Preview
Lynnette J. Pope, In the District Court of
Plaintiff
Fort Bend County, Texas
Larry Mathews, Terrell
Reed, Gator Transportation
& Logistics, LLC, and XPO
Last Mile, Inc.
Defendant Judicial District
******************************************************************
OTICE OF UBPOENA
******************************************************************
Per Rules 176, 196 and 205 of the Texas Rules of Civil Procedure, Defendant serves this
notice of subpoena on:
Plaintiff’s non retained treating healthcare provider:
Premier Chiropractic
11470 Broadway, Suite 110
Pearland, TX
This notice of subpoena is served by Art Aguilar, Attorney for Defendant The requests for
production found in Exhibit A herein, shall be answered separately and fully, in writing, and
signed by the persons providing the answers. Such answers are due to the law offices of Doyen
Sebesta Poelma, LLLP at 4 CityNorth 16945 Northchase Drive, Suite 1400 Houston, Texas
within days of service of these requests, after the 10 day notice period has expired. To
alleviate the burden of paper production, you may serve the same to the following email address:
aaguilar@ds lawyers.com
[SIGNATURE BLOCK ON NEXT PAGE]
Respectfully su mitted,
OYEN EBESTA OELMA
y: Art Aguilar
cot G. Doyen
State Bar No. 00792982
sdoyen@ds-lawyers.com
Art Aguilar
State Bar No. 24091525
aaguilar@ds lawyers.com
4 CityNorth
16945 Northchase Drive, Suite 1400
Houston, Texas 77060
(713) 580-8900
(713) 580-8910 Facsimile
TORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
This notice was served in compliance with Rules 21 and 21a of the Texas Rules of Civil
Procedure on May 12, 2022.
/s/ Art Aguilar
Art Aguilar
Lynnette J. Pope, In the District Court of
laintiff
ort Bend County, Texas
Larry Mathews, Terrell
Reed, Gator Transportation
& Logistics, LLC, and XPO
Last Mile, Inc.
Defendant Judicial District
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THE STATE OF TEXAS
UBPOENA RODUCE OCUMENTS ANGIBLE
******************************************************************
Greetings:
Per Rules 176, 196 and 205 of the Texas Rules of Civil Procedure, Defendant serves this
subpoena on:
laintiff’s non retained treating healthcare provider:
Premier Chiropractic
11470 Broadway, Suite 110
Pearland, TX
his subpoena is served by Art Aguilar, Attorney for Defendant Please produce the
following documents: See Exhibit A, attached herein You shall serve a copy of the responses and
objections to these requests, if any, within days after the service of these requests, following
the day notice period To alleviate the burden of paper production, pursuant to Rule 196.4,
please produce the documents responsive to these requests via electronic pdf format at the email
aaguiar@ds-lawyers.com
ailure by any person without adequate excuse to obey a subpoena served upon that
person may be deemed a contempt of the court from which the subpoena is issued or a district
court in the county in which the subpoena is served, and may be punished by fine or
confinement, or both. Tex. R. Civ. P. 176.8.
SIGNATURE BLOCK ON NEXT PAGE]
Respectfully submitted,
OYEN EBESTA OELMA
By: Art Aguilar
Scot G. Doyen
State Bar No. 00792982
sdoyen@ds lawyers.com
Art Aguilar
State Bar No. 24091525
aaguilar@ds lawyers.com
4 CityNorth
16945 Northchase Drive, Suite 1400
Houston, Texas 77060
(713) 580
(713) 580 8910 Facsimile
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
This notice was served in compliance with Rules 21 and 21a of the Texas Rules of Civil
Procedure on May 12, 2022
/s/ Art Aguilar
Art Aguilar
EXHIBIT A
DEFINITIONS AND INSTRUCTIONS
ursuant to Rule 176.6 of the Texas Rules of Civil Procedure, “a person served
with a subpoena must comply with the command stated therein unless discharged by the court or
by the party summoning such witness.” Tex. R. Civ. P. 176.6.
ecause this subpoena is “commanding testimony [and] is directed to . . . [a
corporation] . . . the [corporation] must designate one or more persons to testify on its behalf as to
matters known or reasonably available to the organization.” Tex. R. Civ. P. 176.6. Please designate
the person to testify for:
remier Chiropractic – Plaintiff’s non retained treating healthcare provider
11470 Broadway, Suite 110
Pearland, TX
n response to this subpoena.
urther, pursuant to Rule 176.6, “A person must produce documents as they are
kept in the usual course of business or must organize and label them to correspond with the
categories in the demand.”
person may withhold material or information claimed to be privileged but must
comply with Rule 193.3. A nonparty s production of a document authenticates the document for
use against the nonparty to the same extent as a party’s production of a document is authenticated
for use against the party under Rule 193.7.” Therefore, if you assert a privilege to any of the matters
requested in this subpoena, please produce a privilege log per Rule 193.3. Tex. R. Civ. P. 176.6.
ursuant to Rule 205.3 “the items to be produced or inspected” are hereby “either
by individual item or by category” described with “reasonable particularity.” Tex. R. Civ. P. 205.3.
a) “You” or “Your” means Premier Chiropractic.”
Communication” means the transmittal of information, in the form of facts, ideas,
and inquiries or otherwise, by any means whatsoever.
Documents” or “Document” means any and all written, handwritten, microfiche,
microfilm, typed, printed, videotaped, recorded (by any means), graphic items or
matter, computer data, photographic items or matter, or other means of
reproduction whatsoever; including without limiting the generality of the
foregoing, books, file folder covers and jackets, notes on stickers or labels, papers,
letters, memoranda, typed, printed or handwritten notes, personal and private notes,
communications, es on envelopes, notes on business cards, doodles, musings,
diaries, and memoranda to Your own files, telegrams, digital or laser copies,
telecopies, facsimiles, electronic mail, voice mail, microfilm or microfiche copies,
telexes, notices, checks, debit and credit memoranda, transfer instructions or
memoranda, accounting journals and work papers, photocopies, published or
posted notices or advertisements, newspaper and magazine articles, pamphlets,
periodicals, position papers, pleadings, affidavits, depositions, witness statements,
originals, summaries, licenses, permits, appointment books, calendars, cablegrams,
computer logs, document control records, minutes, computer disks or tape,
computer printouts, forms, wills, trust agreements, partnership agreements,
guaranties, indemnities, surety bonds, certifications, evaluations, assessments,
promissory notes, stock certificates, bonds, financial statements, certificates or
evidence of deposits, schedules, tabulations, document abstracts, document
summaries, outlines, vouchers, ledgers, projections, accounts, statements, pro
forma financial statements or projections, affidavits, reports, spreadsheets, work
papers, reports to auditors or examiners, estimates, statistical analysis, samples,
opinions, appraisals, endorsements, allonges, tax reports and returns, contracts,
deeds, leases, agreements, instruments, deeds of trust, mortgages, pledges, security
agreements, extension, renewal or forbearance agreements, assignments, audits,
invoices, billing statements, billing details, minutes of meetings, speeches,
textbooks, handbooks, policy manuals or statements, memoranda to employees,
directives, resignation letters, circulars, posters, press releases, advertisements,
newspaper clippings, drawings, motion pictures, negatives, slides, photographs,
videotapes, audio recordings, sketches, charts, graphs and other similar objects, and
shall also include any kind of transcript, transcription or recording of any
conversation, oral statement or presentation of any kind.
erson” means the singular as well as the plural, and masculine as well as the
feminine, and includes any natural person or business, legal, or governmental entity
or association.
he terms “and,” “or,” and “and/or” shall be construed in the conjunctive or the
disjunctive, whichever makes the request more inclusive. The disjunctive includes
the conjunctive, and vice versa.
he terms “any” and “each” shall be construed as “all,” “each and every,” or “any
one,” whichever makes the request more inclusive.
he term “all” shall include and encompass “any” or “each,” whichever makes the
request more inclusive.
he use of the word “the” shall not be construed as limiting the scope of any
request.
he terms “including” and “include” means “specifically including but not limited
to.”
ach gender of any word includes the other genders.
he use of the singular form of any word includes the plural, and vice versa, as
necessary to bring within the scope of the following requests all information which
might otherwise be construed to be outside its scope.
request for a Document includes a request for the front and back of ALL
ORIGINALS, and ALL copies (even if duplicative), and ALL drafts, and ALL fragments, parts,
and portions of same; whether or not they are or purport to be private, personal, confidential,
privileged, final, released, published, or intended to be viewed or seen by anyone else, and without
regard to why or how they came into Your care, possession, custody, or control.
