Day v. Sarasota Doctors Hospital, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID DAY,

Plaintiff,

v. Case No. 8:19-cv-1522-VMC-TGW

SARASOTA DOCTORS HOSPITAL,

INC. d/b/a DOCTORS HOSPITAL

OF SARASOTA,

Defendant.

____________________________/

ORDER

This matter comes before the Court upon consideration of

Plaintiff David Day’s Motion for Summary Judgment (Doc. #

186) and Defendant Sarasota Doctors Hospital, Inc.’s Motion

for Summary Judgment, both filed on November 13, 2020. (Doc.

# 187). The parties have responded (Doc. ## 197; 200) and

replied to each Motion. (Doc. ## 207; 208). For the reasons

set forth below, Doctors Hospital’s Motion is granted, and

Day’s Motion is denied.

I. Background

Following a motor vehicle accident on February 21, 2017,

Day received emergency medical treatment at Doctors Hospital.

(Doc. # 194-1 at 19:1-25). Upon arrival at the Hospital, Day

signed a “Conditions of Admission and Consent for Outpatient

Care” form (“COA”), which included provisions stipulating

that Day agreed to pay the rates listed in Doctors Hospital’s

chargemaster, and also noting that the Hospital accepted

discounted rates from certain insured and uninsured patients:

5. Financial Agreement. In consideration of the

services to be rendered to Patient, Patient or

Guarantor individually promises to pay the

Patient’s account at the rates stated in the

hospital’s price list (known as the Charge Master)

effective on the date the charge is processed for

the service provided, which rates are hereby

expressly incorporated by reference as the price

term of this agreement to pay the patient’s

account. Some special items will be priced

separately if there is no price listed on the Charge

Master. An estimate of the anticipated charges for

services to be provided to the Patient is available

upon request from the hospital. Estimates may vary

significantly from the final charges based on a

variety of factors, including, but not limited to,

the course of treatment, intensity of care,

physician practices, and the necessity of providing

additional goods and services.

* * *

If supplies and services are provided to Patient

who has coverage through a governmental program or

through certain private health insurance plans, the

hospital may accept a discount payment for those

supplies and services. In this event any payment

required from the Patient or Guarantor will be

determined by the terms of the governmental program

or private health insurance plan. If the Patient is

uninsured and not covered by a governmental

program, the Patient may be eligible to have his or

her account discounted or forgiven under the

hospital’s uninsured discount or charity care

programs in effect at the time of treatment. I

understand that I may request information about

these programs from the hospital.

(Doc. # 187-3 at 1-2) (emphasis in original). Day “probably”

did not read the COA before signing it. (Doc. # 194-1 at

144:1-146:1). Neither did he review the Hospital’s

chargemaster or visit the Hospital’s website, where the

chargemaster is published. (Id. at 144:21-24; Doc. # 194-6 at

115:20-116:13). Nor did he request an estimate of his charges

before or after seeking treatment. (Doc. # 194-1 at 144:7-

13). Still, before leaving the Hospital on February 21, 2017,

Day paid $80 toward his medical treatment. (Id. at 31:17-18;

Doc. # 194-7 at 2).

At the time of treatment, Day’s only applicable form of

insurance was a personal injury protection policy (“PIP”

insurance) – also known as no-fault insurance – issued by

Progressive. (Doc. # 194-1 at 30:24-31:2, 76:13-14; Doc. #

187-9 at 1). Florida law requires all motor vehicle owners to

purchase PIP insurance, “which provides a maximum of $10,000

in medical coverage for injured drivers.” Fla. Stat. §

627.736(1) (2020); (Doc. # 194-3 at 11). Under the PIP

statute, hospitals and other healthcare providers must charge

PIP insurers and injured parties “only a reasonable amount.”

Fla. Stat. § 627.736(5)(a); (Doc. # 194-3 at 11; Doc. # 205

at ¶ 1). “In exchange for [this] reasonable charge[,] no-

fault insurance guarantee[s] [hospitals] prompt payment of

medical bills.” (Doc. # 186 at ¶ 4; Doc. # 172 at 3).

