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The Law Offices of SPERO T.
205 State Street
Post Office Box 808
Harrisburg, PA 17108-0806
(717) 238-4286
By: SPERO T. LAPPAS,
Pa. Supreme Court
ATTORNEY FOR THE PLAINTIFF
LAPPAS
Esquire
identification no. 25745
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C. CIVIL ACTION - LAW c
Plaintiff NO 99_ y??, /J'am` /?/?i?
V. W ILA Il 6
' _'? c ./ oI
PENNSYLVANIA JURY TRIAL DEMANDED
BLUE SHIELD,
Defendant
NOTICE TO DEFEND AND CLASM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections tot he
claims set forth against you. You are warned that if you fail to
do so, the case may proceed without you and a judgement may be
entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE
1 COURTOUSE SQUARE
CARLISLE, PA 17023
(717) 240-6200
The Law Offices of SPERO T. LAPPAS
Page 1
A
NOTICIA
LE MAN DEMANDADO A USTED EN LA CORTE. Si usted quiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir de 1a fecha de la
demanda y la notificacion. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en forma
escrita sus persona. Sea avisado que si usted no se defiende, la
corte tomara medidas y puede entrar una Orden contra usted sin
previo aviso o notificacion y por cualquier quaja o alivio que es
pedido en la peticion de demands. Usted puede perder dinero o sus
propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE
I COURTOUSE SQUARE
CARLISLE, PA 17013
(717) 240-6200
RESPECTFULLY SUBMITTED,
The Law Offices of SPERO T. LAPPAS
SPERO T. LAPPAS, ESQUIRE
ATTORNEYS FOR THE PLAINTIFF
The Law Offices Of SPERO T. LAPPAS
Page 2
r
The Law Offices of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
By: SPERO T. LAPPAS, Esquire
Pa. Supreme Court identification no. 25745
ATTORNEY FOR THE PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C.
Plaintiff
V.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD,
Defendant
No.
9 9- yoa-o 61, --L9 7?',.-
CIVIL ACTION - IN LAW AND EQUITY
JURY TRIAL DEMANDED
COMPLAINT
RESPECTFULLY SUBMITTED,
The
By:
of SPERO T. LAPPAS
re
5
The Law Offices of SPERO T. LAPPAS
Page 1
Pa. Supreme Ct. ID no. 2574
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFF
4 ,
COMPLAINT
AND NOW, comes the Plaintiff, by and through his attorneys,
The Law Offices of SPERO T. LAPPAS, and makes this COMPLAINT
respectfully representing as follows.
1. Plaintiff LESLIE WENRICH, D.C., is an adult individual who
has been at all times relevant to this cause of action a Doctor of
Chiropractic, duly authorized to practice that profession and
licensed by the Commonwealth of Pennsylvania.
2. Defendant HIGHMARK CORPORATION (hereinafter "Highmark") is
a corporation doing business and operating in and under the laws of
the Commonwealth of Pennsylvania with a place of business at 1800
Center Street, Camp Hill, Pa., Cumberland County, Pennsylvania.
3. Highmark is in the business of providing health and
medical insurance benefits to customer subscribers. Pursuant to
this business, Highmark receives and pays qualifying medical and
doctor bills for its subscribers.
4. At all times material to this cause of action and for all
acts, conduct and omissions described in this complaint or
otherwise material and relevant to the cause of action stated
herein, the Defendant acted through agents and servants (some of
whom are named in this Complaint and some of which are not named in
this Complaint) for whose acts, conduct and omissions the Defendant
is responsible and liable.
5. All such agents and servants of the Defendant acted within
the course and scope of their employment with respect to all acts,
The Law Offices of SPERO T. LAPPAS
Page 2
A
conduct and omissions described or referred to in this Complaint or
otherwise relevant to this cause of action.
6. At various and diverse dates within the statute of
limitations, Dr. Wenrich sent bills to Highmark for payment in
accordance with the Highmark subscriber agreements which covered
certain of Dr. Wenrich's patients.
7. After Dr. Wenrich submitted these bills, Highmark sent
notices by mail to several of the covered patients telling them
that the bills were disapproved for payment.
8. As part of the message by which these patients were
notified that their bills were disapproved for payment, Highmark
told the patients that Pennsylvania Blue Shield had "determined"
that Dr. Wenrich's equipment was substandard. This "determination"
was cited as the reason, or one of the reasons, that the bill was
being disapproved for payment. A specimen notice is attached
hereto as Exhibit I-
9. In fact, Highmark had made no such determination at all.
In a letter dated may 9, 1996 and signed by Emelie Sconing,
Highmark admits that it was simply assuming that Dr. Wenrich's
equipment did not meet the appropriate standards. A true copy of
this letter is attached hereto as Exhibit 2.
10. There was never any "determination" as Pennsylvania Blue
Shield falsely reported to the Plaintiff's patients.
11. The assumption of Highmark that Dr. Wenrich's equipment
was substandard was based upon Highmark's feeling that Dr. Wenrich
The Law Offices of SPERO T. LAPPAS
Page 3
A
had allegedly failed to reply timely tc Highmark's requests for
certain information about Dr. Wenrich's office equipment.
12. In fact, Highmark had never made any determination that
Dr. Wenrich's equipment was substandard.
13. In fact, Dr. Wenrich's equipment was not substandard.
14. To the best of the Plaintiff's information as of the
filing of this complaint at least six patients, and maybe more,
received these false and defamatory communications from the
defendant. The Defendant has supplied a list of patients who
received the offending Notice. This list is attached hereto as
Exhibit 3.
is. All of the defendant's statements of or about the
Plaintiff as described above are and were false and defamatory to
the Plaintiff. They tend to blacken the Plaintiff's reputation or
expose him to public hatred, contempt, or ridicule, or to injure
him in her business or profession.
