throbber

`
`202163M4 1234
`
`5/26/2021 12:46 PM
`Marilyn Burgess - District Clerk Harris County
`Envelope No. 53833148
`:11
`
`VITACARE FAMILY PRACTICE,
`PLLC
`
`Plaintiff,
`
`V.
`
`MOLINA HEALTHCARE OF TEXAS,
`INC.,
`
`Defendant
`








`
`IN THE DISTRICT COURT
`
`JUDICIAL DISTRICT
`
`OF HARRIS COUNTY, TEXAS
`
`PLAINTIFF’S ORIGINAL PETITION
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`NOW COMES VitaCare Family Practice, PLLC (“VitaCare”), Plaintiff, complaining of
`
`and about Molina Healthcare Of Texas, Inc., Defendant, and for cause of action shows unto the
`
`Court the following:
`
`INTRODUCTION
`
`1.
`
`This action concerns the Defendant’s failure and refusal
`
`to properly pay or
`
`reimburse Plaintiff for claims made for medical care and services that Plaintiff provided to
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`Defendant’s members. Plaintiff, both independently and as assignee of the rights of several of
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`Defendant’s members who received medical services from Plaintiff,
`
`seek damages from
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`Defendant as set forth herein. That failure to pay claims included not only the claim itself, but
`
`also the penalty or interest for failure to pay the claims timely.
`
`DISCOVERY CONTROL PLAN LEVEL
`
`2.
`
`Plaintiff intends that discovery be conducted under Discovery Level 2.
`
`PARTIES AND SERVICE
`
`3.
`
`Plaintiff, VitaCare, is a corporation, whose principal place of business is located
`
`at 11399 Veterans Memorial Dr., Suite B, Houston, Harris County, Texas 77067.
`
`The
`
`Registered Agent there is Dr. Vinh Hoang Vo.
`
`
`
`

`

`4.
`
`Defendant Molina Healthcare of Texas, Inc.
`
`is a for-profit Texas corporation
`
`whose office is located at 5605 N. MacArthur Blvd, Suite 400, Irving, Texas 75038.
`
`It can be
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`served with process by serving its registered agent, Corporation Service Company dba CSC —
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`Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
`
`JURISDICTION AND VENUE
`
`5.
`
`6.
`
`The subject matter in controversy is within the jurisdictional limits of this court.
`
`Pursuant to Texas Rules of Civil Procedure “TRCP” 47, Plaintiff seeks monetary
`
`relief over $200,000, but not more than $1,000,000.
`
`7.
`
`This court has jurisdiction over the parties because the Defendant does business in
`
`the State of Texas.
`
`8.
`
`Venue in Harris County is proper in this cause under Section 15.002(a)(1) of the
`
`Texas Civil Practice and Remedies Code because all or a substantial part of the events or
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`omissions giving rise to this lawsuit occurred in this county.
`
`AGENCY
`
`9.
`
`Any time it is alleged in this pleading that a Defendant did an act or failed to do
`
`any act or thing, it is meant that Defendant or its authorized, apparent, or ostensible agent(s),
`
`employee(s), or representative(s) did such act or failed to do such act or thing, thereby making
`
`Defendants liable.
`
`BACKGROUND FACTS
`
`10.
`
`Defendant Molina Healthcare of Texas, Inc. is a corporation with a principal place
`
`of business in Texas. Defendant collectively offers insurance plans, products, and service in the
`
`State of Texas, hereinafter
`
`referred to as (“Molina”). Defendant
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`is in the business of
`
`compensating medical providers for covered medical services rendered to their patient members.
`
`Defendant markets and advertises to patients and medical provider alike for the insurance plans,
`
`
`
`