On February 25, 2017, Doctors Hospital submitted its

claim for reimbursement for Day’s medical treatment to

Progressive. (Doc. # 194-8). The claim form included the

Hospital’s chargemaster rates: “$1,471 for an X-Ray of

[Day’s] shoulder; $1,621 for a Level Three emergency room

visit; and $18 for dispensing [three pills of 800 milligrams

of] ibuprofen, for a total of $3,110.” (Id.; Doc. # 194 at ¶

24; Doc. # 194-10). Progressive then issued an Explanation of

Benefits (“EOB”) to Doctors Hospital, providing for an

allowable amount of $2,332.50, with the “allowable amount”

representing “the combined amount to be paid by the insurance

company . . . and the patient[.] The patient’s responsibility

can include a co-payment and/or deductible.” (Doc. # 194-10

at 2-3; Doc. 194-3 at 5-6; Doc. # 194 at ¶ 27) (citation

omitted).

This sum represents seventy-five percent of the $3,110

charged by Doctors Hospital. (Doc. # 194-10 at 2-3) (“The

allowable amount has been calculated pursuant to Florida

Statute 627.736(5) which limits reimbursement to 75% of the

hospital’s usual and customary charges for emergency

services.”). Of that $2,332.50, Progressive determined that

Day owed the Hospital $1,246.50, which represented $975 from

his policy’s $1,000 deductible and a $271.50 co-payment.

(Id.; Doc. # 194-1 at 79:24-25, 88:22-89:3). Based on

Progressive’s calculations, Doctors Hospital sent Day a bill

for $1,146.50, reflecting his $1,246.50 responsibility, minus

the $80 he paid on the day of treatment and a $20 prompt-pay

discount. (Doc. # 194-7 at 2; Doc. # 194-9 at 63:7-66:7).

Presently, Day has not paid this $1,146.50 balance. (Doc. #

194-1 at 76:1-14).

During discovery, Doctors Hospital provided Day with a

number of its confidential contracts with private health

insurers. Doctors Hospital’s expert, Michael Heil, who has

“[twenty-five] years’ experience in management consulting for

hospitals, health systems, medical groups, health plans, and

emergency medical services agencies,” then calculated what a

patient would have been expected to pay Doctors Hospital for

the services Day received if the patient were covered by those

other insurers. (Doc. # 194-3 at 19-21; Doc. # 205 at 9).

The first relevant contract is one between Doctors

Hospital and an insurer for certain outpatient services.

(Id.). Under this contract, a patient would have paid $965

for the same services Day received. (Id.). The second and

third relevant contracts were between Doctors Hospital and

two insurers for bundled services. (Id.; 194-3 at 9-11).

Insurers and hospitals often contract with each other based

on bundles of services, rather than on a line-by-line basis.

(Doc. # 193-1 at 151:13-21). With respect to those two

contracts, a covered patient would have paid $2,946 under the

second, and $2,070 under the third. (Doc. # 194-3 at 9).

Day initiated this action in state court on December 1,

2017. (Doc. # 1). Following the filing of an amended

complaint, which included a putative class action, Doctors

Hospital removed the case to this Court on June 24, 2019.

(Id.). On July 23, 2020, the Court denied Day’s motion to

certify class. (Doc. # 155). Now, four claims remain against

Doctors Hospital, including claims for violations of the

Florida Deceptive Unfair Trade Practices Act (“FDUTPA”)

(Counts I and II), breach of contract (Count III), and

declaratory relief (Count VI). (Doc. ## 42; 46; 86; 155). The

parties both seek entry of summary judgment in their favor.

(Doc. ## 186; 187). Each party has responded (Doc. ## 197;

200) and replied. (Doc. ## 207; 208). The Motions are now

ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the Court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the Court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

[conclusory] allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed[.]” (citation omitted)).

III. Analysis

Both parties have filed Motions for Summary Judgment.

(Doc. ## 186; 187). The Court will address Doctors Hospital’s

Motion first, followed by Day’s Motion.

A. Doctors Hospital’s Motion

Doctors Hospital argues that it is entitled to an entry

of judgment in its favor on all remaining counts of the second

amended complaint. (Doc. # 194 at 1). The Court will address

each of those counts in turn.

