                                                                                 Mar 14 2016, 6:32 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
      Dennis F. Dykhuizen                                       Laura L. Ezzell
      Theodore T. Storer                                        Edward J. Chester
      Reanna L. Kuitse                                          Chester Law Office
      Rothberg Logan & Warsco LLP                               Elkhart, Indiana
      Fort Wayne, Indiana

                                                                ATTORNEY FOR AMICUS CURIAE
                                                                Indiana Trial Lawyers Association
                                                                Thomas A. Manges
                                                                Roby & Manges
                                                                Fort Wayne, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Parkview Hospital, Inc.,                                  March 14, 2016

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1507-PL-959
              v.                                                Appeal from the Allen Circuit Court.
                                                                The Honorable Craig J. Bobay,
                                                                Special Judge.
      Thomas E. Frost by Shirley A.                             Cause No. 02C01-1405-PL-221
      Riggs, his Guardian,
      Appellees-Plaintiffs.




      Friedlander, Senior Judge

[1]   In this interlocutory appeal, we are presented with the issue of whether

      evidence of discounts provided to patients who either have private health


      Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016                 Page 1 of 19
      insurance or are covered by government healthcare reimbursement programs is

      relevant, admissible evidence regarding the determination of reasonable charges

      under the Indiana Hospital Lien Act, Indiana Code Annotated section 32-33-4-

      1, et seq. (West, Westlaw current with P.L. 1-2016 and P.L. 2-2016 of the 2016

      Second Regular Session of the 119th General Assembly). We hold that it is and

      affirm.


[2]   On October 8, 2013, Frost was seriously injured in a collision involving a

      motorcycle he was operating and a pickup truck. Frost was transported by

      airbus to Parkview Hospital where he remained on an in-patient basis until

      November 12, 2013. Parkview did not obtain a signature on any written

      contract from Frost or his personal representative at the time of Frost’s in-

      patient stay there.


[3]   On November 12, 2013, Frost’s condition had improved such that he was

      transferred to the skilled nursing facility at Parkview Randalia. The next day,

      Frost’s mother, Shirley Riggs, who had just recently been appointed as guardian

      over the person and estate of Frost, was approached by Parkview to sign an

      admission agreement, which she did sign. The agreement contained the

      following provision:

              Agreement to Pay
              The patient or person financially responsible for the patient, in
              consideration of the service to be rendered to the patient, is
              obligated to pay the account of the Hospital on all charges for
              services rendered.
      Appellant’s App. p. 44.

      Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016    Page 2 of 19
[4]   Frost remained in skilled nursing until January 7, 2014, when he was

      transferred to in-patient rehabilitation before being discharged on January 28,

      2014.


[5]   Parkview filed its hospital lien with the Allen County Recorder on February 12,

      2014, in the amount of $629,386.50. That amount included charges for Frost’s

      in-patient and skilled nursing care at Parkview. A copy of the lien was mailed

      to the law firm representing Frost in his personal injury action.


[6]   Frost hired a person employed by an independent medical bill reviewing

      company to review the charges. After the discovery of several billing errors,

      Parkview filed a final amended hospital lien in the amount of $625,117.66.


[7]   Frost did not have health insurance at the time he sustained his injuries. As the

      permissive user of the motorcycle, Frost had medical payment insurance

      coverage through State Farm for $5,000.00.


[8]   On May 29, 2014, Frost filed a declaratory judgment action to enforce the

      patient’s remedy under the Indiana Hospital Lien Act, Indiana Code Annotated

      section 32-33-4-1, et seq. (West, Westlaw current with P.L. 1-2016 and P.L. 2-

      2016 of the 2016 Second Regular Session of the 119th General Assembly).

      Under the Act, a patient may contest the lien or the reasonableness of the

      charges by filing a motion to quash or reduce the claim in the court where the

      lien was perfected. Ind. Code Ann. § 32-33-4-4(e) (West, Westlaw current with

      P.L. 1-2016 and P.L. 2-2016 of the 2016 Second Regular Session of the 119th



      Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 3 of 19
      General Assembly). Indiana Code Annotated section 32-33-4-4(e) provides as

      follows:

               A person desiring to contest a lien or the reasonableness of the
               charges claimed by the hospital may do so by filing a motion to
               quash or reduce the claim in the circuit court in which the lien
               was perfected, making all other parties of interest respondents.
[9]   Frost’s petition alleged in part that Parkview’s charges were unreasonable

      because they were greater than the amounts Parkview accepts as payment in

      full from other patients. Frost served a written discovery request on Parkview

      requesting information about discounts provided to patients who either had

      private health insurance or who are covered by government healthcare

      reimbursement programs. Frost was dissatisfied with Parkview’s response and

      sought an order to compel discovery. Parkview requested and received a stay of

      discovery. Parkview then filed its motion for partial summary judgment
                                                          1
      seeking an order that its chargemaster rates were reasonable as a matter of law.