`

`products, and services they provide in Texas. Plaintiff entered into a contract with Defendant,
`
`effective January 1, 2016, for the provision of various medical services to Defendant’s patient
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`members. That contract continues in force. Defendant publishes policies, procedures, and
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`guidelines for medical providers generally,
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`for those medical providers to rely on when
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`attempting to bill or collect for medical services. Specific representations are made to physicians
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`and patients alike regarding the “usual and customary” payments made to health care providers.
`
`11.
`
`After Plaintiff would render medical services to Defendants’ patient members,
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`they would submit a claim to the Defendant for payment to Plaintiff. At various times,
`
`Defendant would incorrectly deny a properly presented “clean” claim, at other times they would
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`not pay a properly presented claim in agreement with the contracted rate, at other times they
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`would not pay the penalty if they failed to timely pay the claim pursuant to the Prompt Payment
`
`of Claims Act provisions of the Texas Insurance Code Chap. 542, et. seq., and further, at other
`
`times, they failed to pay the interest on the claims pursuant to that same Prompt Payment of
`
`Claims Act. Plaintiff has made numerous and repeated attempts to resolve those clean claims
`
`but have not been able to resolve any of the issues sued upon. Plaintiff believes they are not only
`
`entitled to the proper processing of clean claims, but to not be subjected to the improper denials
`
`of clean claims. They further allege that, at a minimum and consistent with the causes of action
`
`below, they are entitled to penalties for failure to make prompt payments of the claims, but also
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`interest on the unpaid claims properly and timely presented.
`
`CAUSES OF ACTION:
`
`12.
`
`Any time it is alleged in this pleading that Defendant did an act or failed to do any
`
`act or thing, it is meant that Defendant or their authorized, apparent, or ostensible agent(s),
`
`employee(s), or representative(s) did such act or failed to do such act or thing, thereby making
`
`Defendant liable.
`
`
`
`

`

`13.
`
`Plaintiff would respectfully show that
`
`it
`
`is entitled to recover money from
`
`Defendant for negligent misrepresentation, quantum meruit, fraud, civil conspiracy promissory
`
`estoppel, and/or unjust enrichment.
`
`14.
`
`Plaintiff re-alleges paragraphs 10 through 11 above and incorporate the same
`
`herein by reference as if fully set forth here verbatim for each cause of action presented herein.
`
`1. NEGLIGENTMISREPRESENTA TION
`
`15.
`
`Plaintiff would respectfully show that Molina, or their agents, failed to exercise
`
`reasonable care or competence in communicating billing practices, claims processing, claims
`
`coverage, and insurance coverage information to guide Plaintiff through the claims processing
`
`and reimbursement. Plaintiff justifiably relied on this representation and suffered a pecuniary
`
`loss as a result of the false information.
`
`2. QUANTUMMERUIT
`
`16.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to recover the usual and customary
`
`charges for the medical treatment, goods, and services provided to Molina’s client based in
`
`quantum meruit. In this respect, Plaintiff provided necessary medical treatment, goods, and
`
`services to Molina’s clients with the express understanding that each would be compensated by
`
`Molina by a negotiated or usual and customary rate. Also, Molina accepted the medical
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`treatment, goods, claims, and services from Plaintiff without objection. Molina accepted the
`
`benefits of the medical treatment, goods, and services rendered by Plaintiff to Molina’s clients
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`and, as a result, thereby became liable to Plaintiff for the reasonable value thereof.
`
`3. FRAUD
`
`17.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to recover damages caused by Molina’s
`
`
`
`

`

`fraudulent conduct. Molina knowingly made false and material representations to Plaintiff during
`
`their course of business by making false promises regarding the payments to which Plaintiff was
`
`entitled for medical treatment, goods, and services rendered to Defendant's clients. Defendant
`
`intended that Plaintiff rely on such representations as contained within the communications.
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`Plaintiff, in fact, did rely on such false and material representations, and Plaintiff suffered injury
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`therefrom. Plaintiff seeks exemplary damages for Defendants’ fraudulent conduct.
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`4. BREACH OF CONTRACT
`
`18.
`
`Alternatively, Plaintiff seeks to recover as assignees of Defendants’ contractual
`
`rights. Plaintiffs provided medical care and services to each of Defendants’ members, and
`
`Plaintiff submitted clean claims for those services. For each of those claims for which Plaintiff
`
`seeks payment from Molina, Plaintiff obtained an assignment of benefits from the member, who
`
`in each case had a valid and enforceable insurance contract with Molina that required Molina to
`
`pay for those services. Molina breached its obligations under its contracts with its members by
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`failing to fully and properly pay for the medical services that Plaintiff provided to Molina’s
`
`members. As a direct and proximate result of Defendant’s breaches, Plaintiff, as assignees, have
`
`been damaged. Plaintiff, as assignee, is entitled to recover the damages incurred as a result of
`
`Molina’s failure to fully, properly, and timely pay for the medical services provided by Plaintiff,
`
`including, as applicable, penalties, interest, and attomey’s fees pursuant to section 542.060 of the
`
`Texas Insurance Code.
`
`5. CIVIL CONSPIRACY
`
`19.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that Molina conspired together to accomplish the
`
`common goal of denying or underpaying medical providers in violation of law. As a result of this
`
`conspiracy, Plaintiff suffered proximate damages.
`
`
`
`

