# Day v. Sarasota Doctors Hospital, Inc.

> District Court, M.D. Florida · January 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10106780

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106780

## How later opinions describe it (automated extraction)

- affirming the dismissal of an FDUTPA claim where the words of the contract removed the “possibility that a reasonable purchaser would be misled”
- 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”
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106780. Public record. Not legal advice.