1. Deceptive Act FDUTPA Violation

In Count I, Day alleges that Doctors Hospital violated

FDUTPA by “actively, willfully, and deceptively

represent[ing] that the prices listed on the [chargemaster]

are the ‘customary charges,’ rather than an artificially

inflated list that only applies to a certain class of people,

by publishing it on [their] website and in incorporating it

into the [COA].” (Doc. # 46 at ¶ 92). Day avers that he

“relied on this deceptive representation when [he] signed the

[COA] and paid [the Hospital’s] bills for PIP covered

emergency services,” thereby causing him to “become obligated

to pay excessive and artificially inflated medical bills . .

. or become obligated to pay other health care providers out-

of-pocket because [the Hospital’s] inflated rates prematurely

exhausted [Day’s] PIP coverage.” (Id. at ¶ 94-95).

In its Motion, Doctors Hospital argues that it is

entitled to judgment in its favor on Count I for the following

reasons: (1) “Day was never misled” since “the undisputed

evidence shows that [he] never visited the Hospital’s

website, nor did he review the payment provisions” in the COA

and (2) the FDUTPA claim is precluded by a statutory safe

harbor. (Doc. # 194 at 1-2). Day responds that a reasonable

consumer would be deceived by the COA and that the safe harbor

does not apply. (Doc. # 205 at 14-15).

“To prevail on [an] FDUTPA claim, a plaintiff must show

(1) a deceptive act or unfair practice, (2) causation, and

(3) actual damages.” State Farm Mut. Auto. Ins. Co. v.

Performance Orthopaedics & Neurosurgery, LLC, 315 F. Supp. 3d

1291, 1300 (S.D. Fla. 2018). In this count, Day argues only

that Doctors Hospital’s conduct constituted a deceptive act.

(Doc. # 46 at ¶ 86-97); (Doc. # 186 at 24) (arguing for

summary judgment on Count I based solely on Doctors Hospital’s

conduct constituting a deceptive act).

Under FDUTPA, “deception occurs if there is a

representation, omission, or practice that is likely to

mislead the consumer acting reasonably in the circumstances,

to the consumer’s detriment.” PNR, Inc. v. Beacon Prop. Mgmt.,

Inc., 842 So.2d 773, 777 (Fla. 2003) (citation omitted). “This

standard requires a showing of ‘probable, not possible,

deception’ that is ‘likely to cause injury to a reasonable

relying consumer.’” Zlotnick v. Premier Sales Grp., Inc., 480

F.3d 1281, 1284 (11th Cir. 2007) (citation omitted). “The

test is an objective one and does not require a plaintiff to

show actual reliance on the deceptive or unfair

representation or omission.” Maor v. Dollar Thrifty Auto.

Grp., Inc., No. 15-22959-CIV-MARTINEZ-GOODMAN, 2018 WL

4698512, at *6 (S.D. Fla. Sept. 30, 2018). Still, “[w]hile

proof of actual reliance is unnecessary, the first element of

[an] FDUTPA claim is only satisfied by evaluating a reasonable

consumer in the same circumstances as the plaintiff. The

modification of ‘acting reasonably’ by ‘in the same

circumstances’ indicates a hybrid standard that may be

objectively established as to mindset but subjectively

established as to context.” Deere Constr. v. Cemex Constr.

Materials Fla., LLC, No. 15-24375-CIV-ALTONAGA/O’Sullivan,

2016 WL 8542540, at *3 (S.D. Fla. Dec. 1, 2016) (citation

omitted).

Here, Day alleges that Doctors Hospital deceptively

represented that the prices listed in its chargemaster, which

were incorporated in the COA, were the customary charges,

insofar as those numbers would be used to determine a PIP-

insured patient’s payment obligations. (Doc. # 46 at ¶ 94-

95). However, the COA – which is provided to Doctors Hospital

patients, including Day – features no such provision. (Doc.