You shall serve a copy of the responses and objections to these requests, if any,
within thirty (30) days after the service of these requests.
All grounds for an objection to a request shall be stated with specificity.
n the event any request cannot be fully responded to after the exercise of reasonable
diligence, you shall respond as completely as you can and set forth the reasons why you cannot
respond, and state what is needed to be done in order to be in a position to respond fully and
estimate when you will be in the position to do so.
ou have an ongoing obligation to supplement your responses to these requests if
you later obtain additional responsive information or become aware that a previous response was
false or incomplete at the time it was made or has since become false or incomplete.
If you feel that you have an objection to these requests, to avoid the burden of
seeking court intervention, call me at 713-992-1104 so we may resolve the objections like
gentlemen.
ttached you will also find Ex. C, the Supreme Court’s holding in In re N. Cypress
Med. Ctr. Operating Co., Ltd., 559 S.W.3d 128 (Tex. 2018) and Ex. D, the Supreme Court’s most
recent holding in In re K & L Auto Crushers, LLC 1022, 2021 WL 2172535 (Tex. May 28,
2021) extending and buttressing In re. N. Cypresseven further. Failure to produce the documents
will automatically be met with an appropriate response invoking the same and a motion for
attorneys’ fees. Please comply with the subpoena.
DEFENDANT REQUESTS FOR PRODUCTION
lease produce all documents pertaining to your identity as a legal entity, including your
corporate charger.
Please produce all documents reflecting any statements of policy or corporate code of ethics
or statements of principle to which you ascribe or have subscribed to in the past.
3. Please produce a copy of the computer notations records concerning the Plaintiff.
Please produce all contracts regarding negotiated or reduced rates for the CPT codes and
medical services provided to Plaintiff see Ex. B – the bill in which you are a party, including
those with:
Aetna
b. Cigna
c. UnitedHealth / United Health Care
Blue Cross Blue Shield
Humana
Medicaid / medicare
Walk in cash rates.
lease produce all documents that support your contention or opinion that charged
Plaintiff a reasonable and regular rate for medical services provided.
lease produce a copy of any financial assistance policy you created pursuant to 26 U.S.C.
Sec. 501(r)(4).
lease produce the annual cost report you are required to provide to a Medicare
Administrative Contractor as a Medicare certified institutional provider for 2017, 2018,
2019, 2020, and 2021.
lease produce an executed copy of the declaration that follows concurrently with the
documents produced in response to this subpoena.
Cause No. 20
Lynnette J. Pope, In the District Court of
laintiff,
ort Bend County, Texas
Larry Mathews, Terrell
Reed, Gator Transportation
& Logistics, LLC, and XPO
Last Mile, Inc.
Defendant Judicial District
CLARATION PER TEX. CIV. PRAC. REM. CODE
REGARDING BUSINESS RECORDS
My name is ______________________, and I am employed at Premier
Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 77584. My title is
In accordance with Tex. Civ. Prac. & Rem. Code Ann. § 132.001, I declare as follows:
I am the custodian of records at Premier Chiropractic, located at 11470 Broadway, Suite
110, Pearland, TX 77584 and am familiar with the manner in which its records are created
and maintained by virtue of my duties and responsibilities.
Attached are ________ pages of records. These are the original records or exact duplicates of
the original records.
The records were made at or near the time of each act, event, condition, opinion, or diagnosis
set forth. It is also the regular practice of Premier Chiropractic, located at 11470 Broadway,
Suite 110, Pearland, TX 77584 to make this type of record at or near the time of each act,
event, condition, opinion, or diagnosis set forth in the record.
The records were made by, or from information transmitted by, persons with knowledge of the
matters set forth. It is also the regular practice of Premier Chiropractic, located at 11470
Broadway, Suite 110, Pearland, TX 77584 or this type of record to be made by, or from
information transmitted by, persons with knowledge of the matters set forth in them.
The records were kept in the course of regularly conducted business activity. It is also the
regular practice of Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland,
TX 775846 to keep this type of record in the course of regularly conducted business activity.
6. It is the regular practice of the business activity to make the records.
I declare under penalty of perjury that the foregoing is true and correct.”
xecuted in ______________County, State of Texas, ___________ of _____________, 2022.
Custodian of Records
Declarant
\ .
$ \
\-
EXHIBIT C
In re North Cypress Medical Center Operating Co., Ltd.
Supreme Court of Texas. | April 27, 2018 | 559 S.W.3d 128 | 2018 WL 1974376
Document Details Outline
KeyCite: KeyCite Yellow Flag - Negative Treatment Synopsis
Declined to Extend by In re Muller, Tex.App.- (p.1)
Amarillo, November 6, 2020 Attorneys and
texas Citation: In re N. Cypress Med. Ctr. Operating Co., Ltd., 559 Law Firms
S.W.3d 128 (Tex. 2018) (p.1)
All Citations: 559 S.W.3d 128, 61 Tex. Sup. Ct. J. 1038 Opinion
(p.2)
Search Details
Dissenting
Jurisdiction: Texas Opinion
Delivery Details (p.10)
Date: September 2, 2021 at 11:32 AM All Citations
Delivered By: Art Aguilar (p.16)
Client ID: IN RE NORTH CYPRESS
Status Icons:
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
KeyCite Yellow Flag - Negative Treatment The Supreme Court, Lehrmann, J., held that
Declined to Extend by In re Muller, Tex.App.-Amarillo, November 6, 2020
the trial court did not abuse its discretion in
559 S.W.3d 128
determining that the requested information was
Supreme Court of Texas.
relevant.
IN RE NORTH CYPRESS
MEDICAL CENTER
Petition denied.
OPERATING CO., LTD., Relator
No. 16–0851 Hecht, C.J., dissented and filed opinion in
| which Green and Guzman, JJ., joined.
Argued November 9, 2017
|
On Petition for Writ of Mandamus
OPINION DELIVERED: April 27, 2018
| Attorneys and Law Firms
Rehearing Denied November 16, 2018
R. James Amaro Jr., The Amaro Law Firm,
Synopsis Houston, for Real Party in Interest.
Background: Patient, who had been treated
in hospital's emergency room following an Shelli M.J. Morrison, Byron L. Kelley, The
automobile accident and who lacked health Morrison Law Firm, Athens, Chad M. Ruback,
insurance, brought action for a declaratory The Ruback Law Firm, Dallas, for Relator.
judgment that hospital's charges were
unreasonable and that hospital's corresponding Diana L. Faust, R. Brent Cooper, Cooper
$11,037 lien was invalid to the extent that & Scully, P.C., Dallas, for Amicus Curiae
it exceeded a reasonable and regular rate CHRISTUS Health and Texas Health
for services rendered. The 234th District Resources.