      After a hearing on Parkview’s motion, the trial court entered its order denying

      the motion, concluding that evidence of discounts provided to patients who

      either have private health insurance or are covered by government healthcare




      1
        “A chargemaster is an extensive price list created and maintained by hospitals and other providers. A
      hospital’s chargemaster lists a price for each good and service provided by the hospital (20,000 or more
      separate items may be included). Hospitals update, that is increase, these list prices frequently.” George A.
      Nation III, Determining the Fair and Reasonable Value of Medical Services: The Affordable Care Act,
      Government Insurers, Private Insurers and Uninsured Patients, 65 Baylor L. Rev. 425, 427-28 (2013).

      Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016                          Page 4 of 19
       reimbursement programs is relevant to the determination of reasonable charges

       under the Act and are admissible. This interlocutory appeal ensued.


[10]   In an Indiana summary judgment proceeding, “the party seeking summary

       judgment must demonstrate the absence of any genuine issue of fact as to a

       determinative issue, and only then is the non-movant required to come forward

       with contrary evidence.” Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644

       N.E.2d 118, 123 (Ind. 1994). T.R. 56(C) provides in pertinent part:

               At the time of filing [a] motion [for summary judgment] or
               response, a party shall designate to the court all parts of
               pleadings, depositions, answers to interrogatories, admissions,
               matters of judicial notice, and any other matters on which it
               relies for purposes of the motion. A party opposing the motion
               shall also designate to the court each material issue of fact which
               that party asserts precludes entry of summary judgment and the
               evidence relevant thereto. The judgment sought shall be
               rendered forthwith if the designated evidentiary matter shows
               that there is no genuine issue as to any material fact and that the
               moving party is entitled to a judgment as a matter of law.
[11]   Summary judgment should not be entered where material facts conflict or

       where conflicting inferences are possible. Miller v. Monsanto Co., 626 N.E.2d

       538 (Ind. Ct. App. 1993). When we review the grant or denial of a motion for

       summary judgment our standard of review is the same as that used by the trial

       court. J.C. Spence & Assocs., Inc. v. Geary, 712 N.E.2d 1099 (Ind. Ct. App. 1999).

       We must determine whether there is a genuine issue of material fact and

       whether the moving party is entitled to judgment as a matter of law. Id. In

       resolving those inquiries, we consider only the evidence that has been


       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 5 of 19
       specifically designated to the trial court. Id. The party appealing the trial

       court’s ruling has the burden of persuading this court that the trial court’s

       decision was erroneous. Id. A summary judgment determination shall be made

       from any theory or basis found in the designated materials. Id. “We give

       careful scrutiny to the pleadings and designated materials, construing them in a

       light most favorable to the non-movant.” Id. at 1102 (quoting Diversified Fin.

       Sys., Inc. v. Miner, 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)). The fact that the

       parties make cross-motions for summary judgment does not alter our standard

       of review. Wank v. Saint Francis College, 740 N.E.2d 908 (Ind. Ct. App. 2000),

       trans. denied.


[12]   Parkview claims that Frost may not challenge the reasonableness of the fee

       because the contract guaranteeing “to pay the account of the Hospital on all

       charges for services rendered” referred to its chargemaster rates. See Allen v.

       Clarian Health Partners, Inc., 980 N.E.2d 306 (Ind. 2012) (“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.”).


[13]   Frost is not challenging that a debt is due Parkview. Likewise, Frost is not

       asking a court to impute a reasonable price into the contract where no price is

       stated, or asking a court to completely disregard Parkview’s rates. Instead, he

       argues that under the Act, he may challenge the reasonableness of the charges

       claimed, and is entitled to discovery from Parkview in order to do so, relying on

       language from Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009) regarding the

       evidentiary use of discounted medical expenses paid.

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 6 of 19
[14]   The Act does not define a reasonable charge, which makes sense because that is

       the disputed issue. There are several cases addressing challenges involving the

       reasonable value of medical services, but not exactly in the context presented in

       this appeal.