# 187-3). To the contrary, the COA explicitly states that

both insured and uninsured patients are expected to pay rates

other than those listed in the chargemaster:

If supplies and services are provided to Patient

who has coverage through a governmental program or

through certain private health insurance plans, the

hospital may accept a discounted payment for those

supplies and services. In this event, any payment

required from the Patient or Guarantor will be

determined by the terms of the governmental program

or private health insurance plan. If the Patient is

uninsured and not covered by a governmental

program, the Patient may be eligible to have his or

her account discounted or forgiven under the

hospital’s uninsured discount or charity care

program in effect at the time of treatment.

(Id. at 2) (emphases added). Therefore, with the evidence

provided, no reasonable consumer would understand the COA to

stand for the proposition that all Doctors Hospital patients

pay the same chargemaster rates or that such rates necessarily

constitute “customary charges.” (Doc. # 46 at ¶ 92).

Because no reasonable consumer could be deceived by the

Hospital’s conduct or the COA, under the circumstances

alleged in Count I, the Hospital’s Motion is granted as to

this requested relief. See Zlotnick, 480 F.3d at 1287

(affirming the dismissal of an FDUTPA claim where the words

of the contract removed the “possibility that a reasonable

purchaser would be misled”).

2. Unfair Practice FDUTPA Violation

In Count II, Day alleges a second violation of FDUTPA,

arguing that Doctors Hospital’s billing methods constitute an

unfair practice. (Doc. # 46 at ¶ 98-112); (Doc. # 186 at 24)

(arguing for summary judgment on Count II based solely on

Doctors Hospital’s conduct constituting an unfair practice).

Day posits that Doctors Hospital charged “exorbitant and

unreasonable rates for PIP-covered healthcare services” in

violation of the PIP statute, “which prohibits [hospitals]

from charging more than a ‘reasonable amount’ for emergency

medical services.” (Doc. # 46 at ¶ 106-07). Day further posits

that Doctors Hospital’s “practice of not providing patients

with itemized bills nor informing patient of their right to

obtain itemized bills” violates FDUTPA. (Id. at ¶ 105).

In its Motion, Doctors Hospital argues that it is

entitled to judgment in its favor on Count II for the

following reasons: (1) Day “has failed to adduce any evidence

that his charges were unreasonable,” and (2) the FDUTPA claim

is precluded by a statutory safe harbor. (Doc. # 194 at 12,

16). Day responds that the evidence proves that Doctors

Hospital’s charges are inherently unreasonable and again

argues that the safe harbor is inapplicable. (Doc. # 205 at

5, 15).

To prevail on an unfair practice FDUTPA claim, a

plaintiff must show (1) an unfair practice, (2) causation,

and (3) actual damages. State Farm, 315 F. Supp. 3d at 1300.

“[A]n unfair practice is one that ‘offends established public

policy’ or is ‘immoral, unethical, oppressive, unscrupulous

or substantially injurious to consumers.’” Bookworld Trade,

Inc. v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350,

1364 (M.D. Fla. 2007) (quoting Rollins, Inc. v. Butland, 951

So.2d 860, 869 (Fla. 2d DCA 2006)).

Because Count II is primarily based on the premise that

Doctors Hospital charged him an unreasonable rate for

emergency medical care, the Court first turns to this issue.

Under Florida law, “no single factor can be used to determine

the reasonableness of [a hospital’s] charges.” Colomar v.

Mercy Hosp., Inc., 461 F. Supp. 2d 1265, 1269 (S.D. Fla. 2006)

(hereinafter, Colomar I). Instead, “several non-exclusive

factors are relevant to the inquiry,” including: “(1) an

analysis of the relevant market for hospital services

(including the rates charged by other similarly situated

hospitals for similar services); (2) the usual and customary

rate [the hospital] charges and receives for its hospital

services; and (3) [the hospital’s] internal cost structure.”

Id. The Court will address each of these non-exhaustive

factors in turn.

a. Market Analysis

“Evidence of what other hospitals in the same market

would have charged and accepted for the same services is [a]

factor in the reasonableness inquiry.” Colomar v. Mercy

Hosp., Inc., No. 05-22409-CIV, 2007 WL 2083562, at *5 (S.D.