Court, Harris County, Wesley R. Ward, J.,
Amy Kogan, Douglas D. Turek, Erin Ruth
granted patient's motion to compel and ordered
Hartung, The Turek Law Firm, PC, The
hospital to produce information regarding its
Woodlands, for Amicus Curiae Dallas County
reimbursement rates from private insurers and
Hospital District d/b/a Amici Health and
public payers for the services that it provided
Hospital System and Hunt Memorial Hospital
to patient. Hospital petitioned for mandamus
District d/b/a Hunt Regional Medical Center.
relief. The Houston Court of Appeals, 14th
District, denied petition. Hospital petitioned for Geoffrey A. Gannaway, Beck Redden, LLP,
mandamus relief. Houston, for Amicus Curiae Memorial
Hermann Health System.
David King, Matthew B. Baumgartner, P.
M. Schenkkan, Graves, Dougherty, Hearon
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
& Moody P.C., Austin, for Amicus Curiae reimbursement rates are irrelevant to whether
Research & Planning Consultants, LP. its charges to the uninsured plaintiff were
reasonable and that the trial court therefore
Charles W. Bailey Jr., Law Offices of abused its discretion in ordering production
Charles Bailey, Austin, George Nation III, of that information. We disagree. The
LEHIGH UNIVERSITY, College of Business reimbursement rates sought, taken together,
and Economics, Bethlehem, PA, for Amicus reflect the amounts the hospital is willing to
Curiae The Alliance of Claims Assistance accept from the vast majority of its patients
Professionals. as payment in full for such services. While
not dispositive, such amounts are at least
Juan Roberto Fuentes, The Fuentes Firm, P.C.,
relevant to what constitutes a reasonable
Spring, for Amicus Curiae The Fuentes Firm,
charge. Accordingly, we deny the hospital's
P.C.
petition for writ of mandamus.
Opinion
Justice Lehrmann delivered the opinion of the
I. Background
Court, in which Justice Johnson, Justice Boyd,
Justice Devine, Justice Brown, and Justice Crystal Roberts was involved in an automobile
Blacklock joined. accident on June 9, 2015, and was taken
by ambulance to the emergency room at
*129 Our procedural rules allow broad
North Cypress Medical Center. North Cypress
discovery of unprivileged information that
released Roberts approximately three hours
is “relevant to the subject matter of the
later after performing a series of x-rays,
pending action.” Tex. R. Civ. P. 192.3(a). This
CT scans, lab tests, and other emergency
includes information that may ultimately be
services. Because Roberts was uninsured,
inadmissible at trial so long as it “appears
North Cypress billed her for the services at
reasonably calculated to lead to the discovery
its full “chargemaster” prices, which totaled
of admissible evidence.” Id. The “subject
$11,037.35. North Cypress also filed a hospital
matter” of the underlying action, which
lien in the amount of the cost of its services,
involves the enforceability of a hospital lien
minus payments and adjustments credited to
securing payment of charges for services
Roberts’ account. See Tex. Prop. Code §
rendered to an uninsured patient, encompasses
55.002(a) (“A hospital has a lien on a cause of
the reasonableness of those charges.
action or claim of an individual who receives
hospital services for injuries caused by an
The trial court's order at issue in this
accident that is attributed to the negligence of
mandamus proceeding requires the defendant
another person.”).
hospital to produce information regarding its
reimbursement rates from private insurers and
*130 The liability insurer of the driver at fault
public payers for the services it provided
offered to settle the case for $17,380, attributing
to the plaintiff. The hospital argues those
$9,404 to medical expenses stemming from
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
North Cypress’s services. Roberts sought provider for 2011, 2012, 2013, 2014 and
reduction of North Cypress's bill, and the 2015.
parties negotiated but could not reach an
....
agreement on the bill's amount.1 Roberts sued,
seeking a declaratory judgment that North • Please state the Medicare reimbursement
Cypress's charges were unreasonable and its rate for x-rays, CT scans, lab tests
lien invalid to the extent it exceeds a reasonable and emergency room services, as you
and regular rate for services rendered.2 North performed on the Plaintiff on June 9, 2015.
Cypress counterclaimed on a sworn account
for $8,278.31, the amount to which it had • Please state the Medicaid reimbursement
previously offered to reduce its bill. rate for x-rays, CT scans, lab tests
and emergency room services, as you
1 Roberts initially requested that the bill be reduced to performed on the Plaintiff on June 9, 2015.
$3,500, which she characterized as “the reasonable and North Cypress objected to these discovery
necessary charges ... for the treatment received based requests and moved for a protective
on the geographic area and similarly sized facilities.”
North Cypress offered to reduce the bill to $8,278.31, order, asserting that they sought irrelevant
and Roberts countered with $6,269.33. North Cypress information and were overly broad. Roberts
declined. filed a corresponding motion to compel. In
2 Roberts also asserted claims for fraudulent lien filing and an oral ruling on the record, the trial court
for violations of the Texas Deceptive Trade Practices Act ordered North Cypress to produce the requested
and the Texas Debt Collection Act. She further claimed
that the lien is invalid because she was never formally
information, though the court narrowed the
admitted to the hospital. These claims are not relevant to scope to include only contracts “that cover the
the instant discovery dispute. [time] period at issue in this case.”
Roberts served requests for production and
interrogatories on North Cypress, including the North Cypress moved for reconsideration,
following: reiterating its relevance objection and adding
that it would “suffer irreparable harm” from the
• Please produce all contracts regarding disclosure of its “confidential and proprietary”
negotiated or reduced rates for the hospital negotiated insurance contracts. The trial court
services provided to Plaintiff in which denied the motion, prompting North Cypress
Defendant is a party, including those to file a petition for writ of mandamus in the
with Aetna, First Care, United Healthcare, court of appeals. The court of appeals denied
Blue Cross Blue Shield, Medicare, and the petition, and North Cypress now seeks
Medicaid. mandamus relief in this Court.
....
• Please produce the annual cost report you II. Analysis
are required to provide to a Medicare
Administrative Contractor Medicare [sic], Mandamus is an extraordinary remedy granted
as a Medicare certified institutional only when the relator shows that the trial
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
court abused its discretion and that no adequate Subject to certain conditions, a hospital has a
appellate remedy exists. In re Prudential Ins. lien on the cause of action of a patient “who
Co. of Am., 148 S.W.3d 124, 135–36 (Tex. receives hospital services for injuries caused by
2004). “The trial court abuses its discretion an accident that is attributed to the negligence
by *131 ordering discovery that exceeds that of another person.” Id. (quoting Tex. Prop.
permitted by the rules of procedure.” In re CSX Code § 55.002(a) ). The lien also attaches to
Corp., 124 S.W.3d 149, 152 (Tex. 2003). We the proceeds of a settlement of the patient's
address North Cypress's two challenges to the cause of action. Tex. Prop. Code § 55.003(a)
discovery order in turn. (3). We have noted that the statute “is replete
with language that the hospital recover the full
amount of its lien, subject only to the right
to question the reasonableness of the charges
A. Relevance
comprising the lien.” Bashara v. Baptist Mem'l
North Cypress first argues that information Hosp. Sys., 685 S.W.2d 307, 309 (Tex. 1985);
about reimbursement rates from insurers and see also Daughters of Charity Health Servs. v.
government payers is not relevant to Roberts' Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007)
claims about the enforceability of its hospital (noting that the amount of a hospital lien may
lien. See Tex. R. Civ. P. 192.3(a) (parties not exceed “a reasonable and regular rate”).3
may obtain discovery of information that is
“relevant to the subject matter of the pending 3 Notwithstanding these statements in Bashara and
action”). Evidence is “relevant” if “it has any Linnstaedter, amici curiae Christus Health and Texas
Health Resources argue that the hospital's charges
tendency to make a fact [of consequence to the for services rendered, as distinguished from physician
action] more or less probable than it would be charges and “charges for other services,” need not be
without the evidence.” Tex. R. Evid. 401. And “reasonable” to be covered by a valid hospital lien.
