087790199.
`
`
`
`5.
`
`Baptist Hospital of Miami (not a party to this suit) is an acute care facility locate in
`
`Miami-Dade, is a contracted facility with Florida Blue, and is where the medical services described
`
`in this Complaint were provided.
`
`
`
`6.
`
`Venue is proper in Miami-Dade County, Florida, pursuant to Chapter 47, Florida
`
`Statutes, because all services were performed in Miami-Dade County and billed from Plaintiff’s
`
`principal place of business.
`
`B. The Covered Services
`
`Upon information and belief, at all times material, Baptist Hospital of Miami had
`
`
`
`7.
`
`and has a contractual agreement with Defendant by which Baptist Hospital of Miami agreed to
`
`participate in Defendant’s network of participating facilities to provide medical services to
`
`subscribing members covered by Defendant’s health plans.
`
`8.
`
`At all times material, Plaintiff had no direct agreement with Defendant to be
`
`reimbursed for its services provided to Defendant’s subscribing members at discounted rates.
`
`Accordingly, Plaintiff was and is considered an out-of-network or nonparticipating provider with
`
`Florida Blue.
`
`9.
`
`Member
`
`is covered by Defendant’s Florida-licensed preferred provider
`
`organization (“PPO”) insurance policy (the “Policy), which was in full force and effect at the time
`
`of the medical services provided herein. Plaintiff is not in possession of Member’s Policy,
`
`

`

`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.
`
`10.
`
`The Member was born prematurely at 24 weeks and weighing one pound on April
`
`3, 2020 at Baptist Hospital of Miami. The Member was immediately transferred to the Neonatal
`
`Intensive Care Unit (“NICU”).
`
`11.
`
`At the NICU, the Member presented with sepsis, among other issues, and required
`
`the emergency services of an infectious disease specialist. The only infectious disease specialist
`
`on site at Baptist Hospital was Dr. Murciano.
`
`12.
`
`of death.
`
`The Member’s sepsis and other issues were emergent in nature because of the risk
`
`13.
`
`The Member did not have the ability or opportunity to choose a participating in-
`
`network provider at Baptist Hospital who was available to perform the medical services performed
`
`by Dr. Murciano during Member’s treatment at Baptist Hospital of Miami.
`
`14.
`
`All medical services provided by Plaintiff were reasonable and medically necessary
`
`in light of Member’s presenting condition.
`
`15.
`
`The medical services provided by Plaintiff to Member are covered services under
`
`the Policy.
`
`16.
`
`Florida Blue did not make payment for the emergency and medically necessary
`
`services required by the Member and provided by Dr. Murciano.
`
`17.
`
`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”).
`
`
`
`
`
`

`

`18.
`
`Plaintiff’s billed charges for its medical services to Member were within the usual,
`
`customary, and reasonable (“UCR”) rates for the community or geographic area based on what
`
`providers in the area usually charge for the same or similar medical services.
`
`19.
`
`Plaintiff is entitled to reimbursement of its billed charges, as same are within the
`
`UCR rates for the community or geographic area.
`
`20.
`
`In the alternative, if Plaintiff’s billed charges are determined to be in excess of the
`
`UCR rates for the community or geographic area, Plaintiff is entitled to reimbursement for the
`
`UCR rates for the community or geographic area.
`
`21.
`
`Defendant has wrongfully refused to pay Plaintiff its billed charges on the
`
`submitted claims.
`
`22.
`
`Defendant has wrongfully refused to pay Plaintiff the UCR rates on the submitted
`
`claims.
`
`23.
`
` The Emergency Claims were not paid by Florida Blue, however, Florida law
`
`requires the Insurer to make payment when emergency services are rendered.
`
`
`
`24.
`
`Florida law requires the patient responsibility portion of the Emergency Claims be
`
`processed at In-Network rates as it relates to Patient Responsibility. As such, the maximum Out of
`
`Pocket expenses to the Member per the terms of the Policy cannot be more than $6,000.00.
`
`
`
`25.
`
`The Member has already paid the maximum amount allowable out of pocket.
`
`Florida Blue has failed to account for this portion of the patient responsibility and has stated the
`
`Member must pay the claims as set forth above.
`
`
`
`26.
`
`Plaintiff has retained the undersigned law firm to represent its interest in this matter.
`
`Plaintiff has agreed to pay, and counsel for Plaintiff has agreed to accept, any Court awarded fee
`
`for its reasonable attorney fees and costs.
`
`