16. All of these statements and remarks expressed and
communicated their defamatory meaning about the Plaintiff either
directly and overtly or by reasonable implication, insinuation, and
innuendo.
17. Each of the above-described statements and remarks when
heard or read in its totality and context is and was defamatory of
the Plaintiff.
18. Furthermore, each statement and remark is and was
defamatory inter alia in that the defendants thereby described the
The Law Offices of SPERO T. LAPPAS
Page 4
a
Plaintiff as doctor who uses or has used substandard equipment to
treat his patients or to make diagnoses.
19. All of these statements and remarks and the defamatory
content thereof applied to the Plaintiff either overtly or by
reasonable implication.
20. All of these statements and remarks were published to
persons who understood them to refer to the Plaintiff, and who
understood them as intended to be applied to the Plaintiff.
12. The defamatory content of these statements is false and
untrue.
21. The Defendant in connection with the making and
publishing of these statements and remarks were reckless, or in the
alternative, they were negligent.
22. None of these publications, statements or remarks was
privileged; in the alternative, any privilege which would have
otherwise attached to the Defendants and their publication of these
statements and remarks did not attach by virtue of actual malice
and/or abuse, recklessness, reckless disregard of the falsity of
the publication, or negligence, or otherwise.
23. As the direct, legal, and proximate result of the
Defendants actions as described in this Complaint, the Plaintiff
has suffered actual harm in that, inter alia,
a. he has suffered the impairment of reputation and
standing in the community;
b. he has been libeled, slandered, and defamed in
The Law Offices of SPERO T. LAPPAS
Page 5
k
connection with his competence to carry on his
business or profession;
C. he has suffered great and extreme personal
humiliation, mortification, embarrassment, mental
anguish and suffering;
d. he has been exposed to public contempt and
ridicule;
e. he has been injured in her business or profession.
24. In 1997, Plaintiff initiated a lawsuit in the Court of
Common Pleas of Cumberland County entitled Wenri v nnsylv_ania
B hield (No. 97-2288 CIVIL) bringing the same claim as is
described above. That Complaint is attached as Exhibit 4 hereto
and incorporated into this Complaint by reference.
25. Highmark challenged the propriety of that lawsuit by
filing preliminary objections arguing that the Plaintiff was
required to bring his claim before the Highmark medical Review
committee (hereinafter IIHMRCII) in the first instance.
26. The Court agreed and dismissed the Plaintiff Is Complaint
for failure to submit the case to a mandatory alternative dispute
resolution mechanism, in violation of Pa.R.C.P 1028(6). This Order
and Opinion are attached hereto and marked collectively as Exhibit
5.
27. The Plaintiff did submit his claim to the HMRC.
28. Thereafter, the Plaintiff complained to the HMRC and
Highmark about the unfairness of the procedures established for the
The Law Offices of SPERO T. LAPPAS
Page 6
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Plaintiff's hearing.
29. HMRC's counsel, Attorney Thomas Wood, wrote to
plaintiff's counsel, assuring the Plaintiff (among other things)
that defendant Highmark and the HMRC had cured the defects in the
composition of the medical review committee which had led the
Pennsylvania Supreme Court in Rudolph v. Pennsylvania Blue Shield,
--- Pa. ---, 717 A.2d 508 (1998) to hold that the Committee and
its decisions were unconstitutional. (See Exhibit 6.)
30. Specifically, counsel for the committee assured the
Plaintiff that "the objections raised by the Supreme Court have
subsequently been addressed and we believe the composition of the
Committee now meets the standards suggested by the Supreme Court".
31. The "objections" raised by the Supreme court dealt with
the fact that as long as the HMRC was composed of members of the
Highmark Corporation or members of its board of directors, then the
i
committee was ipso facto unfair and partial.
I
32. In fact, the assurances of Attorney Wood's March 30
letter were not accurate and at least three members of the current
HMRC are members of the Highmark Corporation: specifically, W.
Scott Nettrour, Robert Albertini (who was Chairman of the Medical
Review Committee) and William Daiber.
33. The defendant was well aware of this composition. In
fact Highmark has known that members of the HMRC were members of
the Corporation and it was Highmark's intention to allow that
situation to persist in spite of Rudolph. Neither the defendant
The Law Offices of SPERO T. LAPPAS
Page 7
nor any members of the HMRC disclosed to Plaintiff before the
hearing that some HMRC members were members of the corporation.
34. The Plaintiff and his Counsel appeared for an alleged
hearing before the HMRC on or about May 4, 1999 and thereafter the
HMRC issued its "decision" dated June 1, 1999 dismissing
Plaintiffs claims. (Exhibit 7)
35. The HMRC's June i "decision" did not properly address any
of the issues raised by Plaintiffs claim.
36. Furthermore, the proceedings, procedure, decision and
adjudication of the HMRC were defective in inter alia the following
ways, and these defects, individually and in combination with one
another, render the HMRC decision unjust, inequitable and
unconscionable, and require that this court vacate, set aside,
modify, and reverse the decision of the HMRC and allow this case to
proceed to trial by jury in the Court of Common Pleas.
a. The Plaintiff was not allowed to call witnesses and
his request that Highmark employees appear to offer
evidence in his favor was denied.
b. The Plaintiff was afforded no opportunity to
present evidence, other than his own statements and
the presentation of his counsel.