Compare Tex. Prop. Code § 55.004(b) (“A hospital
as noted, evidence need not be admissible to be lien ... is for the amount of the hospital's charges for
discoverable so long as it “appears reasonably services provided ....”), with id. § 55.004(c) (“A hospital
calculated to lead to the discovery of admissible lien ... may also include the amount of a physician's
reasonable and necessary charges for emergency hospital
evidence.” Tex. R. Civ. P. 192.3(a). care services provided ....”), and id. § 55.004(d) (“A
hospital lien ... does not cover ... charges for other
Because the subject matter of this action services that exceed a reasonable and regular rate for the
services[.]”). North Cypress does not make this argument
involves a dispute over a hospital lien, in
and has consistently taken the position that its charges are
evaluating the relevance of the requested reasonable. Accordingly, we do not address the statutory-
information we must begin with a discussion of interpretation argument amici present.
Texas's hospital-lien statute, codified in Texas North Cypress challenges the trial court's
Property Code chapter 55. This statute provides order requiring production of (1) its contracts
hospitals an additional method of securing with private insurers regarding the negotiated
payment from accident victims, encouraging reimbursement rates it accepts from those
their prompt and adequate treatment. McAllen insurers for the services provided to Roberts,
Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. (2) the reimbursement rates for those services
of Tex., 433 S.W.3d 535, 537 (Tex. 2014). from Medicare and Medicaid, and (3) North
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
Cypress's annual Medicare cost reports for This case highlights the “two-tiered” healthcare
certain years. North Cypress primarily argues billing structure that has evolved over the past
that its negotiated reimbursement rates with several decades. In Haygood, on which North
health insurance carriers are not relevant to its Cypress heavily relies, we described these tiers
charges to an uninsured patient and therefore as encompassing (1) “ ‘list’ or ‘full’ rates [also
are not discoverable. It urges that because described as chargemaster rates] sometimes
Roberts had neither *132 private health charged to uninsured patients, but frequently
insurance nor Medicare or Medicaid coverage uncollected,” and (2) “reimbursement rates for
when she was treated, she is not entitled to patients covered by government and private
the benefit of those negotiated rates. North insurance.” Id. at 393 (footnotes omitted).
Cypress also cites our holding in Haygood v. De We noted that “[f]ew patients today ever pay
Escabedo that any billing adjustment reflected a hospital's full charges,” id. (alteration in
in the negotiated rates belongs to the insurance original) (citing Linnstaedter, 226 S.W.3d at
carrier, not the patient. 356 S.W.3d 390, 394–95 410), but that hospitals are pressured to set
(Tex. 2012). According to North Cypress, this these charges as high as possible because
further highlights the distinction between billed reimbursement rates typically increase along
charges and reimbursement rates.4 with them, id.
4 Amici curiae Parkland Health & Hospital System, Hunt
Commentators lament the increasingly
Regional Medical Center, Christus Health, Texas Health arbitrary nature of chargemaster prices, noting
Resources, and Memorial Hermann Health System that, over time, they have “lost any direct
submitted briefs in support of North Cypress's petition.
connection to costs or to the amount
Roberts responds that the insurance contracts the hospital actually expect[s] to receive
are necessary to establish whether the amount in exchange for its goods and services.”
North Cypress charged Roberts for emergency George A. Nation III, Hospital Chargemaster
services is excessive in comparison to the Insanity: Heeling the Healers, 43 Pepp. L.
rates for the same services provided to other Rev. 745, 755 (2016) (citing Christopher
patients in the same hospital. Roberts avers P. Tompkins et al., The Precarious Pricing
that the contracts will show that North Cypress System for Hospital Services, 25 Health
is customarily and regularly paid significantly Aff. 45, 48 (2006) ). Yet hospitals have
less for those services, making the contracts incentive to continue raising chargemaster
relevant to the reasonableness of the charges.5 prices because of the positive correlation
between those prices and hospital revenue. Id.
5 Amici curiae The Alliance of Claims Assistance at 755–56; see also George A. Nation III,
Professionals, The Fuentes Firm, P.C., and Research & Determining the Fair and Reasonable Value
Planning Consultants, LP, submitted briefs in support of
of Medical Services: The Affordable Care
Roberts.
Act, Government Insurers, Private Insurers
and Uninsured Patients, 65 Baylor L. Rev.
1. Healthcare Pricing 425, 454 (2013) (“In one form or another,
a hospital's billed (chargemaster) charges are
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
used indirectly to determine the ultimate dollar regular rate would be.7 And because of the way
level of reimbursement payments.”).6 This chargemaster pricing has evolved, the charges
trend continues notwithstanding the fact that themselves are not dispositive of what is
hospitals generally expect to recover far less reasonable, irrespective of whether the patient
than they officially “charge.” E.g., Tompkins, being charged has insurance.8 By contrast, a
25 Health Aff. at 48 (“The gap between charges hospital's reimbursements from private insurers
and actual payments (net patient revenues) now and public payers comprise the vast majority
averages about 255 percent and is growing of its payments for services rendered. We fail
rapidly.”). to see how the amounts a hospital accepts as
payment from most of its patients are wholly
6 The author of these two law review articles, George A. irrelevant to the reasonableness of its charges
Nation III, is counsel of record for amicus curiae The
to other patients for the same services.
Alliance of Claims Assistance Professionals.
7 North Cypress accuses Roberts of utilizing the full
amount of the billed charges to negotiate a favorable
*133 2. Evaluating Reasonableness of
settlement with the liability insurer and then seeking a
Hospital Charges windfall by challenging those charges as unreasonable.
To the extent North Cypress asserts some sort of estoppel
Citing Haygood, North Cypress notes that its defense in the underlying suit, we fail to see how it
legal right to be paid for Roberts' treatment forecloses discovery on a central issue.
is not offset by a negotiated agreement with 8 North Cypress contends that it “charges all patients
an insurance carrier. See Haygood, 356 S.W.3d the same thing for any particular service, regardless
of whether the patient has health insurance.” This
at 391 (holding that a plaintiff's recovery of argument reflects the fact that chargemaster prices are
medical expenses incurred is limited, as is technically listed on all patient bills, but ignores the fact
the evidence at trial, “to expenses that the that, for insured patients, the amount actually accepted
as payment after applying the negotiated discount
provider has a legal right to be paid”). The is typically far lower. Haygood, 356 S.W.3d at 391
dissent similarly opines that hospitals should (noting the “great disparities between amounts billed and
not be limited “to charging an uninsured patient payments accepted” from insurers).
insurer-negotiated reimbursement rates.” Post Courts in several other jurisdictions agree.
at 139. According to North Cypress and the In Bowden v. Medical Center, 297 Ga. 285,
dissent, this renders irrelevant any adjustments 773 S.E.2d 692 (2015), the Supreme Court
that would have been applicable if Roberts of Georgia recently considered the exact issue
were covered by private health insurance, presented here. That case also involved the
Medicare, or Medicaid. validity and amount of a hospital lien for the
reasonable charges for an uninsured's patient's
However, the issue is not whether Roberts care. Id. at 693. The patient, Bowden, sought
may take advantage of insurance she did not information and documents regarding amounts
have. Rather, because a valid hospital lien may the hospital charged insured patients for the
not secure charges that exceed a reasonable same type of care during the same time period.
