      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STEPHEN PITELL, on behalf of               )
himself and all others similarly situated, )
                                           )     No. 76720-8-1
                     Appellant,            )
                                           )     DIVISION ONE
                   v.                      )
                                           )     PUBLISHED OPINION
KING COUNTY PUBLIC HOSPITAL                )
DISTRICT NO. 2, d/b/a                      )
EVERGREENHEALTH; and DOES 1 )
through 25, inclusive,                     )
                                           )
                     Respondent.           )     FILED: August 13, 2018
                                           )

       DWYER, J. — Stephen Pitell sought emergency medical care at

EvergreenHealth. He signed a consent to care form in which he agreed to pay

the balance due on his account. But instead of paying, he filed a lawsuit against

EvergreenHealth, claiming that the consent to care agreement lacked a definite

price term and was therefore unenforceable. As have courts across the country,

we hold that the contract price term is supplied by EvergreenHealth's standard

list of charges (its "chargemaster"). Because the price term is definite, the

consent to care agreement is enforceable. Accordingly, we affirm.

                                          1

       Stephen Pitell was admitted to EvergreenHealth with abdominal pain on

January 2, 2015. At the time, he was uninsured and did not qualify for Medicare
No. 76720-8-1/2


or Medicaid. Upon his arrival at the hospital, Pitell signed a consent to care form

that stated, in pertinent part:

       I agree, whether I sign as representative or as patient, that in
       consideration of the services to be rendered to the patient, I agree
       to be personally responsible for the balance due after any
       applicable insurance payment(s).

The consent form went on to state,"You are responsible for payment of your

account" and "At my request, staff will provide me with an estimate of the billed

charges for services I am likely to receive." Pitell did not request an estimate of

charges.

       Following his treatment and discharge, EvergreenHealth billed Pitell

$32,324. Given that he had over $50,000 in his bank account, Pitell's request for

charity care status was denied. The hospital did, however, reduce the charge by

20 percent because Pitell was uninsured, which lowered the amount due to

$25,859.20. For the same services, four of the five largest commercial insurers

would pay more: $27,632, $28,157, $28,228, or $33,138.

       EvergreenHealth billed Pitell based on the hospital's list of charges, which

is generally referred to as a "chargemaster." Pitell did not pay the balance due

on his account. Instead, he filed suit against EvergreenHealth on behalf of a

class of similarly situated individuals. In his suit, he requested a declaratory

judgment that the consent form is unenforceable. He also alleged causes of

action for negligent and intentional concealment. EvergreenHealth

counterclaimed to seek collection of the unpaid bill as well as for the expenses of

defending a frivolous action. The trial court granted EvergreenHealth's motion


                                          2
No. 76720-8-1/3


for summary judgment, dismissing the case and ordering Pitell to pay the amount

of the discounted bill plus costs and fees.1 Pitell appeals.

                                                II

                                                A

        We review summary judgment de novo. Hearst Commc'ns, Inc. v. Seattle

Times Co., 154 Wn.2d 493, 501, 115 P.3d 262(2005). Summary judgment is

proper where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Hertog v. City of Seattle, 138 Wn.2d 265,

275, 979 P.2d 400(1999). We engage in the same inquiry as the trial court and

consider the facts and reasonable inferences therefrom in the light most

favorable to the nonmoving party. Hertoq, 138 Wn.2d at 275.

        The purpose of contract interpretation is to ascertain the intent of the

parties. Roats v. Blakely Island Maint. Comm'n, Inc., 169 Wn. App. 263, 274,

279 P.3d 943(2012). Washington courts "follow the objective manifestation

theory of contracts." Hearst Commc'ns, Inc., 154 Wn.2d at 503. When

interpreting an agreement, we focus on its objective manifestations to determine

the parties' intent. Martin v. Smith, 192 Wn. App. 527, 532, 368 P.3d 227, review

denied, 186 Wn.2d 1011, 380 P.3d 501 (2016). "We impute an intention

corresponding to the reasonable meaning of the words used." Hearst




        1 Pitell claims that he was charged an unreasonable amount for the services received.
However, in the trial court, he provided no evidence as to what amount would be reasonable. In
addition, it is worth noting that, while he admits that he owes a reasonable amount, Pitell has
never paid a dime for the services rendered—either to EvergreenHealth or into the registry of the
court. At all times, he has had the ability to pay.


                                                3
No. 76720-8-1/4


Commc'ns, Inc., 154 Wn.2d at 503 (citing Lvnott v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 123 Wn.2d 678, 684, 871 P.2d 146 (1994)).

                                                 B

        Pitell argues that the consent to care agreement is not enforceable

because the agreement's reference to a "balance due" is an open price term.2

EvergreenHealth argues that because the chargemaster supplies the price term

in the consent to care form, the contract is enforceable.