Fla. July 20, 2007) (hereinafter, Colomar II). In his response

to the instant Motion, Day offers the pricing of two other

hospitals located near Doctors Hospital. (Doc. # 205 at 7

n.1). First, Sarasota Memorial Hospital allegedly charges

“approximately $550.00 for [a] shoulder x-ray and $450.00 for

[a] level 3 emergency visit.” (Id.). “Venice Regional

Bayfront currently charges around $614.89 for a shoulder x-

ray.” (Id.). By comparison, Doctors Hospital charged Day

$1,471.00 for a left-shoulder x-ray and $1,621 for a level

three emergency visit. (Doc. # 205 at 7; Doc. # 194-10).

According to Day, these charges are “two to three times more

than similar providers in the community.” (Doc. # 205 at 7).

Doctors Hospital counters that the Court cannot consider

these prices, and that Day thus offers no evidence as to

market analysis, because these prices are unauthenticated.

(Doc. # 211 at 10). Additionally, the Hospital posits that

the prices constitute inadmissible hearsay under Federal Rule

of Evidence 801 and Federal Rule of Civil Procedure 56(c)(2).

(Id.). Day responds that these price lists are admissible as

they fall under the “market reports” hearsay exception under

Federal Rule of Evidence 803(17). (Doc. # 207 at 3).

Declarations opposing a motion for summary judgment must

“be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant

is competent to testify on the matters stated.” Fed. R. Civ.

P. 56(c)(4). Thus, unauthenticated documents generally cannot

be considered on a motion for summary judgment. Mobile

Telecomms. Techs. LLC v. United Parcel Serv., Inc., No. 1:12-

cv-03222-AT, 2015 WL 11199065, at *7 (N.D. Ga. Mar. 25, 2015).

However, “courts may consider unauthenticated documents on a

motion for summary judgment if it is apparent that they will

be admissible at trial.” Edwards v. Gwinnett Cnty. Sch. Dist.,

977 F. Supp. 2d 1322, 1329 (N.D. Ga. 2013) (citation omitted).

Similar to unauthenticated evidence, hearsay statements

typically “cannot be considered on a motion for summary

judgment.” Verna v. Pub. Tr. of Miami-Dade Cnty., 539 F. Supp.

2d 1340, 1350 (S.D. Fla. 2008). But again, “a district court

may consider a hearsay statement for summary judgment

purposes, provided the statement can be reduced to [an]

admissible form at trial.” Action Sec. Serv., Inc. v. Am.

Online, Inc., No. 6:03-cv-1170-ACC-DAB, 2005 WL 1529578, at

*1 (M.D. Fla. June 28, 2005).

Although Day does address the hearsay issue, arguing

that the price lists fall under the exception to the rule

against hearsay found in Federal Rule of Evidence 803(17),

which excludes “[m]arket quotations, lists, directories, or

other compilations that are generally relied on by the public

or by persons in particular occupations,” he does not address

the authentication issue. Fed. R. Evid. 803(17); (Doc. # 207

at 3). Because Day offers no support for the contention that

this evidence – which is supported only by a weblink to the

hospitals’ websites in two footnotes of his response to the

instant Motion – could be authenticated at trial, it cannot

be considered at the summary judgment stage. (Doc. # 186 at

17 n.3, n.4); see Hill v. Lazarou Enters., Inc., No. 10-

61479-CIV, 2011 WL 124630, at *3 (S.D. Fla. Jan. 14, 2011)

(“The police report (Exhibit 4) filed by the defendant in the

instant case is unauthenticated. The defendant has not made

a prima facie case that the police report (Exhibit 4) is what

it purports to be. Accordingly, the Court should not consider

the unauthenticated police report (Exhibit 4) in ruling on

the defendant’s motion for summary judgment.” (citations

omitted)); Bowe v. Pub. Storage, 106 F. Supp. 3d 1252, 1262

(S.D. Fla. 2015) (“Ms. Haga’s declaration does not even state

who accessed the website[,] . . . and no SafeStor employee

has been deposed regarding the contents of its website.