C. The Plaintiff was afforded no opportunity to
challenge through witnesses or cross-examination
the evidence presented by the defendant.
d. The HMRC was constituted in such a way as to be
The Law Offices of SPERO T. LAPPAS
Page 8
r ,
unfair, partial, biased and predisposed in favor of
Highmark and against the Plaintiff in that some of
the members of the HMRC were members of the
Highmark Corporation.
e. In fact Article x, section 2 of the Defendants
bylaws requires that "a majority of the members of
the medical review committee shall be providers who
are members of the corporation.° (The portion of
the defendants bylaws dealing with the HMRC are
attached hereto as Exhibit 8.)
f. The defendant's bylaws (Article X) do not empower
the HMRC to make an enforceable monetary award to
the Plaintiff, and therefore the HMRC did not have
authority to address Plaintiff's claim.
g. The HMRC which heard the Plaintiff's case was
constituted in such a fashion as to be unfair to
Plaintiff in that it had no Doctors of
Chiropractic.
h. Plaintiff believes and therefore avers that the
members of the HMRC are paid in some fashion by, or
receive some other advantage or emolument from, the
defendant Highmark Corporation. This does or may
prejudice the HMRC members in favor of Highmark,
i. Plaintiff believes and therefore avers that the
members of the HMRC are health care providers who
The Law Offices of SPERO T. LAPPAS
Page 9
r
rely on Highmark for reimbursement and payment of
the bills which they (the HMRC members) submit to
Highmark. Accordingly, Highmark has the economic
and practical power to cause the HMRC members
considerable inconvenience and loss in the event
that Highmark becomes disenchanted with the HMRC
members. This does or may prejudice the HMRC
members in favor of Highmark.
j. The dispute resolution mechanism imposed upon the
Plaintiff by the Defendant runs afoul of due
process of law, in that inter alia it did not
provide the Plaintiff with the opportunity to be
heard and to present his claim in a meaningfully
orderly proceeding before an impartial tribunal.
k. Plaintiff believes and therefore avers that the
members of the HMRC are selected by the Defendant
with no input or right of selection by the
Plaintiff.
1. The HMRC decision is the result of fraud with
respect to the Defendant's non-compliance with the
Rudolph decision.
M. The HMRC members were incompetent to decide the
issues of defamation raised by the Plaintiff's
claim. Indeed, the HMRC process is not designed or
intended to decide cases of this sort.
The Law Offices of SPERO T. LAPPAS
Page 10
n. The decision of the I1MRC is against and contrary to
the evidence.
o. The decision of the HMRC is against and contrary to
the weight of the evidence.
p. The decision of the HMRC is against and contrary to
the applicable law.
q. The HMRC decision mistakenly and unlawfully
considers the Plaintiff's alleged breach of his
contractual obligations to Highmark to be a defense
to the defendant's defamation of the Plaintiff. In
fact, contract breach is not a defense to
defamation.
r. The HMRC decision mistakenly and unlawfully
considers sections B-9 and B-15 of the Blue Shield
Regulations for Participating Provide= to be
relevant to the Plaintiff's claim. In fact,
neither one of those sections has any relevance to
this case whatsoever.
S. The HMRC decision mistakenly and unlawfully held
that "Blue Shield acted properly and within its
rights when it denied the claims submitted by Dr.
Wenrich and when it promptly notified its members
of the reason for the denial." In fact, the
defendant's complained of actions went far beyond
any lawful notification and constituted defamation
The Law Offices of SPERO T. LAPPAS
Page 11
against the Plaintiff.
COUNT 1 -- IN EQUITY
37. All other paragraphs of this complaint are hereby
incorporated into this count by reference thereto and made a part
hereof.
38. WHEREFORE, the Plaintiff requests that this court enter
judgment in his favor and against this Defendant. Plaintiff also
requests the following relief:
a. That the court invalidate, reverse, vacate and set
aside the decision of the HMRC ion this case.
b. That the Court enter an order requiring that the
HMRC be disbanded and that the Defendant be
prohibited from requiring submission of any
disputes to a medical review committee until a
committee is constituted with a composition and
procedures which are legally sufficient and
adequate.
C. That the Court order that this case shall proceed
to trial by jury in the Cumberland County Court of
Common Pleas.
d. That the Court thereafter enter judgment in favor
of the Plaintiff and against the defendant in an
amount in excess of the local limits requiring
reference to compulsory arbitration, including
compensatory and punitive damages, plus costs of
The Law OffiCes of SPERO T. LAPPAS
Page 12
litigation and allowable interest.
COUNT 2 -- IN LAW
39. All other paragraphs of this Complaint are hereby
incorporated into this count by reference thereto and made a part
hereof.
40. WHEREFORE, the Plaintiff requests that this court enter
judgment in his favor and against this Defendant. Plaintiff also
requests the following relief:
a. That the Court invalidate, reverse, vacate and set
aside the decision of the HMRC ion this case.
b. That the Court enter an order requiring that the
HMRC be disbanded and that the Defendant be
prohibited from requiring submission of any
disputes to a medical review committee until a
committee is constituted with a composition and
procedures which are legally sufficient and
adequate.
C. That the Court order that this case shall proceed
to trial by jury in the Cumberland County Court of
Common Pleas.
d. That the Court thereafter enter judgment in favor
of the Plaintiff and against the defendant in an
amount in excess of the local limits requiring
reference to compulsory arbitration, including
The Law Offices of SPERO T. LAPPAS
Page 13
compensatory and punitive damages, plus costs of
litigation and allowable interest.
RESPECTFULLY SUBMITTED,
The?S of SPERO T. LAPPAS
By:
Pa. Supreme Ct. ID no. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
The Law Offices of SPERO T. LAPPAS
Page 14
TABLE OF EXHIBITS
1. Specimen of Defendant S Notice to Plaintiff Is patients.
2. PBS May, 1996 letter to Plaintiff.
3. PBS list of patients who received the offending notice.
4. Complaint
5. Order and Opinion.
6. Attorney Woods letter to Plaintiffs counsel.
7. HMRC decision.
8. HMRC bylaws
The Law Offices of SPERO T. LAPPAS
Page 15
1t'eilnvylv;enia -L-,(PLANATION OF BENEFITS PENNSYLVANIA BLUE SHIELD
?3IUCSI11l`I(I KEEP FOR YOUR TAX RECORDS ro BOXEe90636ICE
at. WWI IM elw Gan Pbn al Pnnnylnnl? on IMgnM?nl CAMP "ILL PA 17009-0036
Uaww? el IM elw Gsn ?M qlw WIN A...IMIn New
Subscriber: DENNIS L SCHNECK
ID Number: 168323241 Page: 1 of 1
Patient: CHARLOTTE B SCHNECK
Claim Number: 56255012612 Datel 09/12/96
Provider: LESLIE W WENRICH DC
(000115611)
PROCEDURE DESCRIPTION
PROCEDURE CODE SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID AMOUNT
(NLMBER OF SERVICES) DATEIS) CHARGE REMARKS
NOT PAID
SPINAL KRAY (001) 07/00/96 -?"