        Like other hospitals around the country, EvergreenHealth maintains a

chargemaster that it uses to bill patients for the particular services received. It

includes over 16,000 line items that establish the standard charge for each

service. Deductions from these rates are common, resulting from negotiations

with insurers, set government rates, charity care, prompt pay discounts, or

uninsured discounts.

        In the context of a contract for the provision of and payment for
        medical services, a hospital's chargemaster rates serve as the
        basis for its pricing. Each hospital sets its own chargemaster rates,
        thus each hospital's chargemaster is unique. It is from these
        chargemaster prices that insurance companies negotiate with
        hospitals for discounts for their policyholders. And other
        reimbursement schemes are based in part on hospital
        chargemaster rates. Even the 2010 Federal Patient Protection and
        Affordable Care Act recognized the centrality of chargemasters to
        hospital billing practices. See Timothy D. Martin, The Impact of

         2 Pitell was required by law to have health insurance at the time in question. He had the
means to purchase such insurance. Instead, he made an economic decision to forego
compliance with the law.
          Pitell now argues that an equitable doctrine—quantum meruit—should govern the
determination of the amount he owes. By making an economic decision to be uninsured, in
violation of applicable law, Pitell clearly behaved inequitably. Whether equity can be invoked by
one who behaved inequitably is an issue that appears at the forefront of this dispute. However,
Pitell neither briefed nor even recognized this issue. Because we can decide this case on other
grounds, we need not discuss this issue further.


                                                4
No. 76720-8-1/5


        Healthcare Reform on Revenue—Cycle Management and Claim
        Coding, 4 J. Health & Life Sci. L. 159, 175(2011)(recognizing that
        the Act requires hospitals to publish their chargemasters annually).

Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 310(Ind. 2012)(citations

omitted). When billing a patient,

        "[it is only after each individual is charged according to the
        Chargemasters that this amount is decreased accordingly by any
        health coverage program benefits. . . .[T]he base price is the same
        for each individual pursuant to the Chargemasters. It is only the
        deductions from the base price that may vary from patient to
        patient."

Limberq v. Sanford Med. Ctr. Fargo, 881 N.W.2d 658,662(N.D. 2016)(second

alteration in original).

        Many courts have entertained, and almost uniformly rejected, challenges

similar to those advanced here. These courts "recognize[] the uniqueness of the

market for health care services delivered by hospitals." Allen, 980 N.E.2d at 311.

They hold that a contract's reference to a hospital's "rates" or "charges" are

sufficiently definite to refer to a chargemaster list for the price term.3




         3 In addition to the cases discussed in the text, the following cases have affirmed the
enforceability of contracts where a chargemaster supplies the price term: Harrison v. Christus St.
Patrick Hosp., 430 F.Supp.2d. 591, 595(W.D. La. 2006)(concluding "regular rates and terms" did
not create open-ended contract); Cox v. Athens Red'I Med. Ctr., Inc., 631 S.E.2d 792, 796(Ga.
Ct. App. 2006)(finding "in accordance with the rates and terms of the hospital" is a definite price
term); Morrell v. Wellstar Health Sys., Inc., 633 S.E.2d 68, 72(Ga. Ct. App. 2006)("[T]he
agreement in the contracts to pay for 'all charges' unambiguously referred to the written summary
of specific charges ... which established the price terms on which the parties intended to bind
themselves."); Satterfield v. S. Reg'l Health Sys., Inc., 634 S.E.2d 530, 531 (Ga. Ct. App. 2006);
Holland v. Trinity Health Care Corp., 791 N.W.2d 724, 730(Mich. Ct. App. 2010)(finding "usual
and customary charges" unambiguously referred to the chargemaster).


                                                5
No. 76720-8-1/6


       For example, in DiCarlo v. St. Mary Hospital, 530 F.3d 255, 264(3d Cir.

2008), the court concluded that the contract term, "all charges" referred to the

chargemaster, and was therefore not an open price term.

      The price term "all charges" is certainly less precise than [the] price
      term of the ordinary contract for goods or services in that it does not
      specify an exact amount to be paid. It is, however, the only
      practical way in which the obligations of the patient to pay can be
      set forth, given the fact that nobody yet knows just what condition
      the patient has, and what treatments will be necessary to remedy
      what ails him or her. Besides handing the patient an inches-high
      stack of papers detailing the hospital's charges for each and every
      conceivable service, which he or she could not possibly read and
      understand before agreeing to treatment, the form contract
      employed by St. Mary's is the only way to communicate to a patient
      the nature of his or her financial obligations to the hospital.
      Furthermore, "it is incongruous to assert that[a hospital] breached
      the contract by fully performing its obligation to provide medical
      treatment to the plaintiff[]and then sending [him][an] invoice[]for
      charges not covered by insurance."