and regular rate, the central issue in a case Id. The court held that such documents were
challenging such a lien is what a reasonable and discoverable, concluding:
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6
In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018)
61 Tex. Sup. Ct. J. 1038
were covered by government programs. 52
The amounts that TMC charged to (and
N.E.3d 804, 805–06, 810 (Ind. Ct. App. 2016).9
agreed to accept as payment in full from )
other patients treated at the same hospital for
9 Not all courts agree on the relevance of such information.
the same type of care during the same general In Parnell v. Madonna Rehabilitation Hospital, Inc., for
time frame that Bowden was treated may example, the Nebraska Supreme Court upheld summary
not be dispositive of whether TMC's charges judgment for the hospital on the amount of its hospital
lien. 258 Neb. 125, 602 N.W.2d 461, 464–65 (Neb.
for Bowden's care were “reasonable” under 1999). Noting that the statute at issue provided for a lien
[Georgia's hospital lien statute], to the extent on the amount due for the hospital's “usual and customary
that the other patients were not similarly charges,” the court summarily held that consideration of
the “amounts actually collected,” rather than the amount
situated in other economically meaningful
charged, would contravene the statute's plain language.
ways. But that does
Preview
Lynnette J. Pope, In the District Court of Plaintiff Fort Bend County, Texas Larry Mathews, Terrell Reed, Gator Transportation & Logistics, LLC, and XPO Last Mile, Inc. Defendant Judicial District ****************************************************************** OTICE OF UBPOENA ****************************************************************** Per Rules 176, 196 and 205 of the Texas Rules of Civil Procedure, Defendant serves this notice of subpoena on: Plaintiff’s non retained treating healthcare provider: Premier Chiropractic 11470 Broadway, Suite 110 Pearland, TX This notice of subpoena is served by Art Aguilar, Attorney for Defendant The requests for production found in Exhibit A herein, shall be answered separately and fully, in writing, and signed by the persons providing the answers. Such answers are due to the law offices of Doyen Sebesta Poelma, LLLP at 4 CityNorth 16945 Northchase Drive, Suite 1400 Houston, Texas within days of service of these requests, after the 10 day notice period has expired. To alleviate the burden of paper production, you may serve the same to the following email address: aaguilar@ds lawyers.com [SIGNATURE BLOCK ON NEXT PAGE] Respectfully su mitted, OYEN EBESTA OELMA y: Art Aguilar cot G. Doyen State Bar No. 00792982 sdoyen@ds-lawyers.com Art Aguilar State Bar No. 24091525 aaguilar@ds lawyers.com 4 CityNorth 16945 Northchase Drive, Suite 1400 Houston, Texas 77060 (713) 580-8900 (713) 580-8910 Facsimile TORNEY FOR DEFENDANT CERTIFICATE OF SERVICE This notice was served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on May 12, 2022. /s/ Art Aguilar Art Aguilar Lynnette J. Pope, In the District Court of laintiff ort Bend County, Texas Larry Mathews, Terrell Reed, Gator Transportation & Logistics, LLC, and XPO Last Mile, Inc. Defendant Judicial District ***************************************************************** THE STATE OF TEXAS UBPOENA RODUCE OCUMENTS ANGIBLE ****************************************************************** Greetings: Per Rules 176, 196 and 205 of the Texas Rules of Civil Procedure, Defendant serves this subpoena on: laintiff’s non retained treating healthcare provider: Premier Chiropractic 11470 Broadway, Suite 110 Pearland, TX his subpoena is served by Art Aguilar, Attorney for Defendant Please produce the following documents: See Exhibit A, attached herein You shall serve a copy of the responses and objections to these requests, if any, within days after the service of these requests, following the day notice period To alleviate the burden of paper production, pursuant to Rule 196.4, please produce the documents responsive to these requests via electronic pdf format at the email aaguiar@ds-lawyers.com ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both. Tex. R. Civ. P. 176.8. SIGNATURE BLOCK ON NEXT PAGE] Respectfully submitted, OYEN EBESTA OELMA By: Art Aguilar Scot G. Doyen State Bar No. 00792982 sdoyen@ds lawyers.com Art Aguilar State Bar No. 24091525 aaguilar@ds lawyers.com 4 CityNorth 16945 Northchase Drive, Suite 1400 Houston, Texas 77060 (713) 580 (713) 580 8910 Facsimile ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE This notice was served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on May 12, 2022 /s/ Art Aguilar Art Aguilar EXHIBIT A DEFINITIONS AND INSTRUCTIONS ursuant to Rule 176.6 of the Texas Rules of Civil Procedure, “a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness.” Tex. R. Civ. P. 176.6. ecause this subpoena is “commanding testimony [and] is directed to . . . [a corporation] . . . the [corporation] must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.” Tex. R. Civ. P. 176.6. Please designate the person to testify for: remier Chiropractic – Plaintiff’s non retained treating healthcare provider 11470 Broadway, Suite 110 Pearland, TX n response to this subpoena. urther, pursuant to Rule 176.6, “A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand.” person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty s production of a document authenticates the document for use against the nonparty to the same extent as a party’s production of a document is authenticated for use against the party under Rule 193.7.” Therefore, if you assert a privilege to any of the matters requested in this subpoena, please produce a privilege log per Rule 193.3. Tex. R. Civ. P. 176.6. ursuant to Rule 205.3 “the items to be produced or inspected” are hereby “either by individual item or by category” described with “reasonable particularity.” Tex. R. Civ. P. 205.3. a) “You” or “Your” means Premier Chiropractic.” Communication” means the transmittal of information, in the form of facts, ideas, and inquiries or otherwise, by any means whatsoever. Documents” or “Document” means any and all written, handwritten, microfiche, microfilm, typed, printed, videotaped, recorded (by any means), graphic items or matter, computer data, photographic items or matter, or other means of reproduction whatsoever; including without limiting the generality of the foregoing, books, file folder covers and jackets, notes on stickers or labels, papers, letters, memoranda, typed, printed or handwritten notes, personal and private notes, communications, es on envelopes, notes on business cards, doodles, musings, diaries, and memoranda to Your own files, telegrams, digital or laser copies, telecopies, facsimiles, electronic mail, voice mail, microfilm or microfiche copies, telexes, notices, checks, debit and credit memoranda, transfer instructions or memoranda, accounting journals and work papers, photocopies, published or posted notices or advertisements, newspaper and magazine articles, pamphlets, periodicals, position papers, pleadings, affidavits, depositions, witness statements, originals, summaries, licenses, permits, appointment books, calendars, cablegrams, computer logs, document control records, minutes, computer disks or tape, computer printouts, forms, wills, trust agreements, partnership agreements, guaranties, indemnities, surety bonds, certifications, evaluations, assessments, promissory notes, stock certificates, bonds, financial statements, certificates or evidence of deposits, schedules, tabulations, document abstracts, document summaries, outlines, vouchers, ledgers, projections, accounts, statements, pro forma financial statements or projections, affidavits, reports, spreadsheets, work papers, reports to auditors or examiners, estimates, statistical analysis, samples, opinions, appraisals, endorsements, allonges, tax reports and returns, contracts, deeds, leases, agreements, instruments, deeds of trust, mortgages, pledges, security agreements, extension, renewal or forbearance agreements, assignments, audits, invoices, billing statements, billing details, minutes of meetings, speeches, textbooks, handbooks, policy manuals or statements, memoranda to employees, directives, resignation letters, circulars, posters, press releases, advertisements, newspaper clippings, drawings, motion pictures, negatives, slides, photographs, videotapes, audio recordings, sketches, charts, graphs and other similar objects, and shall also include any kind of transcript, transcription or recording of any conversation, oral statement or presentation of any kind. erson” means the singular as well as the plural, and masculine as well as the feminine, and includes any natural person or business, legal, or governmental entity or association. he terms “and,” “or,” and “and/or” shall be construed in the conjunctive or the disjunctive, whichever