72050 45.00 .00 .00 45.00 05145
SPINAL KNAY 1001) 07/08/9e 75.00
72100 •00 •00 75.00 D5145
D5145 Pennsylvania Blue Shield has determined that the equipment used to provide this
diagnostic test does not meet the accepted standard of quality in the community.
Therefore, no payment Will be made. A participating provider may not bill the
patient for this service.
?lZ" l ?l 0 15?
P?
1.,.Ill,?llllll??lll???ll?l,Il.I.„I??il„?III?II??IIII?I?I??I
DENNIS L SCHNECK
RD 1 BOX 368
PINE GROVE PA 17963-9732
-5J,, Y `e,I EXHIBIT
THIS IS NOT A BILL
HAVE A QUESTION? PLEASE CALL (717) 731-8080 OR 1-600-345-3806.
(Service for the Deaf via TOO Equipment is available at 1-800-345-3848.) N0001987
lk? 46,
,"Minsylvnflial
liluctilli?-Icl
(-amp Ildl. 1'Lnmv1van,a 1711X4
M ?InM 1 ?rN M ?? wh UN, MN M?'wNr N,?.n
CERTIPISD MAIL
RFTV,RN RSCSIpT gCQ g T6D
May 9, 1996
Leslie W. Wenrich, D.C.
424 W. Grand Ave.
Tower City, PA 17980.1010
Dear Doctor Wenrich:
In 1993, Pennsylvania Blue Shield initiated a review of the technical
quality of diagnostic x-rays by sending surveys to providers who reported
x-rays performed in their offices to Blue Shield during 1992. Following
our review of the completed surveys, we determined that we should review
actual x-ray fling for all providers who had no quality control program
in place, whose x rays were processed manually, or who failed to respond
to the survey. You fall into one of these three groupings.
We are now bringing this project to a close and you are one of the very
frw providers who have failed to forward x-rays for review, as requested.
Although we have made repeated attempts to determine whether your x-rays
meet the accepted standard of quality in the community, we have been
unable to do so. Therefore, we must assume that they do not meet that
standard. Effective 30 days from the date of this letter, no further
payment will be made for x-rays taken in your office. Payment for the
x-rays will be denied with the following message: -Pennsylvania Blue
Shield has determined that the equipment used to provide this x-ray does
not meet the accepted standard of quality in th?i community. Therefore, no
payment will be made. A participating provider may not bill the patient
for this service."
The subscriber will also receive the same message on his or her
Explanation of Benefits. Please note that, as a participating provides
with Pennsylvania Blue Shield you may not bill the subscriber for therm
denied services.
You have the right to appeal this decision should you 90 desire. 21t
order to do so, you will have to provide x-rays for review by a
consultant. If you wish to do this, or if you have any quentiund
EXHIBIT
2.
Leslie Wenrick D.C.
#115611
l alien__ is Nam Agreement Da e f
___S o rvice
Lawrence Bensinger 180.56-3696 06-08-94
Roxanne Buffington D6276246 01-10-94
Judy Gass 180-38-0693 06-17-94
Barbara A. Klinger 184-34-1214 08-01-94
Mary Smelt zer 19740-8554
10-24-94
Roy E. Williard 192-304826
10-OS-94
EXHIBIT
? 3
Leslie W. Wenrich, D.C.
Page Two
concerning this issue, please do not hesitate to contact me. Z can tie
reached at (717) 767.3207.
Sincerely, /
Emeli! A. Sconing
Manager
Benefits Utilization Management
EAS/tnn
s
The Law Offices of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, Pennsylvania 17108-0808
Telephone (717) 238-4286
By: SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Court identification no. 25745
ATTORNEYS FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C. CIVIL ACTION - LAW
Plaintiff
NO. S. 1997
V. --
PENNSYLVANIA JURY TRIAL DEMANDED
BLUE SHIELD,
Defendant
COMPLAINT
AND NOW, comes the Plaintiff, by and through his attorneys,
The Law Offices of SPERO T. LAPPAS, and makes this Complaint
against the above-captioned Defendants, respectfully representing
as follows:
1. Plaintiff LESLIE WENRICH, D.C., is an adult individual who
has been at all times relevant to this cause of action a Doctor of
Chiropractic, duly authorized to practice that profession and
licensed by the Commonwealth of Pennsylvania.
2. Defendant PENNSYLVANIA BLUE SHIELD (hereinafter "PBS") is
a corporation doing business and operating in and under the laws of
the Commonwealth of Pennsylvania with a place of business at 1800
Center Street, Camp Hill, Pa., Cumberland County, Pennsylvania.
The Law Office_a-nfisPERn T. LAPPAS
EXHIBIT --I Page 3
3. PBS is in the business of providing health and medical
insurance benefits to customer subscribers. Pursuant to this
business, PBS receives and pays qualifying medical and doctor bills
for its subscribers.
4. At all times material to this cause of action and for all
acts, conduct and omissions described in this Complaint or
otherwise material and relevant to the cause of action stated
herein, the Defendant acted through agents and servants (some of
whom are named in this Complaint and some of which are not named in
this Complaint) for whose acts, conduct and omissions the Defendant
is responsible and liable.