[15]   In Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), an action where liability was

       admitted and the sole issue for trial was damages, the Supreme Court was

       presented with the question whether the discounted amount of medical

       expenses actually paid by the plaintiff in a personal injury case was admissible

       and relevant to a determination of damages to an injured party. The plaintiff,

       who was insured, paid a discounted amount in satisfaction of his medical

       expenses after negotiations conducted by his health insurance provider. Id. At

       trial, without objection, the plaintiff introduced redacted medical bills showing

       the amounts medical service providers originally billed him. Id.


[16]   When the defendant sought to introduce evidence of the discounted amount

       actually paid, the plaintiff objected citing Indiana’s collateral source statute,

       Indiana Code Annotated section 34-44-1-2 (West, Westlaw current with P.L. 1-

       2016 and P.L. 2-2016 of the 2016 Second Regular Session of the 119th General

       Assembly), which in pertinent part prohibits the introduction of evidence of

       insurance benefits in personal injury cases. Id. The trial court did not allow

       admission of the discounted amount finding that it flowed from insurance

       benefits and as such was barred by the collateral source statute. Id.




       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016    Page 7 of 19
[17]   On appeal, the Supreme Court held that where the reasonableness of the

       medical expenses is not an issue, medical bills can be introduced under Indiana

       Evidence Rule 413 as prima facie evidence of the reasonable amount of medical

       expenses for purposes of a damages determination. Id.


[18]   On the other hand, when there is a dispute as to the reasonable cost of medical

       expenses, the opponent may introduce contradictory evidence including expert

       testimony to challenge the reasonableness of the proffered medical bills. Id.

       The Supreme Court granted transfer, affirmed the judgment, and ordered

       remittitur, taking into consideration the discounted amount paid.


[19]   Later, in Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306 (Ind. 2012),

       uninsured patients brought a class action against the hospital alleging breach of

       contract and seeking a declaration that the rates the hospital billed were

       unreasonable and unenforceable. The appeal arose from a motion to dismiss

       granted to the hospital by the trial court. Id.


[20]   There the patients argued that the chargemaster rates imposed by the hospital

       were unreasonable such that they constituted a breach of contract. The contract

       provided as follows:

               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 if such account is not paid by a private or
               governmental insurance carrier . . . . If the amounts due Clarian
               North Medical Center for services rendered become delinquent
               and the debt is referred to an attorney for collection it is

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016    Page 8 of 19
               understood and agreed that I shall be responsible for reasonable
               attorneys’ fees, court costs, and prejudgment interest.
       Id. at 309.


[21]   The patients argued that the contract did not specify a price for the medical

       services provided, or was silent on price, and as such a “reasonable price for the

       services” term should be imputed to the contract. Id.


[22]   The Court agreed generally that where a contract is silent on price, a reasonable

       price should be imputed to a contract, but noted that an offer appearing to be

       indefinite may be given precision by usage of trade or by course of dealing

       between the parties. Id. In the context of contracts providing for health care

       services, the Court noted that precision concerning price is “close to

       impossible,” that a hospital’s chargemaster rates serve as the basis for its

       pricing, and they are unique because they are set by each hospital. Id. The

       Court noted the decision in Stanley, relied upon by the patients, and expressly

       declined to extend its holding about the evidentiary use of the reasonable value

       of medical expenses to actions alleging breach of contract. Id.


[23]   Frost disagrees with the reasonableness of the charges claimed by the hospital,

       and directly challenges them by way of the Act, which explicitly allows for

       those challenges. Parkview sought to have its chargemaster rates deemed

       reasonable as a matter of law. The trial court’s denial of Parkview’s motion for

       partial summary judgment was premised on the language found in Stanley

       regarding the evidentiary use of discounted amounts paid for medical expenses.

       Although Stanley was a personal injury action where damages were the issue,

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 9 of 19
       there are enough similarities that we agree with the trial court’s reliance upon

       the reasoning in Stanley.


[24]   In Stanley, referring to a damages determination, but discussing the reasonable

       value of medical expenses, the Court stated as follows:

               In sum, the proper measure of medical expenses in Indiana is the
               reasonable value of such expenses. This measure of damages
               cannot be read as permitting only full recovery of medical
               expenses billed to a plaintiff. Id. Nor can the proper measure of
               medical expenses be read as permitting only the recovery of the
               amount actually paid. Id. The focus is on the reasonable value,
               not the actual charge. This is especially true given the current
               state of health care pricing. . . . This value is not exclusively
               based on the actual amount paid or the amount originally billed,
               though these figures certainly may constitute evidence as to the
               reasonable value of medical services.
       906 N.E.2d at 856-58.