`

`COUNT I
`BREACH OF CONTRACT
`(Third-Party Beneficiary)
`
`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
`
`
`
`27.
`
`through 26 as if fully set forth herein.
`
`
`
`28.
`
`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
`
`the terms of the Policy.
`
`
`
`29.
`
`Plaintiff is a third-party beneficiary to the Policy since Defendant is mandated to
`
`pay Plaintiff directly for such services pursuant to Florida law.
`
`
`
`30.
`
`Plaintiff is also a third-party beneficiary to the Policy (i) since Florida law
`
`recognizes that medical service providers are intended beneficiaries of insurance contracts; (ii)
`
`such contracts primarily and directly benefit medical providers such as Plaintiff pursuant to Florida
`
`statutes incorporated within the insurance contracts by the statutory incorporation doctrine; and
`
`(iii) because the insurance contracts either mandated or allowed for payment directly to Dr.
`
`Murciano for the services that were provided to Member. Moreover, at all times material,
`
`Defendant has acted as though Plaintiff was and is a third-party beneficiary thereby waiving any
`
`anti-assignment and/or anti-third-party beneficiary clause(s) in its Policy.
`
`
`
`31.
`
`The Policy between Defendant and Member should be interpreted to provide that
`
`Defendant should pay Plaintiff its billed charges or, in the alternative, the UCR rates for the
`
`medical services rendered, if it is determined that the billed charges exceed the UCR raters for the
`
`medical services rendered. Alternatively, the charges for services rendered by Plaintiff are either
`
`set by statute or administrative regulation, which is incorporated into the contract through the
`
`

`

`principle of statutory incorporation. The Defendant, Florida Blue, and the Member have a binding
`
`insurance policy that provides for payment of the losses sustained in this case.
`
`
`
`32.
`
`After providing said medical services to Member, Plaintiff submitted charges to
`
`Florida Blue.
`
`
`
`33.
`
`Florida Blue’s treatment of the Emergency Claims was inconsistent as
`
`demonstrated below:
`
`
`
`
`
`
`
`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
`
`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
`
`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
`
`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
`
`34.
`
`The total amount billed for the medical services rendered to Member by Plaintiff is
`
`$86,725.00. Defendant only paid $10,885.35 – significantly less than Plaintiff’s usual, customary,
`
`and reasonable charges.
`
`

`

`35.
`
`As a result, Defendant is in breach of its Policy with Member to which Plaintiff is
`
`a third-party beneficiary.
`
`36.
`
`As a direct and proximate result of such breach of the Policy, to which Plaintiff is
`
`an intended third-party beneficiary, Plaintiff has suffered damages in the amount of the unpaid
`
`balance for its billed charges which are within the UCR rates for the medical service provided or,
`
`in the alternative, what is determined to be the UCR rates for the medical services provided,
`
`together with interest and reasonable attorney fees pursuant to Florida Statutes §§ 627.428,
`
`627.6698, and 627.6131(7).
`
`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant Florida
`
`Blue for the unpaid balance of its full billed charges, as same are within the UCR rates, or in the
`
`alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for the
`
`community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
`
`community or geographic area for its emergency and nonemergency charges for the medical
`
`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
`
`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
`
`Court deems just and proper.
`
`COUNT II
`UNJUST ENRICHMENT
`
`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
`
`
`
`37.
`
`through 26 as if fully set forth herein.
`
`
`
`38.
`
`Plaintiff was not contracted with the Defendant when Plaintiff rendered medical
`
`services to the Defendant’s Member.
`
`
`
`39.
`
`At all times material, Plaintiff billed the Defendant for medical services rendered
`
`to Member.
`
`

`

`
`
`40.
`
`Plaintiff has properly and timely submitted claims for charges with the Defendant
`
`for the medical services that the Plaintiff provided to the Insured. Such charges were within the
`
`usual and customary charges for similar services in the community where such services were
`
`provided.
`
`
`
`41.
`
`Despite demands, Defendant has refused and continues to refuse to pay the usual
`
`and customary charges, instead grossly underpaying for the services rendered.
`
`
`
`42.
`
`The services provided by Plaintiff were medically necessary in the care and
`
`treatment of Member and were performed with the Defendant’s knowledge.
`
`
`
`43.
`
`The care rendered by Baptist Hospital of Miami properly authorized or required no
`
`such authorization for the specific treatment rendered.
`
`
`
`44.
`
`Authorization issued by the Defendant encompassed medically necessary emergent
`
`services ordered and/or required for the care of the Member.
`
`
`
`45.
`
`Thus, the services conferred a direct benefit to the Defendant and were accepted by
`
`the Defendant through the Insured.
`
`
`
`46.
`
`Defendant received the benefit of the services performed by Plaintiff but refuses to
`
`pay Plaintiff the usual, customary, and reasonable compensation for those services.
`
`
`
`47.
`
`As a result, the circumstances are such that the Defendant should, in all fairness, be
`
`required to pay for the services provided to the Insured.
`
`
`
`48.
`
`Due to the Defendant’s failure to pay the usual and customary charges for these
`
`medical services, the Defendant has been unjustly enriched and the Plaintiff has suffered damages
`
`in the amount of the outstanding balance, or in the alternative, an amount that is determined to be
`
`the usual and customary charges for similar services performed in Miami-Dade County, Florida.
`
`