Accordingly, Exhibit 11 to Ms. Haga’s declaration will be

stricken.” (emphasis omitted)); Z Indus. USA, LLC v.

Circuitronix, LLC, No. 0:17-cv-60727-UU, 2018 WL 3412854, at

*16 (S.D. Fla. June 20, 2018) (“Chrom has provided no

authenticating testimony, nor even a screenshot of the

website, that would permit the Court to determine that the

URLs Chrom cites contain the alleged representation, nor that

the URLs currently hyperlink to the same websites that Chrom

visited on the date of the Counterclaim in October, 2017.”

(emphasis in original)).

Assuming, however, that this evidence could be rendered

admissible, the Court echoes some of the Hospital’s concerns

regarding its helpfulness. First, the prices derive from

current price lists, whereas Day’s treatment occurred in

2017. (Doc. # 205 at 7 n.1) (noting that these price lists

reflect what the hospitals “currently” charge). In theory,

the other hospitals’ fees for these services could have been

higher in 2017. Additionally, it may very well be true that

these hospitals have different costs, such that they are able

to charge less for these services. Indeed, Day provides no

evidence that the other hospitals are similarly situated to

Doctors Hospital, other than their location. And, it is also

possible that these billing codes include different services

– such that a “level three emergency visit” would include

different treatments at Doctors Hospital and at Sarasota

Memorial. (Doc. # 199 at ¶ 8).

Still, if this evidence could be considered, and viewing

the evidence in the light most favorable to Day, a reasonable

jury could find that the differences between these hospitals’

prices helps support an inference that Doctors Hospital’s

charges are unreasonable. See Colomar I, 461 F. Supp. 2d at

1270 (“There is little doubt that what the market charges for

similar services is one relevant measure of

reasonableness.”).

b. Differential Pricing

The Court turns to the next factor in the reasonableness

inquiry – the “rate a hospital charges other patients for the

same services.” Colomar II, 2007 WL 2083562, at *5.

“[C]ombined with other evidence, differential pricing might

establish that certain hospital charges are unreasonable.”

Id. at *5 (citing Hillsborough Cnty. Hosp. Auth. v. Fernandez,

664 So.2d 1071, 1071-72 (Fla. 2d DCA 1995)).

Here, Day offers two types of differential rates: (1)

the amounts Medicare would have paid, and (2) those that

certain private health insurance companies would have paid.

(Doc. # 205 at 7-12; Doc. # 186 at 8, 17-19). As an initial

matter, the Court notes that the Medicare rates Day offers

are unhelpful for these purposes, as they derive from

physician fee schedules, rather than hospital schedules.

(Doc. # 211 at 11); see Am. Hosp. Ass’n v. Azar, 964 F.3d

1230, 1235 (D.C. Cir. 2020) (“Physician offices are generally

reimbursed at a lower rate for a given service than hospitals,

because hospitals receive a separate ‘facility’ rate

inapplicable to freestanding physician practices.”); All Fam.

Clinic of Daytona Beach Inc. v. State Farm Mut. Auto. Ins.

Co., 685 F. Supp. 2d 1297, 1301 (S.D. Fla. 2010) (explaining

that the “Outpatient Prospective Payment System” used for

hospital reimbursements “is an entirely separate component of

the Medicare B program from the participant physicians

schedule”). Day does not appear to address this issue.1

Turning to private insurance contracts, Day offers

Doctors Hospital’s contract with one insurer (“Insurer A”)

for certain outpatient services. (Doc. # 205 at 9). Under

this contract, a patient would pay $965.00 for the same

services Day received – as compared to the $2,332.50 he was

charged. (Id.; Doc. # 194-3 at 9). Although Doctors Hospital

argues that these outpatient rates are not comparable to the

emergency care received by Day, the Hospital’s own expert

analyzed the Insurer A contract “to determine the applicable

rate for the services provided to . . . Day.” (Id. at 8).