makes the request more inclusive. The disjunctive includes the conjunctive, and vice versa. he terms “any” and “each” shall be construed as “all,” “each and every,” or “any one,” whichever makes the request more inclusive. he term “all” shall include and encompass “any” or “each,” whichever makes the request more inclusive. he use of the word “the” shall not be construed as limiting the scope of any request. he terms “including” and “include” means “specifically including but not limited to.” ach gender of any word includes the other genders. he use of the singular form of any word includes the plural, and vice versa, as necessary to bring within the scope of the following requests all information which might otherwise be construed to be outside its scope. request for a Document includes a request for the front and back of ALL ORIGINALS, and ALL copies (even if duplicative), and ALL drafts, and ALL fragments, parts, and portions of same; whether or not they are or purport to be private, personal, confidential, privileged, final, released, published, or intended to be viewed or seen by anyone else, and without regard to why or how they came into Your care, possession, custody, or control. You shall serve a copy of the responses and objections to these requests, if any, within thirty (30) days after the service of these requests. All grounds for an objection to a request shall be stated with specificity. n the event any request cannot be fully responded to after the exercise of reasonable diligence, you shall respond as completely as you can and set forth the reasons why you cannot respond, and state what is needed to be done in order to be in a position to respond fully and estimate when you will be in the position to do so. ou have an ongoing obligation to supplement your responses to these requests if you later obtain additional responsive information or become aware that a previous response was false or incomplete at the time it was made or has since become false or incomplete. If you feel that you have an objection to these requests, to avoid the burden of seeking court intervention, call me at 713-992-1104 so we may resolve the objections like gentlemen. ttached you will also find Ex. C, the Supreme Court’s holding in In re N. Cypress Med. Ctr. Operating Co., Ltd., 559 S.W.3d 128 (Tex. 2018) and Ex. D, the Supreme Court’s most recent holding in In re K & L Auto Crushers, LLC 1022, 2021 WL 2172535 (Tex. May 28, 2021) extending and buttressing In re. N. Cypresseven further. Failure to produce the documents will automatically be met with an appropriate response invoking the same and a motion for attorneys’ fees. Please comply with the subpoena. DEFENDANT REQUESTS FOR PRODUCTION lease produce all documents pertaining to your identity as a legal entity, including your corporate charger. Please produce all documents reflecting any statements of policy or corporate code of ethics or statements of principle to which you ascribe or have subscribed to in the past. 3. Please produce a copy of the computer notations records concerning the Plaintiff. Please produce all contracts regarding negotiated or reduced rates for the CPT codes and medical services provided to Plaintiff see Ex. B – the bill in which you are a party, including those with: Aetna b. Cigna c. UnitedHealth / United Health Care Blue Cross Blue Shield Humana Medicaid / medicare Walk in cash rates. lease produce all documents that support your contention or opinion that charged Plaintiff a reasonable and regular rate for medical services provided. lease produce a copy of any financial assistance policy you created pursuant to 26 U.S.C. Sec. 501(r)(4). lease produce the annual cost report you are required to provide to a Medicare Administrative Contractor as a Medicare certified institutional provider for 2017, 2018, 2019, 2020, and 2021. lease produce an executed copy of the declaration that follows concurrently with the documents produced in response to this subpoena. Cause No. 20 Lynnette J. Pope, In the District Court of laintiff, ort Bend County, Texas Larry Mathews, Terrell Reed, Gator Transportation & Logistics, LLC, and XPO Last Mile, Inc. Defendant Judicial District CLARATION PER TEX. CIV. PRAC. REM. CODE REGARDING BUSINESS RECORDS My name is ______________________, and I am employed at Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 77584. My title is In accordance with Tex. Civ. Prac. & Rem. Code Ann. § 132.001, I declare as follows: I am the custodian of records at Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 77584 and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities. Attached are ________ pages of records. These are the original records or exact duplicates of the original records. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. It is also the regular practice of Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 77584 to make this type of record at or near the time of each act, event, condition, opinion, or diagnosis set forth in the record. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. It is also the regular practice of Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 77584 or this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them. The records were kept in the course of regularly conducted business activity. It is also the regular practice of Premier Chiropractic, located at 11470 Broadway, Suite 110, Pearland, TX 775846 to keep this type of record in the course of regularly conducted business activity. 6. It is the regular practice of the business activity to make the records. I declare under penalty of perjury that the foregoing is true and correct.” xecuted in ______________County, State of Texas, ___________ of _____________, 2022. Custodian of Records Declarant \ . $ \ \- EXHIBIT C In re North Cypress Medical Center Operating Co., Ltd. Supreme Court of Texas. | April 27, 2018 | 559 S.W.3d 128 | 2018 WL 1974376 Document Details Outline KeyCite: KeyCite Yellow Flag - Negative Treatment Synopsis Declined to Extend by In re Muller, Tex.App.- (p.1) Amarillo, November 6, 2020 Attorneys and texas Citation: In re N. Cypress Med. Ctr. Operating Co., Ltd., 559 Law Firms S.W.3d 128 (Tex. 2018) (p.1) All Citations: 559 S.W.3d 128, 61 Tex. Sup. Ct. J. 1038 Opinion (p.2) Search Details Dissenting Jurisdiction: Texas Opinion Delivery Details (p.10) Date: September 2, 2021 at 11:32 AM All Citations Delivered By: Art Aguilar (p.16) Client ID: IN RE NORTH CYPRESS Status Icons: © 2021 Thomson Reuters. No claim to original U.S. Government Works. In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 KeyCite Yellow Flag - Negative Treatment The Supreme Court, Lehrmann, J., held that Declined to Extend by In re Muller, Tex.App.-Amarillo, November 6, 2020 the trial court did not abuse its discretion in 559 S.W.3d 128 determining that the requested information was Supreme Court of Texas. relevant. IN RE NORTH CYPRESS MEDICAL CENTER Petition denied. OPERATING CO., LTD., Relator No. 16–0851 Hecht, C.J., dissented and filed opinion in | which Green and Guzman, JJ., joined. Argued November 9, 2017 | On Petition for Writ of Mandamus OPINION DELIVERED: April 27, 2018 | Attorneys and Law Firms Rehearing Denied November 16, 2018 R. James Amaro Jr., The Amaro Law Firm, Synopsis Houston, for Real Party in Interest. Background: Patient, who had been treated in hospital's emergency room following an Shelli M.J. Morrison, Byron L. Kelley, The automobile accident and who lacked health Morrison Law Firm, Athens, Chad M. Ruback, insurance, brought action for a declaratory The Ruback Law Firm, Dallas, for Relator. judgment that hospital's charges were unreasonable and that hospital's corresponding Diana L. Faust, R. Brent Cooper, Cooper $11,037 lien was invalid to the extent that & Scully, P.C., Dallas, for Amicus Curiae it exceeded a reasonable and regular rate CHRISTUS Health and Texas Health for services rendered. The 234th District Resources. Court, Harris County, Wesley R. Ward, J., Amy Kogan, Douglas D. Turek, Erin Ruth granted patient's motion to compel and ordered Hartung, The Turek Law Firm, PC, The hospital to produce information regarding its Woodlands, for Amicus Curiae Dallas County reimbursement rates from private insurers and Hospital District d/b/a Amici Health and public payers for the services that it provided Hospital System and Hunt Memorial Hospital to patient. Hospital petitioned for mandamus District d/b/a Hunt Regional Medical Center. relief. The Houston Court of Appeals, 14th District, denied petition. Hospital petitioned for Geoffrey A. Gannaway, Beck Redden, LLP, mandamus relief. Houston, for Amicus Curiae Memorial Hermann Health System. David King, Matthew B. Baumgartner, P. M. Schenkkan, Graves, Dougherty, Hearon © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 & Moody P.C., Austin, for Amicus Curiae reimbursement rates are irrelevant to whether Research & Planning