`

`
`
`49.
`
`In addition, Plaintiff suffered damages in the form of interest and reasonable
`
`attorneys’ fees and costs pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7).
`
`
`
`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant
`
`Florida Blue for the unpaid balance of its full billed charges, which are within the UCR rates, or
`
`in the alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for
`
`the community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
`
`community or geographic area for its emergency and nonemergency charges for the medical
`
`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
`
`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
`
`Court deems just and proper.
`
`COUNT III
`VIOLATION OF FLA. STAT. § 627.64194
`
`Plaintiff re-adopts and re-alleges and incorporates by reference paragraphs 1
`
`
`
`59.
`
`through 26 as if fully set forth herein.
`
`
`
`60. Member is enrolled in Defendant’s PPO and, as such, Member’s policy is governed
`
`by Florida’s PPO statute found in Florida Statutes Chapter 627.
`
`
`
`61.
`
`Section 627.64194 of the Florida Statutes, states in pertinent part:
`
`(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:
`
` …
`
`
`
`
`(b) Must be provided regardless of whether the services are furnished by a
`participating provider or a nonparticipating provider.
`
` …
`
`
`
`

`

`
`(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.
`
`See Fla. Stat. § 627.64194 (emphasis added)
`
`62.
`
`“Facility” in Florida Statutes § 627.64194 is more specifically defined by Florida
`
`
`
`Statutes § 395.002(17), meaning “a hospital or ambulatory surgical center licensed in accordance
`
`with this chapter.”
`
`
`
`63. Member received care and treatment at Baptist Hospital of Miami, one of Florida
`
`Blue’s contracted facilities.
`
`
`
`64.
`
`Plaintiff’s surgical services were medically necessary and directly related to
`
`Member’s diagnosis, care, and covered treatment received at Baptist Hospital of Florida.
`
`
`
`65.
`
`Section 627.64194 provides that “[a]n insurer must reimburse a nonparticipating
`
`provider of services under subsections (2) and (3) … as specified in [section] 641.513(5)…”
`
`
`
`66.
`
`Section 641.513(5), in turn, sets the reimbursement amount for non-contracted
`
`provides to be the lesser of:
`
`
`
`
`
`(a)
`
`(b)
`
`the provider’s charges; [or]
`
`The usual and customary provider charges for similar services in the community
`
`where the services were provided; or
`
`
`
`(c)
`
`The charge mutually agreed to by the [insurer] and the provider within 60 days of
`
`the submittal of the claim.
`
`See Fla. Stat. § 641,513(5).
`
`
`
`67.
`
`The parties did not mutually agree on a rate to be paid for this claim.
`
`

`

`
`
`68.
`
`The amount remitted by Florida Blue falls below both the usual and customary
`
`charge in the community and the Plaintiff’s billed amount.
`
`
`
`69.
`
`Defendant has wrongfully refused to pay Plaintiff its billed charges or the UCR
`
`rates on the submitted claims in violation of the statute.
`
`
`
`70.
`
`As a direct and proximate result of Defendant’s violation of the statutes, Plaintiff
`
`has suffered damages in the amount of the unpaid balance for its billed charges which are within
`
`the UCR rates for the medical service provided or, in the alternative, what is determined to be the
`
`UCR rates for the medical services provided, together with prejudgment interest and its reasonable
`
`attorney fees pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7).
`
`WHEREFORE, Plaintiff Dr. Murciano demands judgment against Defendant Florida Blue
`
`for the unpaid balance of its full billed charges, as same are within the UCR rates, or in the
`
`alternative, if Plaintiff’s billed charges are determined to be in excess of the UCR rates for the
`
`community or geographic area, Plaintiff demands judgment for the unpaid UCR rates for the
`
`community or geographic area for its emergency and nonemergency charges for the medical
`
`services rendered, together with pre-judgment interest and its reasonable attorney fees and costs
`
`pursuant to Florida Statutes §§ 627.428, 627.6698, and 627.6131(7) and such other relief as the
`
`Court deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`
`
`Plaintiff demands a trial by jury of all issues triable as a matter of right to a jury.
`
`Dated: February 7, 2022
`
`
`
`Respectfully submitted,
`
`Tache, Bronis and Descalzo, P.A.
`150 S.E. Second Avenue, Suite 600
`Miami, Florida 33131
`Telephone:
`(305) 537-9565
`
`

`

`(305) 537-9567
`
`Facsimile:
`
`By: /s/ Marissel Descalzo
`
`
`Marissel Descalzo, Esq.
`
`Florida Bar No. 669318
`
`mdescalzo@tachebronis.com
`
`service@tachebronis.com
`Counsel for Alfredo Murciano, M.D., P.A.
`
`
`
`
`
`
`
`
`

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