5. All such agents and servants of the Defendant acted within
the course and scope of their employment with respect to all acts,
conduct and omissions described or referred to in this Complaint or
otherwise relevant to this cause of action.
6. At various and diverse dates within the statute of
limitations, Dr. Wenrich sent bills to PBS for payment in
accordance with the PBS subscriber agreements which covered certain
of Dr. Wenrich's patients.
7. After Dr. Wenrich submitted these bills, PBS sent notices
by mail to several of the covered patients telling them that the
bills were disapproved for payment.
8. As part of the message by which these patients were
notified that their bills were disapproved for payment, PBS told
the patients that Pennsylvania Blue Shield had "determined" that
The Law Offices of SPERO T. LAPPAS
Page 4
Dr. Wenrich's equipment was substandard. This "determination" was
cited as the reason, or one of the reasons, that the bill was being
disapproved for payment. A specimen notice is attached hereto as
Exhibit 1.
9. In fact, PBS had made no such determination at all. In a
letter dated May 9, 1996 and signed by Emelie Sconing, PBS admits
that it was simply assuming that Dr. Wenrich's equipment did not
meet the appropriate standards. A true copy of this letter is
attached hereto as Exhibit 2.
10. There was never any "determination" as Pennsylvania Blue
Shield falsely reported to the Plaintiffs patients.
11. The assumption of PBS that Dr. Wenrich's equipment was
substandard was based upon PBSIS feeling that Dr. Wenrich had
allegedly failed to reply timely to PBS's requests for certain
information about Dr. Wenrich's office equipment.
12. In fact, PBS had never made any determination that Dr.
Wenrich's equipment was substandard.
13. In fact, Dr. Wenrich's equipment was not substandard.
14. To the best of the Plaintiffs information as of the
filing of this complaint at least six patients, and maybe more,
received these false and defamatory communications from the
defendant. The Defendant has supplied a list of patients who
received the offending Notice. This list is attached hereto as
Exhibit 3.
15. All of the defendant's statements of or about the
The Law Offices of SPERO T. LAPPAS
Page 5
Plaintiff as described above are and were false and defamatory to
the Plaintiff. They tend to blacken the Plaintiffs reputation or
expose him to public hatred, contempt, or ridicule, or to injure
him in her business or profession.
16. All of these statements and remarks expressed and
communicated their defamatory meaning about the Plaintiff either
directly and overtly or by reasonable implication, insinuation, and
innuendo.
17. Each of the above-described statements and remarks when
heard or read in its totality and context is and was defamatory of
the Plaintiff.
18. Furthermore, each statement and remark is and was
defamatory inter alia in that the defendants thereby described the
Plaintiff as doctor who uses or has used substandard equipment to
treat his patients or to make diagnoses.
19. All of these statements and remarks and the defamatory
content thereof applied to the Plaintiff either overtly or by
reasonable implication.
20. All of these statements and remarks were published to
persons who understood them to refer to the Plaintiff, and who
understood them as intended to be applied to the Plaintiff.
12. The defamatory content of these statements is false and
untrue
21. The Defendant in connection with the making and
publishing of these statements and remarks were reckless, or in the
The Law Offices of SPERO T. LAPPAS
Page 6
alternative, they were negligent.
22. None of these publications, statements or remarks was
privileged; in the alternative, any privilege which would have
otherwise attached to the Defendants and their publication of these
statements and remarks did not attach by virtue of actual malice
and/or abuse, recklessness, reckless disregard of the falsity of
the publication, or negligence, or otherwise.
23. As the direct, legal, and proximate result of the
Defendants actions as described in this Complaint, the plaintiff
has suffered actual harm in that, int a j ,
a. he has suffered the impairment of reputation and
standing in the community;
b. he has been libeled, slandered, and defamed in
connection with his competence to carry on his
business or profession;
C. he has suffered great and extreme personal
humiliation, mortification, embarrassment, mental
anguish and suffering;
d. he has been exposed to public contempt and
ridicule;
e. he has been injured in her business or profession.
The Law Offices Of SPERO T. LAPPAS
Page 7
24. WHEREFORE, the Plaintiff requests that this court enter
judgment in his favor and against this Defendant in an amount in
excess of the local limits requiring reference to compulsory
arbitration, plus costs of litigation and allowable interest.
RESPECTFULLY SUBMITTED,
The L""L'LC:e s of S E T. LAPPAS
By:
PERO T. LA PPAS, Esquire
Pa. Supreme Ct. ID no. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
The Law Offices of SPERO T. LAPPAS
Page 8
TABLE OF EXHIBITS
1. Specimen of Defendant's Notice to Plaintiffs patients.
2. PBS May, 1996 letter to Plaintiff.
3• PBS list of patients who received the offending notice.
The Law Offices Of SPERO T. LAPPAS
Page 9
LESLIE WENRICH, D.C., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 97.2288 CIVIL TERM
HIGHMARK, INC. d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant ; CIVIL ACTION -LAW
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J. AND HESS. J.
ORDER OF COURT
AND NOW,, 30 , 1998, Plaintiff's Complaint is
dismissed for failure to submit this dispute to the required alternative dispute
resolution process. Plaintiff is hereby required to submit his complaint to the
appropriate Review Committee.
C;ito;'ii? iir'i•1i?i101t
11998!
FA
Spero T. Lappas, Esquire
205 State Street, P.O. Box 808
Harrisburg, PA 17108-0808
.By the Court,
1-1 offer P.J.
r
Bridget E. Montgomery, Esquire
Eckert, Seamans, Cherin & Mellot LLC
213 Market Street, P.O. Box 1248
Harrisburg, PA 17108-1248 EXHIBIT
I
LESLIE WENRICH, D.C.,
Plaintiff
V.