[25]   The Court cited Indiana Evidence Rule 413 as one method of proving the

       reasonable value of medical expenses. Id. The Rule provides as follows:


               Statements of charges for medical, hospital or other health care
               expenses for diagnosis or treatment occasioned by an injury are
               admissible into evidence. Such statements are prima facie
               evidence that the charges are reasonable.
       Evid. Rule 413.


[26]   Quoting Cook v. Whitsell-Sherman, 796 N.E.2d 271, 277-78 (Ind. 2003), the

       Court said:




       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 10 of 19
               The purpose of Rule 413 is to provide a simpler method of
               proving amount of medical expenses when there is no substantial
               issue that they are reasonable and were caused by the tort. If
               there is a dispute, of course the party opposing them may offer
               evidence to the contrary, including expert opinion. By permitting
               medical bills to serve as prima facie proof that the expenses are
               reasonable, the rule eliminates the need for testimony on that
               often uncontested issue. Finally, the fact that a statement was
               submitted is at least some evidence that the charge is normal for
               the treatment involved, and it was necessary to be performed.
       906 N.E.2d at 856.


[27]   The Court distinguished between the introduction of medical bills to prove the

       amount of medical expenses when there is no substantial issue that the medical

       expenses are reasonable and when there is.


               Thus, medical bills can be introduced to prove the amount of
               medical expenses when there is no substantial issue that the
               medical expenses are reasonable. However, in cases where the
               reasonable value of medical services is disputed, the method
               outlined in Rule 413 is not the end of the story. See Cook, 796
               N.E.2d at 277. The opposing party may produce contradictory
               evidence to challenge the reasonableness of the proffered medical
               bills, including expert testimony. See id.


       Id.


[28]   In Stanley, the Supreme Court determined that the defendant should have been

       allowed to introduce evidence of the discounted amount that was paid on

       behalf of the plaintiff in satisfaction of his account, an issue relevant to the

       determination of damages, to contradict the plaintiff’s prima facie evidence. Id.



       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 11 of 19
[29]   Here, Parkview sought to have the trial court determine as a matter of law that

       the chargemaster rates were reasonable. That issue was disputed by Frost, who

       sought to discover discounted amounts Parkview had accepted from other

       patients in an effort to challenge the lien amount. By frustrating Frost’s

       discovery efforts, Parkview prevented Frost from meeting Parkview’s prima

       facie evidence of reasonableness with contradictory evidence. The trial court

       correctly found that Frost should be allowed to discover that evidence and that

       such evidence was admissible under the Act.


[30]   In light of the foregoing, we affirm the trial court’s decision.


[31]   Judgment affirmed.


       Vaidik, C.J. concurs.


       Najam, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 12 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Parkview Hospital,
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  02A03-1507-PL-959
               v.

       Thomas E. Frost, et al.,
       Appellee-Plaintiff.




       Najam, Judge, dissenting.

[32]   I respectfully dissent from the majority’s conclusion that the Hospital Lien Act

       allows an uninsured hospital patient to renegotiate the terms of his contract

       with the hospital.


[33]   This case is controlled by our supreme court’s holding in Allen v. Clarian Health

       Partners, Inc. In Allen, uninsured patients executed contracts with the hospital

       under which they “guarantee[d] payment of the account[s].” 980 N.E.2d 306,

       308 (Ind. 2012). After providing the patients care, the hospital attempted to

       collect its chargemaster rates against the patients. The patients sued the

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016               Page 13 of 19
       hospital for breach of contract on the ground that their contracts did not specify

       a price for services and, as such, the patients could introduce evidence in court

       to determine a reasonable price as a matter of law.


[34]   Our supreme court rejected the plaintiffs’ complaint outright and held that they

       had failed to state a claim upon which relief can be granted. Id. at 309-10. In

       particular, the court held that the “price terms in these contracts, while

       imprecise, are not sufficiently indefinite to justify imposition of a ‘reasonable’

       price standard.” Id. at 310. The court then explicitly held that the patients’

       “agreement[s] to pay ‘the account’ . . . refer[] to [the hospital’s] chargemaster.

       As a result, we cannot impute a ‘reasonable’ price term into th[ese] contract[s].”