Still, this evidence of a lower rate is rebutted by the

other managed care contracts. Indeed, if Day was covered by

another private insurer’s policy (“Insurer B”), the rate

would be $2,946.00 – which is more than the $2,332.50 Day was

1. Although Day argues in his reply to his own Motion that,

based on certain overall net-to-gross ratios, the fees

reimbursed by Medicare would be significantly lower than

those charged to Day, the Court does not find this method of

calculation reliable without more information, given that no

party avers that all services provide the same or even similar

profit margins. (Doc. # 207 at 6). Still, even taking this

information as true, considering the only admissible evidence

available, the Court reiterates the holding that

“differential pricing is not enough, ‘standing alone,’ to

prove unreasonableness.” Colomar II, 2007 WL 2083562, at *5

(quoting Fernandez, 664 So.2d at 1072); see also Colomar I,

461 F. Supp. 2d at 1269 (“[N]o single factor can be used to

determine the reasonableness of [a hospital’s] charges.”).

expected to pay following the PIP statutory 25% discount.

(Doc. # 194-3 at 9). Similarly, if Day were covered by yet

another insurer (“Insurer C”), the rate would have been

$2,070, which is not significantly higher than Day’s rate.

(Id.). Considering that managed care contracts bring a number

of benefits to hospitals, including by “steering significant

non-emergency volume to the hospital,” it is not surprising

that certain health insurance contracts provide for lesser

rates accepted by the Hospital than what Day was expected to

pay. (Doc. # 194-3 at 11).

And, although Day argues that these other contracts

should not be considered because they involved bundled

services, the Court does not find this argument compelling.

(Doc. # 205 at 10). Although the contracts with Insurer B and

C are for bundled services, what matters for comparison

purposes is not how these services are delineated in the

contracts themselves – but what a patient would have been

expected to pay with PIP insurance versus with private health

insurance, and those are not dissimilar. And, if the Court

took Day’s argument to its logical conclusion, this would

essentially eradicate consideration of differential pricing

as to private insurers, which generally contract with

hospitals on fees based on service bundles, rather than on a

line-by-line basis, as noted by Day’s own expert, Kevin

McCarty. (Doc. # 193-1 at 151:13-21) (“Q. Is it your position

that commercial health insurance companies are reimbursing

for [emergency department] visits on a line-by-line basis? A.

No, it’s not. No. I said earlier that when they have a global

contract, they may not even be looking at the [current

procedural terminology medical billing (“CPT”)] codes.

They’re moving away from CPT codes.”).

Because several insurance companies are expected to pay

similar rates to that of Day for the same or similar services,

the Court finds that no reasonable jury could conclude that

that the Hospital’s rates are unreasonable by virtue of

differential pricing. Indeed, that argument is negated by the

evidence presented. Accordingly, this factor favors the

relief requested in Doctors Hospital’s Motion.

c. Internal Cost Structure

Lastly, the Court considers the Hospital’s internal cost

structure. Colomar II, 2007 WL 2083562, at *6. However, Day

has proffered no evidence of the Hospital’s cost structure

that might lend to a conclusion that its charges are

unreasonable. Indeed, Day only argues in its own Motion that

Doctors Hospital “utilizes an across-the-board rate increase

that only considers specific costs with regard to supplies

and pharmaceuticals.” (Doc. # 186 at 19). But the Court fails

to see how across-the-board increases are unreasonable,

giving that hospitals should factor the increase of expenses,

such as salary and overhead increases, in calculating service

charges. Accordingly, this factor favors Doctors Hospital.

d. Application of the Colomar Factors

The Court has determined that, even viewing the facts in

the light most favorable to Day, no reasonable jury could

conclude that Doctors Hospital’s internal cost structure or

pricing comparisons make its charged rates unreasonable.

Although the market-analysis factor might point toward such

a result, the Court has found such evidence inadmissible.

Even so, “[w]hile evidence of what others in the market charge

for similar services is a necessary factor[,] it is not a

sufficient one in and of itself.” Colomar I, 461 F. Supp. 2d

at 1271. Indeed, “no single factor can be used to determine

the reasonableness of [a hospital’s] charges.” Id. at 1269.

Because Day has offered no proof of any other factor that

might lead a jury to find Doctors Hospital’s charges

unreasonable, Day has failed to demonstrate an unfair

practice under FDUTPA.