HIGHMARK, INC. d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2288 CIVIL TERM
CIVIL ACTION - LAW
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J. AND HESS J
PINION
HOFFER, P.J.:
This opinion concerns Defendant's preliminary objections to Plaintiff's
complaint. Leslie Wenrich, D.C. ("Plaintiff") filed suit.against Highmark, Inc. ('PBS"
or "Defendant') for defamation. Plaintiff is a doctor of chiropractic who is a
participating provider with PBS. Wenrich claims he sent bills to PBS for payment
in accordance with the PBS provider agreement.- Wenrich alleges that PBS
refused to pay these bills and sent notices to the applicable patients stating that
the reason for non-payment was that Wenrich's equipment was substandard.
Defendant claims that Plaintiff failed to provide the necessary information that
would have allowed PBS to determine the quality of Plaintiff's equipment. PBS has
filed a preliminary objection requesting that this case be dismissed and sent to
97-2288 CIVIL TERM
alternative dispute resolution as required under the Regulations for Participating
Providers.' We now find that Plaintiff is required to submit his complaint to the
appropriate alternative dispute resolution process before pursuing a remedy in the
court system.
DISCUSSION
Defendant Is a Pennsylvania non-profit professional health services
corporation which was organized and is currently operating pursuant to the
Pennsylvania Health Services Plan Corporation Act. This Act states that 4(a]II
matters, disputes or controversies relating to the professional health services
rendered by the health service doctors... shall be considered and determined
only by health service doctors as selected in a manner prescribed In the by-laws
of the professional health service corporation." 40 Pa. C.S.A. Section 6324(c)
(1995).
The By-Laws of the Medical Service Association of Pennsylvania state that
"(a]II matters, disputes or controversies arising out of the relationship between the
Corporation and the professional health care providers... shall be considered and
' Defendant's second preliminary objection requests that, in the alternative
of sending this complaint to alternative dispute resolution, this Court dismiss
Plaintiff's Complaint for failure to state a claim upon which relief can be granted.
Because of the action this Court is taking today, there is no need to decide
Defendant's alternative request.
2
97-2288 CIVIL TERM
determined by one of two Review Committees.' Article X, Sec. 1 (1995).
PBS' Regulations for Patient Providers further explain how these
controversies shall be decided The regulations state that 'all matters, disputes or
controversies relating to the services performed by Participating Providers... shall
be considered, acted upon, disposed of and determined only by providers in a
manner provided by Article X of the By-Laws of Blue Shield. Regulations for
Participating Providers, General Regulations B(20). The Review Committee
Guidelines go on to say that "matters referred to the Review Committee generally
concern disputes with respect to overutilization and/or misutilization of services,
quality of care, service benefits and usual charge problems." PBS Review
Committee Guidelines, Appendix B.
In an opinion somewhat similar to the one at bar, this Court was asked to
determine whether a claim brought against PBS for interpretation of a providing
participant agreement between a health services provider and PBS was required
to initially go through an alternative dispute resolution process. The Court held that
40 Pa. C.S.A. Section 6324 of the Professional Health Services Plan Corporation
Act 'gives PBS power to elect an administrative panel to hear and resolve disputes
concerning the professional health services rendered by its participating
physicians." RRS Imaging Assoc v. Medical Service Assn. 42 D & C 3d 42, 43
3
D
97-2288 CIVIL TERM
(1985).
Additionally, the Pennsylvania Supreme Court has already recognized that
various statutes now encourage arbitratlon and alternative dispute resolution Is
favored by the courts. Borough of Ambridge Water Authority v Columbia, 458 Pa.
549, 328 A,2d 498, 500 (1974).
-Based upon the above requirements, this Court finds that the Plaintiff Is
required under his agreement with PBS to first submit his complaint to alternative
dispute resolution rather than initially filing it with the court system. The
Pennsylvania Health Services Plan Corporation Act clearly states that PBS has the
right to prescribe the manner used to settle disputes and controversies. PBS, in
its by-laws, has determined that all matters arising out of the relationship between
participating providers and PBS shall be disposed of via one of two Review
Committees. Based upon this reading, any dispute which falls under this
requirement must be determined by the Review Committee before it can be
removed to the court system.
The case at bar meets the requirement of a matter which arises out of the
relationship between a participating provider and PBS. Wenrich is a participating
provider who is required under the PBS agreement to forward certain information
to the Defendant in order for PBS to determine the quality of Wenrich's equipment.
4
97-2288 CIVIL TERM
In turn, Wenrich can submit his bills to PBS which then pays or denies the claim
and sends notices to the participating patients whom Wenrich has treated. Were
Wenrich not a participating provider for PBS, Defendant would not have had any
reason to send the supposedly defamatory letters to any of Wenrich's patients.
Therefore, this case arose from the relationship between Wenrich and PBS.
Furthermore, the PBS guidelines go on to say that the matters referred to
by the Review Committee generally concern disputes with respect to overutilization,
quality of care, seriice benefits and usual charge problems. Plaintiff alleges that
his claim does not fall within the list of disputes. Plaintiff fails to see that this list
is just a generality produced by PBS to show what disputes are commonly dealt
with by the Review Committee. However, there is no limitation placed upon this
list, nor does PBS specifically list any disputes which are not covered under the
Review Committee's jurisdiction.
Plaintiff characterizes his claim as one of defamation in a possible attempt
to avoid alternative dispute resolution. This Court finds that the dispute between
Plaintiff and Defendant is actually one based upon the requirements of Plaintiff as
a PBS provider. Although Plaintiff couches his complaint in terms of defamation,
this Court will not allow mere linguistics to prevent this case from going to
5
97-2286 CIVIL TERM
alternative dispute resolution 2 Additionally, this case could be viewed as dispute
over quality of care. Plaintiff's claim of defamation is based upon the fact that PBS
found Plaintiff's equipment to be substandard. This claim obviously goes to the
quality of care being offered by Plaintiff in his role as a participating provider in the
PBS Program. For these reasons, Plaintiff is required to submit his complaint to
the appropriate PBS Review Committee.