       Id. at 311.


[35]   Likewise here, it is undisputed that Frost, an uninsured patient of Parkview’s,

       executed through his guardian a contract for medical services that obliged him

       “to pay the account.” Appellant’s App. at 44. Thus, under Allen, Frost agreed

       to pay Parkview’s chargemaster rates, no matter how reasonable those rates

       may or may not have been and regardless of how those rates were determined.

       Allen, 980 N.E.2d at 310-11. It is also undisputed here that that same amount is

       the amount of Parkview’s lien against Frost.


[36]   The majority asserts that Allen is irrelevant here because “Frost is not

       challenging that a debt is due Parkview” and “Frost is not asking a court to

       impute a reasonable price into the contract where no price is stated . . . .” Slip

       op. at 6. I cannot agree. By challenging the reasonableness of Parkview’s


       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 14 of 19
       chargemaster rates—the basis for Parkview’s lien—Frost is challenging the

       amount of debt that, according to Allen, he has already agreed to pay, and he is

       asking a court to impute a new, “reasonable” contract price in place of his

       agreement to pay Parkview’s chargemaster rates.


[37]   The confusion here is understandable. Indiana Code Section 32-33-4-4(e)

       provides that “[a] person desiring to contest . . . the reasonableness of the

       charges claimed by a hospital [in its lien] may do so by filing a motion to quash

       or reduce the claim . . . .” In a vacuum, that language appears to permit

       patients against whom hospitals file liens to wholesale challenge the amount

       underlying the lien. But reading that language in that manner ignores our

       supreme court’s holding in Allen.


[38]   And, while Allen was not a hospital lien case, it is nonetheless binding here for a

       simple, pragmatic reason: if Allen does not apply, hospitals will simply stop

       seeking recovery of unpaid fees through hospital liens and instead seek recovery

       through breach of contract actions, where Allen is controlling. This end-run

       would obviate the Hospital Lien Act altogether. See, e.g., Cmty. Hosp. v. Carlisle,

       648 N.E.2d 363, 365 (Ind. Ct. App. 1995) (noting that, “[b]y allowing health

       care providers direct interests in funds collected by personal injury patients, the

       statute furthers the important policy of reducing the amount of litigation that

       would otherwise be necessary to secure repayment of the health care debts,”

       and that, “by expressly allowing attorneys to collect their fees before satisfaction

       of all other liens,” the statute enables “personal injury patients who are unable

       to pay for medical services” to hire a lawyer of their choice).

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 15 of 19
[39]   Moreover, Indiana Code Section 32-33-4-4(e) can be interpreted in a manner

       consistent with Allen. In particular, the Hospital Lien Act provides that the

       amount underlying a lien:

                [b](5) must:
                          (A) first be reduced by the amount of any benefits to which the
                          patient is entitled under the terms of any contract, health plan,
                          or medical insurance; and
                          (B) reflect credits for all payments, contractual adjustments,
                          write-offs, and any other benefit in favor of the patient;
                after the hospital has made all reasonable efforts to pursue the
                insurance claims in cooperation with the patient.
                (c) If a settlement or compromise that is subject to subsection (b)(1) is
                for an amount that would permit the patient to receive less than twenty
                percent (20%) of the full amount of the settlement or compromise if all
                the liens created under this chapter were paid in full, the liens must be
                reduced on a pro rata basis to the extent that will permit the patient to
                receive twenty percent (20%) of the full amount.
       I.C. § 32-33-4-3. In other words, if a hospital files a lien that fails to properly

       account for the benefits in favor of the patient, or to account for the patient’s

       right to receive at least twenty percent of a settlement or compromise, or is

       similarly unreasonable, the patient can challenge the reasonableness of the

       amount of the lien pursuant to Indiana Code Section 32-33-4-4(e). 2 But what

       Indiana Code Section 32-33-4-4(e) does not authorize is a renegotiation of the

       original contract terms.




       2
          In his brief, Frost asserts that the subparts of Indiana Code Section 32-33-4-3 are “prerequisites to filing a
       lien in the first place.” Appellee’s Br. at 11 (emphasis removed). Frost’s argument here is hard to follow;
       surely he does not suggest that Section 32-33-4-4(e) prohibits review of the hospital’s accounting.