And, although Day argues that the Hospital should have

considered the aforementioned Colomar factors in determining

its fees to begin with, this is not what the law says. See

Fla. Stat. § 627.736(5)(a) (“In determining whether a charge

for a particular service, treatment, or otherwise is

reasonable, consideration may be given to evidence of usual

and customary charges and payments accepted by the provider

involved in the dispute, reimbursement levels in the

community and various federal and state medical fee schedules

applicable to motor vehicle and other insurance coverages,

and other information relevant to the reasonableness of the

reimbursement for the service, treatment, or supply.”).

Colomar does not impose additional duties on hospitals not

provided for in the PIP statute. Instead, Colomar explains

factors that may be considered in determining whether a

hospital’s charges are reasonable. See Colomar I, 461 F. Supp.

2d at 1269 (discussing these factors so as to analyze the

reasonableness of the hospital’s charges after-the-fact,

rather than imposing a duty on the hospital to analyze them).

Such a result would place an untenable duty on hospitals to

calculate each of their thousands of services based on these

factors, including market analyses, which they are not

necessarily in the best position to conduct, and

reimbursement levels in the community, which might be

unavailable to hospitals due to confidentiality agreements.

(Doc. # 211 at 8 n.4).

Additionally, as to Day’s argument that Doctors

Hospital’s “practice of not providing patients with itemized

bills nor informing patients of their right to obtain itemized

bills” constitutes an unfair practice under FDUTPA, neither

party highlights any evidence of this practice. (Doc. # 46 at

¶ 105). To the contrary, Day appears to have dropped this

aspect of Count II. See (Doc. # 205 at 17) (“The subject of

Plaintiff’s FDUTPA claims is Doctors Hospital’s deceptive and

unfair practice of charging inherently unreasonable and

unfairly inflated rates. Nowhere in Plaintiff’s FDUTPA claim

is there any claim that Doctors Hospital must provide more

price transparency or further inform patients about what they

might pay for hospital services.”). Accordingly, Doctors

Hospital’s Motion is granted as to Count II.

3. Breach of Contract

In Count III, Day alleges that Doctors Hospital breached

the COA “by charging unreasonable amounts for PIP-covered”

services. (Doc. # 46 at ¶ 118). Because the Court has already

determined that, even making all reasonable inferences in

Day’s favor, he has failed to provide sufficient evidence

demonstrating that the Hospital’s charges are unreasonable,

Day’s breach of contract claim fails as well. Accordingly,

Doctors Hospital’s Motion is granted as to Count III.

4. Declaratory Relief

In Count VI, Day seeks a declaration that Doctors

Hospital’s charges are unreasonable and that he therefore is

not responsible for the charges he has not yet paid. (Doc. #

46 at ¶¶ 136-143; Doc. # 186 at 9). Again, because the Court

has found that, taking the evidence provided, the Hospital’s

charges are not unreasonable, Day’s claim for declaratory

relief fails. Accordingly, Doctors Hospital’s Motion is

granted as to Count VI.

B. Day’s Motion

In Day’s Motion, he seeks an entry of judgment in his

favor on Counts I, II, III, and VI, of the second amended

complaint. (Doc. # 186). Because the Court has already found

it proper to enter judgment in Doctors Hospital’s favor on

all of those remaining counts, Day’s Motion is denied.

IV. Conclusion

The Court finds summary judgment for Doctors Hospital

appropriate as to Count I because Day has failed to show that

a reasonable consumer would be deceived by the Hospital’s

conduct. Summary judgment in Doctors Hospital’s favor is

proper as to Counts II, III, and VI, because Day has failed

to carry his burden of demonstrating that the Hospital’s rates

are unreasonable. Indeed, the evidence provided points to the

contrary.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Sarasota Doctors Hospital, Inc.’s Motion for

Summary Judgment (Doc. # 187) is GRANTED as set forth

herein. Plaintiff David Day’s Motion for Summary

Judgment (Doc. # 186) is DENIED.

(2) The Clerk is directed to enter judgment in favor of

Doctors Hospital and against Day.

(3) Thereafter, the Clerk is directed to close the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

28th day of January, 2021.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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