                                                                                           11/29/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 20, 2018 Session


    EMERGENCY MEDICAL CARE FACILITIES P.C. v. BLUECROSS
           BLUESHIELD OF TENNESSEE INC., ET AL.

                  Appeal from the Circuit Court for Madison County
                      No. C-14-208     Donald H. Allen, Judge



                             No. W2017-02211-COA-R3-CV



D. MICHAEL SWINEY, C.J., dissenting.
       I respectfully dissent from the majority’s decision in this case. I disagree with the
majority’s assertion that “the argument that diagnosis codes cannot be the standard upon
which an emergency is determined for purposes of payment does not somehow make
common issues predominate regarding the claims for which a $50.00 cap provision is
operative.” I would reverse the trial court as I believe that common issue predominates
over all individual issues in this case.
       In my judgment, the majority places too much emphasis on whether the $50 cap
was allowed by law. The central and common issue is whether Defendants breached
their contracts with class members by paying less than the agreed upon fees.
Specifically, Defendants determined first whether the services rendered were emergent or
non-emergent in character based solely upon the final diagnosis regardless of how the
patient presented initially. If the service was categorized by the final diagnostic code as
non-emergent, Defendants capped reimbursement at $50. It is Defendants’ reliance on
the final diagnostic code rather than the patient’s initial presentation to decide whether to
apply the $50 cap for non-emergency services that permeates EMCF’s entire case against
Defendants. However, we need not at this stage decide the merits of that question. We
are tasked here instead with reviewing the trial court’s decision on class certification.
       In Wofford v. M.J. Edwards & Sons Funeral Home, Inc., 528 S.W.3d 524 (Tenn.
Ct. App. 2017), we affirmed a trial court’s grant of class certification. In that case, a
number of funeral homes were sued by certain next of kin and contract signees for
leaving human remains at an unlicensed cemetery. The trial court conducted the
necessary rigorous analysis and certified the plaintiffs as a class. The funeral homes
appealed to this Court, which affirmed the trial court. In relevant part, we held:
       The central issue in this case moving forward is whether a funeral home has
       a duty beyond dropping off human remains at the cemetery. This issue is
       common to all parties in this case. The Trial Court found it better to
       proceed toward adjudicating that question as a class action. Given that the
       alternative potentially is hundreds of separate trials with contradictory
       results, we agree.
Wofford, 528 S.W.3d at 543. Likewise, in the present case, whether Defendants breached
their contracts by relying on a final diagnosis to determine whether to apply the $50 cap
for non-emergency services is the central issue common throughout the entire class. In
my view, any individualized differences are less significant than they were in Wofford
because, for example, the potential damages can be calculated by EMCF’s proposed
method. Additionally, “[i]t is well established that the existence of separate issues of law
and fact, particularly regarding damages, do not negate class action certification.”
Meighan v. U.S. Sprint Comm’cns Co., 924 S.W.2d 632, 637 (Tenn. 1996) (emphasis
added). Similarly, any defenses such as waiver all would sound in common evidence.
        The majority notes correctly that our standard of review for this denial of class
certification is abuse of discretion, a rather deferential standard. However, discretionary
decisions are not completely immune from review. I, respectfully, dissent from the
majority’s opinion. I would reverse the decision of the trial court.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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