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016                             Page 16 of 19
[40]   I am not persuaded that, in light of Allen, the holding in Stanley v. Walker has

       any application to this matter. Stanley involved the evidence a tortfeasor could

       introduce to attempt to reduce the injured party’s claim of damages. 906

       N.E.2d 852, 858 (Ind. 2009). That simply is not this case. See Allen, 980

       N.E.2d at 311 (“We decline to extend Stanley to actions for breach of

       contract.”).


[41]   Finally, I respectfully disagree with the Indiana Supreme Court’s premise and

       holding in Allen. See Allen v. Clarian Health Partners, Inc., 955 N.E.2d 804, 809

       (Ind. Ct. App. 2011) (Najam, J.), vacated. There was, simply, no factual basis in

       Allen for the assumption that chargemaster rates represented a rational—let

       alone a reasonable—value of medical services in the health care marketplace.

       See id. at 812 n.5 (“[the hospital] considers its chargemaster rates confidential

       and proprietary. Left unanswered by [the hospital] is how a patient and a

       provider can mutually agree to an ‘unambiguous’ and ‘express’ chargemaster

       fee schedule that is not available to the patient.”). As our supreme court has

       recognized in other contexts, “the relationship between [a hospital’s] charges

       and costs is tenuous at best.” Stanley, 906 N.E.2d at 857 (internal quotation

       marks omitted).


[42]   Health care is not an option but a necessity. Yet health care prices are an

       enigma:

               Unlike everything else we buy, when we purchase a medical treatment,
               surgery[,] or diagnostic test, we buy blind. We do not know the cost of
               health procedures before we buy. When we do get the bill, we have no
               idea what the charges are based on and have no way to evaluate them.
       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016    Page 17 of 19
       Tina Rosenberg, Revealing the Health Care Secret: The Price, N.Y. Times:

       Opinionator, July 31, 2013, http://opinionator.blogs.nytimes.com/2013/07/

       31/a-new-health-care-approach-dont-hide-the-price/. Indiana media have also

       recognized that “hospitals, doctors[,] and health insurers have been playing a

       game of hide-and-seek with the public on health care prices . . . .” J.K. Wall,

       Hospitals, Insurers Should End Hide-and-Seek with Prices, Indianapolis Bus. J., June

       14, 2013, http://www.ibj.com/blogs/12-the-dose/post/41959-hospitals-

       insurers-should-end-hide-and-seek-with-prices. Indeed, few people on the

       planet understand how health care prices are determined. Id.


[43]   Thus, in its operation and effect, Allen places health care consumers, including

       emergency-room patients, at a permanent, take-it-or-leave-it disadvantage.

       Allen immunizes a hospital’s unilateral pricing scheme from an evaluation or

       comparison by individual consumers or the marketplace at the front-end and

       then leaves those same consumers without recourse from a trier of fact at the

       back-end. Given that there is no price transparency, to insinuate chargemaster

       rates into an agreement “to pay the account” cannot possibly represent a

       meeting of the minds between the contracting parties. Chargemaster rates are

       not per se reasonable when they are, first, confidential and, second,

       incomprehensible. In sum, there is no discernable or reliable correlation

       between chargemaster rates and the reasonable value of the health care services

       provided.


[44]   Further, under the holding in Allen, the uninsured disproportionately bear the

       costs for health care. The Washington Post recently recognized that “hospitals

       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 18 of 19
       in the United States are charging uninsured consumers more than 10 times the

       actual cost of patient care . . . .” Lena H. Sun, 50 Hospitals Charge Uninsured

       More Than 10 Times Cost of Care, Study Finds, Wash. Post, June 8, 2015,

       https://www.washingtonpost.com/national/health-science/why-some-

       hospitals-can-get-away-with-price-gouging-patients-study-

       finds/2015/06/08/b7f5118c-0aeb-11e5-9e39-0db921c47b93_story.html. As

       one academic authority has plainly stated, Allen is “oblivious to patients’

       vulnerability and dependency.” Mark A. Hall, Toward Relationship-Centered

       Health Law, 50 Wake Forest L. Rev. 233, 248 (2015).


[45]   I believe the majority’s statutory analysis would be correct, and I would concur,

       were it not for Allen, which is controlling authority. We are bound by Indiana

       Supreme Court precedent, but I encourage the Indiana Supreme Court to

       reconsider Allen given the opportunity. As such, I would reverse the trial

       court’s judgment for Frost and remand with instructions for the court to enter

       judgment for Parkview.




       Court of Appeals of Indiana | Opinion 02A03-1507-PL-959 | March 14, 2016   Page 19 of 19