DiCarlo, 530 F.3d at 264 (footnote omitted)(quoting Burton v. William Beaumont

Hosp., 373 F.Supp.2d 707, 719(E.D. Mich. 2005)).

       Similarly, in Shelton v. Duke University Health System, Inc., 633 S.E.2d

113, 116(N.C. Ct. App. 2006), the court held that the contract term "regular

rates" did not leave the price term open. Rather, it was "'definite and certain or

capable of being made so" by reference to the chargemaster. Shelton, 633

S.E.2d at 116(2006)(quoting Elliott v. Duke Univ., Inc., 311 S.E.2d 632,636

(N.C. Ct. App. 1984)). The court reasoned that

      [i]t is common, almost expected, that a course of treatment
      embarked upon will, through unforeseen circumstances, be
      amended, altered, enhanced, or terminated altogether, and a
      completely new course of treatment begun. In light of this, it would
      be impossible for a hospital to fully and accurately estimate all of
      the treatments and costs for every patient before treatment has

                                         6
No. 76720-8-1/7


      begun. It would be cumbersome, and against patients' interests, to
      require hospitals to seek new authorization from a patient whenever
      some medical circumstance requires a new course of treatment.
      For this reason, it is entirely reasonable and predictable that
      patients would agree to pay the hospital's regular rates for
      whatever services might be necessary in treating their particular
      ailments or afflictions.

Shelton, 633 S.E.2d at 116.

       In Allen v. Clarian Health Partners, Inc., hospital patients challenged their

medical bills, arguing that the contract they signed had an indefinite price term.

The contract in question stated, "In consideration of services delivered by

Clarian North Medical Center and/or the physicians, the undersigned guarantees

payment of the account, and agrees to pay the same upon discharge." Allen

980 N.E.2d at 309. In holding that "the account" impliedly referenced the

chargemaster, the court reasoned,

      A contract need not declare a specific. .. dollar amount for goods
      or services in order to be enforceable. See ... Restatement
      (Second) Contracts § 4, illus. 1 ("A telephones to his grocer,'Send
      me a ten-pound bag of flour.' The grocer sends it. A has thereby
      promised to pay the grocer's current price therefor."). In the context
      of contracts providing for health care services precision concerning
      price is close to impossible. . .. [O]mitting a specific dollar figure is
      "the only practical way in which the obligations of the patient to pay
      can be set forth, given the fact that nobody yet knows just what
      condition the patient has, and what treatments will be necessary to
      remedy what ails him or her."

Allen, 980 N.E.2d at 310 (quoting DiCarlo, 530 F.3d at 264).

      In so holding, the court aligned itself with numerous similar opinions.

      Patients contend their promise to pay "the account" for treatment is
      indefinite and therefore cannot constitute a price term for the
      hospital's services. We disagree. Many courts have addressed
      contracts similar to those of Patients' and most have held that price
      terms in these contracts, while imprecise, are not sufficiently

                                         7
No. 76720-8-1/8


      indefinite to justify imposition of a "reasonable" price standard. For
      example, the Third Circuit held that a patient's promise to pay "all
      charges and collection costs for services rendered" was not
      indefinite, and "can only refer to [the hospital's] uniform charges set
      forth in its Chargemaster." DiCarlo, 530 F.3d at 264. Other courts
      have reached similar conclusions. See, e.g., Banner Health v.
      Med. Say. Ins. Co., 216 Ariz. 146, 163 P.3d 1096, 1101 (Ariz. Ct.
      App. 2007)(finding that patients who agreed to "pay the account"
      agreed to pay charges billed in accordance with the hospital's
      chargemaster that was filed with the state health department
      pursuant to statute); Holland v. Trinity Health Care Corp., 287 Mich.
      App. 524, 791 N.W.2d 724, 730(2010)(concluding the phrase
      "usual and customary charges" in hospital's contract with a patient
      "unambiguously refers to the 'Charge Master"); Shelton v. Duke
      Univ. Health Sys. Inc., 179 N.C. App. 120, 633 S.E.2d 113, 114,
      116-17(2006)(finding the language "regular rates and terms of the
      Hospital" not to be an open price term where the prices were set
      forth in the hospital's chargemaster), review denied; Nygaard v.
      Sioux Valley Hosp. & Health Sys., 731 N.W.2d 184, 188-89, 191
      (S.D. 2007)(interpreting as definite a price term requiring patient to
      pay "unspecified and undiscounted charges for medical care" which
      were "pre-set by [the hospital] in its sole discretion").

Allen, 980 N.E.2d at 310-11.