`

`6. PROMISSOR YESTOPPEL
`
`20.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to enforcement of Molina’s promises
`
`under the doctrine of promissory estoppel. Molina promised to pay Plaintiff for medical
`
`treatment, goods, and services rendered to Defendant's clients based on the usual and customary
`
`rate as stipulated by their publish policies and procedures along with Texas law. Plaintiff
`
`reasonably and substantially relied on the promises to their detriment by providing the medical
`
`treatment, goods, and services to Molina’s clients without full payment in advance. Molina
`
`intended for Plaintiff to rely on these promises and Plaintiff’ s reliance was foreseeable by
`
`Molina. Injustice can be avoided only by enforcing Molina’s legal duty to pay Plaintiff.
`
`7. UNJUSTENRICHMENT
`
`21.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to recover from Molina under the
`
`theory of unjust enrichment. Molina is unjustly enriched by retaining the benefits of the medical
`
`treatment, goods, and services rendered by Plaintiff. By Molina not paying for the charges
`
`associated with the medical costs,
`
`including paying for those charges in a timely manner,
`
`Defendant profits from the money not properly spent for the services while retaining their
`
`shareholders and insured under the guise of providing coverage.
`
`8. INSURANCE CODEAND DECEPTIVE TRADE PRACTICESACT
`
`22.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to recover from Molina under both the
`
`Art. 542 of the TEXAS INSURANCE CODE (Processing and Settlement of Claims) and the
`
`DTPA tie-in.
`
`
`
`

`

`23.
`
`The DTPA and ART. 542 of the TEXAS INSURANCE CODE "
`
`shall be
`
`liberally construed and applied to promote its underlying purposes, which are to protect
`
`consumers against false, misleading, and deceptive business practices
`
`" In that regard, Molina
`
`has been guilty of the following false, misleading and/or deceptive acts or practices with respect
`
`to the handling and denial of the claims:
`
`Misrepresenting to a claimant a material
`a.
`provisions relating to coverage at issue,
`
`fact or policy
`
`Failing to attempt in good faith to effectuate a prompt, fair,
`b.
`and equitable settlement of a claim with respect to which the insurer's
`liability has become reasonably clear,
`
`Refusing to pay a claim without conducting a reasonable
`c.
`investigation with respect to the claim,
`
`Misrepresenting an insurance policy by making an untrue
`d.
`statement of material fact, failing to state a material fact, making a
`statement in such a manner as to mislead, making a material statement
`of law or failing to disclose any matter required by law to be
`disclosed, and,
`
`Causing confusion or misunderstanding as to the source,
`e.
`sponsorship, approval, or certification of goods or services.
`
`Each of the above and foregoing violations by Molina constitutes actionable conduct by
`
`Molina in violation of the DTPA and ART. 542 of the TEXAS INSURANCE CODE for which
`
`the Plaintiff brings suit in this case.
`
`24.
`
`The Texas Insurance Board has also adopted rules and regulations which prohibit
`
`unfair practices and misrepresentations of insurance policies. Violations of these rules and
`
`regulations also provide bases for causes of action pursuant to ART. 542. When this case is tried,
`
`the evidence will also show that Molina has violated the following rules and regulations of the
`
`Board by:
`
`Misrepresenting the pertinent
`a.
`relating to coverages,
`
`facts or policy provisions
`
`
`
`

`

`fair
`Not attempting in good faith to effectuate prompt,
`b.
`settlement of claims
`submitted in which liability has become
`reasonably clear,
`
`Failing to adopt and implement reasonable standards for
`c.
`prompt investigation of claims; and,
`
`Refusing to pay claims without conducting a reasonable
`d.
`investigation based upon all available information.
`
`All of the above-referenced violations of the Insurance Board rules and regulations also
`
`constitute false, misleading or deceptive acts or practices in the conduct of business by Molina in
`
`this case and are therefore actionable under both the TEXAS INSURANCE CODE and the
`
`DTPA, for which the Plaintiff brings suit in this case.
`
`25.
`
`Under information and belief, all of the violations of the DTPA, the TEXAS
`
`INSURANCE CODE and the Texas Board's rules and regulations were committed "knowingly"
`
`by Molina, as that term is defined and applied under the laws and statutes of the State of Texas.
`
`Molina has intentionally and knowingly failed to pay the Plaintiffs claims in accordance with the
`
`terms of the published policies, procedures, and insurance agreements.
`
`26.
`
`As a direct and proximate result of Molina’s violation of the DTPA, the TEXAS
`
`INSURANCE CODE, and the Texas Board's rules and regulations, the Plaintiff has suffered
`
`actual damages. Since Molina acted intentionally and knowingly in committing one or more of
`
`the violations of the DTPA and ART. 542 of the TEXAS INSURANCE CODE, Molina is liable
`
`for three times the actual damages, for which they also bring suit. Further, suit is also brought for
`
`the recovery of the Plaintiffs attorney's fees pursuant to the applicable provisions of the DTPA
`
`and ART. 542 of the TEXAS INSURANCE CODE.
`
`9. VIOLATION OFSECTION1301 OF THE TEXASINSURANCE CODE
`
`AND TEXAS PROMPT PA YMENT OF CLAIMS A CT
`
`27.
`
`Alternatively, but without waiving the above, and specifically insisting on the
`
`same, Plaintiff would respectfully show that it is entitled to recover damages caused by Molina
`
`
`
`