Consultants, LP. its charges to the uninsured plaintiff were reasonable and that the trial court therefore Charles W. Bailey Jr., Law Offices of abused its discretion in ordering production Charles Bailey, Austin, George Nation III, of that information. We disagree. The LEHIGH UNIVERSITY, College of Business reimbursement rates sought, taken together, and Economics, Bethlehem, PA, for Amicus reflect the amounts the hospital is willing to Curiae The Alliance of Claims Assistance accept from the vast majority of its patients Professionals. as payment in full for such services. While not dispositive, such amounts are at least Juan Roberto Fuentes, The Fuentes Firm, P.C., relevant to what constitutes a reasonable Spring, for Amicus Curiae The Fuentes Firm, charge. Accordingly, we deny the hospital's P.C. petition for writ of mandamus. Opinion Justice Lehrmann delivered the opinion of the I. Background Court, in which Justice Johnson, Justice Boyd, Justice Devine, Justice Brown, and Justice Crystal Roberts was involved in an automobile Blacklock joined. accident on June 9, 2015, and was taken by ambulance to the emergency room at *129 Our procedural rules allow broad North Cypress Medical Center. North Cypress discovery of unprivileged information that released Roberts approximately three hours is “relevant to the subject matter of the later after performing a series of x-rays, pending action.” Tex. R. Civ. P. 192.3(a). This CT scans, lab tests, and other emergency includes information that may ultimately be services. Because Roberts was uninsured, inadmissible at trial so long as it “appears North Cypress billed her for the services at reasonably calculated to lead to the discovery its full “chargemaster” prices, which totaled of admissible evidence.” Id. The “subject $11,037.35. North Cypress also filed a hospital matter” of the underlying action, which lien in the amount of the cost of its services, involves the enforceability of a hospital lien minus payments and adjustments credited to securing payment of charges for services Roberts’ account. See Tex. Prop. Code § rendered to an uninsured patient, encompasses 55.002(a) (“A hospital has a lien on a cause of the reasonableness of those charges. action or claim of an individual who receives hospital services for injuries caused by an The trial court's order at issue in this accident that is attributed to the negligence of mandamus proceeding requires the defendant another person.”). hospital to produce information regarding its reimbursement rates from private insurers and *130 The liability insurer of the driver at fault public payers for the services it provided offered to settle the case for $17,380, attributing to the plaintiff. The hospital argues those $9,404 to medical expenses stemming from © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 North Cypress’s services. Roberts sought provider for 2011, 2012, 2013, 2014 and reduction of North Cypress's bill, and the 2015. parties negotiated but could not reach an .... agreement on the bill's amount.1 Roberts sued, seeking a declaratory judgment that North • Please state the Medicare reimbursement Cypress's charges were unreasonable and its rate for x-rays, CT scans, lab tests lien invalid to the extent it exceeds a reasonable and emergency room services, as you and regular rate for services rendered.2 North performed on the Plaintiff on June 9, 2015. Cypress counterclaimed on a sworn account for $8,278.31, the amount to which it had • Please state the Medicaid reimbursement previously offered to reduce its bill. rate for x-rays, CT scans, lab tests and emergency room services, as you 1 Roberts initially requested that the bill be reduced to performed on the Plaintiff on June 9, 2015. $3,500, which she characterized as “the reasonable and North Cypress objected to these discovery necessary charges ... for the treatment received based requests and moved for a protective on the geographic area and similarly sized facilities.” North Cypress offered to reduce the bill to $8,278.31, order, asserting that they sought irrelevant and Roberts countered with $6,269.33. North Cypress information and were overly broad. Roberts declined. filed a corresponding motion to compel. In 2 Roberts also asserted claims for fraudulent lien filing and an oral ruling on the record, the trial court for violations of the Texas Deceptive Trade Practices Act ordered North Cypress to produce the requested and the Texas Debt Collection Act. She further claimed that the lien is invalid because she was never formally information, though the court narrowed the admitted to the hospital. These claims are not relevant to scope to include only contracts “that cover the the instant discovery dispute. [time] period at issue in this case.” Roberts served requests for production and interrogatories on North Cypress, including the North Cypress moved for reconsideration, following: reiterating its relevance objection and adding that it would “suffer irreparable harm” from the • Please produce all contracts regarding disclosure of its “confidential and proprietary” negotiated or reduced rates for the hospital negotiated insurance contracts. The trial court services provided to Plaintiff in which denied the motion, prompting North Cypress Defendant is a party, including those to file a petition for writ of mandamus in the with Aetna, First Care, United Healthcare, court of appeals. The court of appeals denied Blue Cross Blue Shield, Medicare, and the petition, and North Cypress now seeks Medicaid. mandamus relief in this Court. .... • Please produce the annual cost report you II. Analysis are required to provide to a Medicare Administrative Contractor Medicare [sic], Mandamus is an extraordinary remedy granted as a Medicare certified institutional only when the relator shows that the trial © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 court abused its discretion and that no adequate Subject to certain conditions, a hospital has a appellate remedy exists. In re Prudential Ins. lien on the cause of action of a patient “who Co. of Am., 148 S.W.3d 124, 135–36 (Tex. receives hospital services for injuries caused by 2004). “The trial court abuses its discretion an accident that is attributed to the negligence by *131 ordering discovery that exceeds that of another person.” Id. (quoting Tex. Prop. permitted by the rules of procedure.” In re CSX Code § 55.002(a) ). The lien also attaches to Corp., 124 S.W.3d 149, 152 (Tex. 2003). We the proceeds of a settlement of the patient's address North Cypress's two challenges to the cause of action. Tex. Prop. Code § 55.003(a) discovery order in turn. (3). We have noted that the statute “is replete with language that the hospital recover the full amount of its lien, subject only to the right to question the reasonableness of the charges A. Relevance comprising the lien.” Bashara v. Baptist Mem'l North Cypress first argues that information Hosp. Sys., 685 S.W.2d 307, 309 (Tex. 1985); about reimbursement rates from insurers and see also Daughters of Charity Health Servs. v. government payers is not relevant to Roberts' Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007) claims about the enforceability of its hospital (noting that the amount of a hospital lien may lien. See Tex. R. Civ. P. 192.3(a) (parties not exceed “a reasonable and regular rate”).3 may obtain discovery of information that is “relevant to the subject matter of the pending 3 Notwithstanding these statements in Bashara and action”). Evidence is “relevant” if “it has any Linnstaedter, amici curiae Christus Health and Texas Health Resources argue that the hospital's charges tendency to make a fact [of consequence to the for services rendered, as distinguished from physician action] more or less probable than it would be charges and “charges for other services,” need not be without the evidence.” Tex. R. Evid. 401. And “reasonable” to be covered by a valid hospital lien. Compare Tex. Prop. Code § 55.004(b) (“A hospital as noted, evidence need not be admissible to be lien ... is for the amount of the hospital's charges for discoverable so long as it “appears reasonably services provided ....”), with id. § 55.004(c) (“A hospital calculated to lead to the discovery of admissible lien ... may also include the amount of a physician's reasonable and necessary charges for emergency hospital evidence.” Tex. R. Civ. P. 192.3(a). care services provided ....”), and id. § 55.004(d) (“A hospital lien ... does not cover ... charges for other Because the subject matter of this action services that exceed a reasonable and regular rate for the services[.]”). North Cypress does not make this argument involves a dispute over a hospital lien, in and has consistently taken the position that its charges are evaluating the relevance of the requested reasonable. Accordingly, we do not address the statutory- information we must begin with a discussion