       While these cases examined somewhat different contract language than

that in EvergreenHealth's contract, their reasoning is instructive. Pitell agreed to

pay "the balance due" and was informed that he was "responsible for payment of

[his] account." This reference to an "account" reflects that the parties understood

that Pitell would be charged for the services received, and that the amount

charged would be determined by an extant set list of prices. In addition, the

contract notified Pitell that he could request an estimate of charges, which further

acknowledged the existence of a list of prices from which an estimate could be

constructed. The contract language demonstrates the parties' mutual

understanding that the amount owed by Pitell was definite or capable of being



                                         8
No. 76720-8-1/9


made so by reference to an extant list of charges—in this case, the

chargemaster.

       Pitell cites to a few cases in support of his argument that the contract's

price term is indefinite and therefore unenforceable. None are persuasive. In

Washington Chocolate Co. v. Canterbury Candy Makers, Inc., 18 Wn.2d 79, 138

P.2d 195 (1943), the sale price in a contract varied by buyer and was not tied to

market rates. The court concluded that the price was left to the unrestricted and

arbitrary determination of the seller, and was therefore indefinite. But here,

EvergreenHealth does not have unlimited discretion to charge patients for

services received. It does so based on the chargemaster, with departures from

those rates set in advance by negotiation or regulation. Pitell also cites to

Heaton v. Imus, 21 Wn. App. 914, 587 P.2d 602(1978), reversed on other

grounds, 93 Wn.2d 249,608 P.2d 631 (1980), but that case merely states that

the absence of a price term requires a quantum meruit analysis. These cases

are not helpful.

       Additionally, Pitell cites to Western Washington Corp. of Seventh-Day

Adventists v. Ferrellgas, Inc., 102 Wn. App. 488, 7 P.3d 861 (2000), for the

proposition that external provisions to an agreement must be incorporated by

clear and unequivocal reference. But here, the parties did not attempt to

incorporate a list of charges by reference. Rather, as set forth above, the

contract's reference to an "account" refers to EvergreenHealth's uniform charges,

as set forth in its chargemaster. It was not necessary to incorporate the

chargemaster by further reference.

                                         9
No. 76720-8-1/10


                                         C

       Were we to resort to extrinsic evidence, the result here would be the

same. The available evidence plainly supports that the parties mutually assented

to a price term supplied by the chargemaster.

       We may consider extrinsic evidence to assist in ascertaining the intent of

the parties in entering into a contract, regardless of whether the language used in

the writings is deemed ambiguous. Hearst Commc'ns, Inc., 154 Wn.2d at 502

(citing Berg v. Hudesman, 115 Wn.2d 657, 672, 801 P.2d 222(1990)).

      The court may consider (1)the subject matter and objective of the
      contract,(2)the circumstances surrounding the making of the
      contract,(3)the subsequent conduct of the parties to the contract,
      (4) the reasonableness of the parties' respective interpretations,(5)
      statements made by the parties in preliminary negotiations,(6)
      usages of trade, and (7)the course of dealing between the parties.

Spectrum Glass Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 129 Wn. App.

303, 311, 119 P.3d 854(2005)(citing Bern, 115 Wn.2d at 666-68). However, we

may not consider "(1) leividence of a party's unilateral or subjective intent as to

the meaning of a contract word or term;'(2) leividence that would show an

intention independent of the instrument; or'(3) le]vidence that would vary,

contradict or modify the written word." Kelley v. Tonda, 198 Wn. App. 303, 312,

393 P.3d 824(2017)(alterations in original)(quoting Hollis v. Garwall, Inc., 137

Wn.2d 683, 695, 974 P.2d 836 (1999)).

       Pitell testified that he understood how hospitals bill patients. Before his

treatment at EvergreenHealth, Pitell was generally aware that hospitals billed

uninsured patients at different rates than insured patients. After reading an


                                         10
No. 76720-8-1/11


article in Time magazine and seeing a documentary, Pitell understood that

hospitals used a set list of prices to calculate charges to their patients. He

understood that uninsured patients did not benefit from lower rates negotiated by

insurers, given that they had no insurer. At deposition, Pitell testified:

               So when you went in there as an uninsured patient, you
       understood that it was likely that you were going to be charged by
       the hospital using a chargemaster for the services you were
       receiving, correct?
       A: Correct.

       This testimony demonstrates the parties' mutual intent that, after

accepting health care services, Pitell would be charged from an extant list of

charges that provided the prices. Extrinsic evidence supports the enforceability

of the consent to care agreement between Pitell and Evergreen Health.

                                          111

       Pitell argues that the trial court erred in dismissing his causes of action for

"negligent and intentional concealment" because EvergreenHealth had a duty to

disclose the nature of its rates. These are recognized concepts in constructiork, tog
                                                                              cc       _
law, but not in the circumstances of this case. We therefore affirm their     33...
                                                                                    G,
                                                                                   G7    CM
                                                                                         -n
dismissal.                                                                         Ca) - *•-or
                                                                                   21.   Cnrn
                                                                                         => --•••
       Affirmed.
                                                                                   Y?    CW)

                                                                                   a     c
WE CONCUR:




                                          11