` Even if this Court were to find that Plaintiff's case is based upon
defamation, there is still authority to show that defamation can be arbitrated. The
Pennsylvania Superior Court has said that "although the intentional tort of
defamation is not normally arbitrated,` if the agreement is broad enough to
encompass defamation, such as allowing arbitration for any dispute arising out of
the relationship between the parties, then defamation cases may be arbitrated.
Waddell v. Shriber, 357 A.2d 571 (Pa. Super. 1976).
6
J
KEEFER WOOD ALLEN & RAHAL LLP ESTABLISHED IN 1878
HEATHL ALLEN ,
N DAVID RAHAL 210 WALNUT STREET
CHARLES W RUSENDALL It OF COUNSEL
ROBERT L WELDON P. 0. BOX 11963 WILLIAM H WOOD
EUGENE E PEPINSNY JR HARRISBURG, PA 17108-1963 SAMUEL C HARRY
THOMAS E W0 O _
JOHN H ENOS III PHONE (717) 255.8000 WEST SHORE OFFICE.
GARY E FRENCH
FAX (717) 255.8050
415 FALLOwrIEL0 ROAD
DONNA 5 WELDON
BRADFORD DORRANCE - CAMP HILL. PA 17011
JEFFREY 5 STOKES EIN NO 23 0716135 (7171 812 5800
ROBERT R CHURCH --
STEPHEN L GROSE WRITER'S DIRECT DIAL
R. SCOTT SHEARER March 30
1999
WAYNE M PECHT ,
DONALD M LEWIS III
BRIDGETM WHITLEY (717) 255-8040
BRENDA 5 LYNCH
SHAWN W WEIS
ALLAN J ROSSI
JOHN A FEICHTEL
Spero T. Lappas, Esquire
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
Re: Leslie Wenrich, D.C.
Appearance Before the Medical Review Committee
of Pennsylvania Shield.
Dear Spero:
Z serve as counsel to the Medical Review Committee of
Pennsylvania Blue Shield. Jon Dubs has asked me to respond to
the procedural issues raised in your letter of March 8, 1999.
We have consistently taken the position that the Medical
Review Committee is not a court of law, and that it would destroy
the "peer review" nature of the Committee's work if we were to
attempt to model its proceedings on those of a jury trial as you
suggest. we do not believe that the Committee must provide for
cross examination of witnesses, stenographic recording, or any of
the other procedural features that you request in order to
provide a fair hearing. Pennsylvania case law suggests that due
process requires only "notice and the opportunity to be heard and
to defend in an orderly proceeding adapted to the nature of the
case." Greenstein v, Commonwealth of Pennsylvania, Department of
Health, 98 Pa. Cmwlth. 445, 512 A.2d 739, 743 (1986). More
specifically, the Superior Court, in Rudolph v. Pennsylvania Blue
Shield, 451 Pa. Super. 300, 679 A.2d 805 (1996) specifically
found that the procedures adopted by the Committee were
constitutionally adequate. (The Supreme court's subsequent
reversal of Rudolph, 717 A.2d 508 (1998) was based solely on the
composition of the committee, not on its procedural guidelines.
The objections raised by the Supreme Co have subsequently been
EXHIBIT
Spero T. Lappas, Esquire
March 30, 1999
Page 2
addressed and we believe the composition of the Committee now
meets the standards suggested by the Supreme Court.)
I have advised Mr. Dubs that the Committee should not change
its procedures in an ad hoc fashion to satisfy the requests of
individual providers or their attorneys. Accordingly, the
hearing on May 4, 1999 will be conducted in accordance with the
Committee's standard practices.
You also indicated that you may want to challenge the
participation of certain Committee members. I have advised Mr.
Dubs that he should permit you to place any such challenges on
the record at the beginning of the proceeding and that any member
against whom a credible allegation of bias or conflict of
interest is made should abstain from participation in the
hearing.
If you have any other questions regarding the Committee
hearing, I will be happy to discuss them with you.
Very truly yours,
KEEFER WOOD/ALLEN &
By:
E. Wood
TEW/ ra 1
RAH L, LLP
CC: Jon Dubs, Secretary, Medical Review Committee
06.0199 TFE 14:55 FAX 717 975 7055 BENEFITS llGtrr.
{PEN\SYL.VAN11A 131.UF. SHIELD
Via Facsimile and Certified Mail
Return Receipt Requested
June 1, 1999
The Law Offices of Spero T. Lappas
205 State Street
Post Office Box 808
Harrisburg, PA 17108-808
Dear Attorney Lappas:
®002
Pennsylvania Blue Shield operates under the provisions of the Health Services Plan Corporations
Act, 40 PA C.S.A. Section 6301 et seq. Section 6324 (c) of the Act requires that all matters,
disputes or controversies relating to professional health services rendered by health service
doctors, or any questions involving professional ethics, shall be considered and determined only
by health service doctors selected in a manner prescribed in the By-Laws of the professional
health service corporation involved.
Article X, Section 2, of the Pennsylvania Blue Shield By-Laws and Article IX, Section 9.2 of the
Highmark By-Laws stipulate that a Medical Review Committee be formed to consider, act upon,
dispose of and determine all controversies arising out of the relationship between Blue Shield
and professional providers who render health services to the corporation's subscribers. The
Medical Review Committee currently consists of eight doctors of medicine, one doctor of
osteopathy and one consumer representative.
The members of the Medical Review Committee wish to express their appreciation for the
information that you and your client, Leslie Wenrich, D.C., presented at the meeting held on
May 4. 1999. Subsequent to your presentation, the Chairman of the Medical Review Committee
dismissed all Pennsylvania Blue Shield staff from the meeting room. The Committee then
reviewed all information pertinent to your case, including the handouts which you distributed
during the meeting. After reviewing all of the information and considering the arguments that
both Dr. Wenrich and Pennsylvania Blue Shield presented, the Committee determined that, Dr.