`

`violation of Section 1301 of the TEXAS INSURANCE CODE by failing to comply with the
`
`prompt payment requirements of the Code. The Plaintiff timely submitted a clean claim to
`
`Molina according to Molina’s published policies and procedures. Molina did not pay in the
`
`amounts authorized by Molina’s published policies and procedure for reimbursing medical
`
`providers and the Texas Insurance Code. Therefore, Molina has violated that particular section of
`
`the TEXAS INSURANCE CODE, entitling the Plaintiff to recover not only the amount of the
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`claims, but in addition, the sum of eighteen percent (18%) per annum of the amount payable,
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`together with reasonable attorney's fees which they have incurred with regard to legal
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`representation in this action against Molina, for which suit is also brought.
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`ATTORNEY’S FEES
`
`28.
`
`Due to Molina’s refusal to pay Plaintiff the monies due for necessary medical
`
`treatment, goods, and services provided to Molina’s client, Plaintiff has been required to employ
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`the services of the undersigned attorney. Plaintiff is entitled to recover their reasonable attorney's
`
`fees and costs pursuant to TEX. CIV. PRAC. & REM. CODE§ 38.001(8), which amounts will be
`
`stated at such time as they can be determined, and for which amounts Plaintiff prays for
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`judgment.
`
`RIGHT TO AMEND
`
`29.
`
`Plaintiff specif1cally reserve the right to amend these pleadings upon pretrial
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`discovery, order of the Court, or as counsel may agree.
`
`CONDITIONS PRECEDENT
`
`30.
`
`All conditions precedent have occurred or are excused.
`
`
`
`

`

`NOTICE OF REQUIRED INITIAL DISCLOSURE
`
`31.
`
`Under Rule 194 of the Texas Rules of Civil Procedure, Plaintiff notifies
`
`Defendants of their duty disclose, within 30 days of the service of this request, the information or
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`material described in Rule 194.2, 194.3, and 194.4.
`
`RULE 193.7 NOTICE
`
`32.
`
`Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby
`
`give notice that all documents produced by Defendants in response to discovery authenticate the
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`documents for use in all pretrial and trial proceedings.
`
`PRAYER
`
`WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be
`
`cited to appear and answer and, that upon final trial hereof, Plaintiff have judgment against
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`Defendant for:
`
`a.
`
`actual damages,
`
`b. exemplary damages,
`
`c.
`
`reasonable and necessary attorney's fees incurred by Plaintiff in prosecuting their
`
`breach of contract causes of action against Defendant, through trial and all levels
`
`of appeal, if necessary,
`
`d. prejudgment interest on actual damages at the highest legal rate,
`
`e.
`
`all costs of Court expended in the pursuit of this action,
`
`
`
`

`

`f.
`
`post-judgment interest at the highest legal rate, and monetary relief, including
`
`damages of any kind, penalties, costs, expenses, prejudgment
`
`interest, and
`
`attorney fees,
`
`g.
`
`and such other and further relief, general or special, legal or equitable, to which
`
`Plaintiff may show himselfjustly entitled and which the Court deems appropriate.
`
`Respectfully submitted,
`
`
`
`5 :\.
`
` By:
`Michael D. Clay
`\
`Texas Bar No. 04331750
`
`Email: MichaelDClay@yahoo.com
`P. O. Box 540784
`
`Houston, Texas 77254
`Ph: (713) 530—3433
`Fax: (888) 728-1020
`Attorney for VitaCare Family Services, PLLC
`
`
`
`
`
`

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