of interpretation argument amici present. Texas's hospital-lien statute, codified in Texas North Cypress challenges the trial court's Property Code chapter 55. This statute provides order requiring production of (1) its contracts hospitals an additional method of securing with private insurers regarding the negotiated payment from accident victims, encouraging reimbursement rates it accepts from those their prompt and adequate treatment. McAllen insurers for the services provided to Roberts, Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. (2) the reimbursement rates for those services of Tex., 433 S.W.3d 535, 537 (Tex. 2014). from Medicare and Medicaid, and (3) North © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 Cypress's annual Medicare cost reports for This case highlights the “two-tiered” healthcare certain years. North Cypress primarily argues billing structure that has evolved over the past that its negotiated reimbursement rates with several decades. In Haygood, on which North health insurance carriers are not relevant to its Cypress heavily relies, we described these tiers charges to an uninsured patient and therefore as encompassing (1) “ ‘list’ or ‘full’ rates [also are not discoverable. It urges that because described as chargemaster rates] sometimes Roberts had neither *132 private health charged to uninsured patients, but frequently insurance nor Medicare or Medicaid coverage uncollected,” and (2) “reimbursement rates for when she was treated, she is not entitled to patients covered by government and private the benefit of those negotiated rates. North insurance.” Id. at 393 (footnotes omitted). Cypress also cites our holding in Haygood v. De We noted that “[f]ew patients today ever pay Escabedo that any billing adjustment reflected a hospital's full charges,” id. (alteration in in the negotiated rates belongs to the insurance original) (citing Linnstaedter, 226 S.W.3d at carrier, not the patient. 356 S.W.3d 390, 394–95 410), but that hospitals are pressured to set (Tex. 2012). According to North Cypress, this these charges as high as possible because further highlights the distinction between billed reimbursement rates typically increase along charges and reimbursement rates.4 with them, id. 4 Amici curiae Parkland Health & Hospital System, Hunt Commentators lament the increasingly Regional Medical Center, Christus Health, Texas Health arbitrary nature of chargemaster prices, noting Resources, and Memorial Hermann Health System that, over time, they have “lost any direct submitted briefs in support of North Cypress's petition. connection to costs or to the amount Roberts responds that the insurance contracts the hospital actually expect[s] to receive are necessary to establish whether the amount in exchange for its goods and services.” North Cypress charged Roberts for emergency George A. Nation III, Hospital Chargemaster services is excessive in comparison to the Insanity: Heeling the Healers, 43 Pepp. L. rates for the same services provided to other Rev. 745, 755 (2016) (citing Christopher patients in the same hospital. Roberts avers P. Tompkins et al., The Precarious Pricing that the contracts will show that North Cypress System for Hospital Services, 25 Health is customarily and regularly paid significantly Aff. 45, 48 (2006) ). Yet hospitals have less for those services, making the contracts incentive to continue raising chargemaster relevant to the reasonableness of the charges.5 prices because of the positive correlation between those prices and hospital revenue. Id. 5 Amici curiae The Alliance of Claims Assistance at 755–56; see also George A. Nation III, Professionals, The Fuentes Firm, P.C., and Research & Determining the Fair and Reasonable Value Planning Consultants, LP, submitted briefs in support of of Medical Services: The Affordable Care Roberts. Act, Government Insurers, Private Insurers and Uninsured Patients, 65 Baylor L. Rev. 1. Healthcare Pricing 425, 454 (2013) (“In one form or another, a hospital's billed (chargemaster) charges are © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 used indirectly to determine the ultimate dollar regular rate would be.7 And because of the way level of reimbursement payments.”).6 This chargemaster pricing has evolved, the charges trend continues notwithstanding the fact that themselves are not dispositive of what is hospitals generally expect to recover far less reasonable, irrespective of whether the patient than they officially “charge.” E.g., Tompkins, being charged has insurance.8 By contrast, a 25 Health Aff. at 48 (“The gap between charges hospital's reimbursements from private insurers and actual payments (net patient revenues) now and public payers comprise the vast majority averages about 255 percent and is growing of its payments for services rendered. We fail rapidly.”). to see how the amounts a hospital accepts as payment from most of its patients are wholly 6 The author of these two law review articles, George A. irrelevant to the reasonableness of its charges Nation III, is counsel of record for amicus curiae The to other patients for the same services. Alliance of Claims Assistance Professionals. 7 North Cypress accuses Roberts of utilizing the full amount of the billed charges to negotiate a favorable *133 2. Evaluating Reasonableness of settlement with the liability insurer and then seeking a Hospital Charges windfall by challenging those charges as unreasonable. To the extent North Cypress asserts some sort of estoppel Citing Haygood, North Cypress notes that its defense in the underlying suit, we fail to see how it legal right to be paid for Roberts' treatment forecloses discovery on a central issue. is not offset by a negotiated agreement with 8 North Cypress contends that it “charges all patients an insurance carrier. See Haygood, 356 S.W.3d the same thing for any particular service, regardless of whether the patient has health insurance.” This at 391 (holding that a plaintiff's recovery of argument reflects the fact that chargemaster prices are medical expenses incurred is limited, as is technically listed on all patient bills, but ignores the fact the evidence at trial, “to expenses that the that, for insured patients, the amount actually accepted as payment after applying the negotiated discount provider has a legal right to be paid”). The is typically far lower. Haygood, 356 S.W.3d at 391 dissent similarly opines that hospitals should (noting the “great disparities between amounts billed and not be limited “to charging an uninsured patient payments accepted” from insurers). insurer-negotiated reimbursement rates.” Post Courts in several other jurisdictions agree. at 139. According to North Cypress and the In Bowden v. Medical Center, 297 Ga. 285, dissent, this renders irrelevant any adjustments 773 S.E.2d 692 (2015), the Supreme Court that would have been applicable if Roberts of Georgia recently considered the exact issue were covered by private health insurance, presented here. That case also involved the Medicare, or Medicaid. validity and amount of a hospital lien for the reasonable charges for an uninsured's patient's However, the issue is not whether Roberts care. Id. at 693. The patient, Bowden, sought may take advantage of insurance she did not information and documents regarding amounts have. Rather, because a valid hospital lien may the hospital charged insured patients for the not secure charges that exceed a reasonable same type of care during the same time period. and regular rate, the central issue in a case Id. The court held that such documents were challenging such a lien is what a reasonable and discoverable, concluding: © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 In re North Cypress Medical Center Operating Co., Ltd., 559 S.W.3d 128 (2018) 61 Tex. Sup. Ct. J. 1038 were covered by government programs. 52 The amounts that TMC charged to (and N.E.3d 804, 805–06, 810 (Ind. Ct. App. 2016).9 agreed to accept as payment in full from ) other patients treated at the same hospital for 9 Not all courts agree on the relevance of such information. the same type of care during the same general In Parnell v. Madonna Rehabilitation Hospital, Inc., for time frame that Bowden was treated may example, the Nebraska Supreme Court upheld summary not be dispositive of whether TMC's charges judgment for the hospital on the amount of its hospital lien. 258 Neb. 125, 602 N.W.2d 461, 464–65 (Neb. for Bowden's care were “reasonable” under 1999). Noting that the statute at issue provided for a lien [Georgia's hospital lien statute], to the extent on the amount due for the hospital's “usual and customary that the other patients were not similarly charges,” the court summarily held that consideration of the “amounts actually collected,” rather than the amount situated in other economically meaningful charged, would contravene the statute's plain language. ways. But that does