Wenrich had breached his contractual obligations under the Pennsylvania Blue Shield
Participating Provider Regulations and that Blue Shield acted properly and within its rights when
it denied the claims submitted by Dr. Wenrich and when it promptly notified its members of the
reason for the denial.
EXHIBIT
77
06,01 99 WE 14:56 FAX 717 873 7035 BENEFITS MGMT. IZO03
The Law Office of Spero T. Lappas
Page 2
Therefore, the Committee found that Dr. Wench has no claim for damages against Blue Shield.
In support of this decision, the Committee relied upon the Blue Shield Regulations for
Particioatinp Providers cited below.
B-9 The determination as to whether any covered service meets accepted
standards of' practice in the community shall be made by Blue Shield in
consultation with providers engaged in active clinical practice. Fees for covered
services deemed not to meet accepted standards of practice shall not be collected
from the subscriber.
B-15 Each Participating Provider shall permit Blue shield representatives to
make responsible examination of the provider's clinical records, including x-rays,
relating to any covered service performed for Blue Shield subscribers, when such
examination is necessary to resolve any question concerning such services.
If you have any question or wish to discuss any of the information included in this
correspondence, please do not hesitate to contact me. I can be reached at (717) 763-3326.
ly,
on 1. Dubs
Secretary, Medical Review Committee
JID/jlg
cc: Thomas E. Wood, Esquire
Ti,ja Hilton-Phillips, Esquire
Appendix A
BY-LAWS OF PENNSYLVANIA BLUE SHIELD
Excerpt
Revised April 19, 1995
ARTICLE X
Disputes and Controversies Involving Providers
(;a,.hun 1. I he;puto I iosolutu,n. All indoors, disputes or controversies arising out of the relationship between
III: Cuipuntliun and pmdussional health care providers (heroalte( in this Article referred to as "providers") who
render hadlh sorvices to the Corporation's subscribers, including any questions involving professional ethics,
:;lull ho cnmsuden:d and dotenninod by Ihf: appropriate one of the of the two Review Commillees established
unifcr this Arlido.
Suchun ?. Medical Ruviow commdloo. There shall be a Medical Review Committee consisting of at least
uglht (8( ne:ndu:rs, each ul whuin shall be appointed by the Chairman of the Board of Directors of Ilia Corporation
;loll om;h of whom shall save until his or her successor is appointed. A majority of the members of the Medical
Iioviuw Conmiiltue shall be providers who are members of the Corporation, and the balance of the members
shall hu nemhors of ilia Corporation who are subscribers to health care contracts entered into with the
Cur pun,l ion.
Suchon 3. Dental Review Committee. There shall be a Dental Review Committee consisting of at least
uighl (8) n iembers, each of whom shall be appointed by the Chairman of tho Board of Directors of the Corporation
and each Of whom shall serve until his or tier successor is appointed. A majority of the members of the Dental
liuviow Committee shall be dentists who are members of the Corporation, and the balance of the members
shall be members of the Corporation who are subscribers to health care contracts entered into with the
Corporation.
Section 4. Officers of Review Committees. The Chairman of the Board of Directors of the Corporation
shall appoint two officers for each Review Committee: a Chairperson, who shall be one of the members of the
Committee, and a Secretary, who shall riot be a member of the Committee but shall be an employee of the
Corporation. The Chairperson shall preside at all meetings of the Committee, but shall not vote in any matter
baing considered by Ilia Committee except when necessary to break a tie. The Secretary shall perform the
duties enumerated in Sections 7 and 8 of this Article X, and such other duties as the Chairperson of the
Committee shall assign.
Section 5. Review Committee Meetings - Quorum. Each Review Committee shall meet at a call of the
Chairperson of Ilia Committee. Meetings of each Review Committee may also be called for any appropriate
date, time and place by any three (3) members of the Committee involved. The date, time and place of each
meeting of a Review Committee shall be set forth in a written notice which shall be sent to each member of the
Comemillae it reasonable time in advance of the meeting.
A majority of tho members of a Review Committee who are providers shall constitute a quorum for the
hansarlion of business and the acts of a majority of such members present at a meeting at which a quorum is
piesont shall be Ilia acts of Ilia Review Committee. If the members of a Review Committee shall severally or
collectively consent unanimously in writing to any action proposed to be taken by the Committee, such action
,;hall he as valid an action as though fl had been taken by the Committee at a duly convened meeting.
Section (i. Submission of Matters to the Review Committee. Matters may be submitted to a Review
Conmulluu by any ono of the following:
(a) Any member of Iha Cug),mtfon or of the Board of Directors of the Corporation;
(,) Ilia Subscriber Advisory Council of the Corporation or the Professional Advisory Council of the
Corporation;
J EXHIBIT
I 8
I I the Il,I, wi.up it my nmlrr,hnr, 1A I Itnvlew (,onvnll lne.
,II I%I:,, II it Ip gi;if Intl Iif 1)v1, I. :r if iIf ,dnrrnof limwder
,111 !(IIfit, 'I 11,E .u11In1IL.1! 1,1 , {„VInW I,I); nn l fit,!(! ',h, III h'! ..,!I lofit) it 'Nwillg inn delivered to the
I I I h:vl,:n .,I: if nb:v n•;clv(:rl off! b)evmw 1:Ufnm111001, ;halt ,ndIoUlln written pru:edureS 10
r. .nn it I 1III 1 n1„n,h:n, .1 „av,! 'I'll ,11,1 Inn Insi(ler.ation )f :,ny i4!;uHn pu!•;Pnled to the Committees.
., b1or. n f'1v.II lI,,If ,.,-lluvl., Ilfdow , Itr!VV:W ,,,)nlnlllLo! Iln)';IwI0,lry 01 !adl Review Committee
'.11.111 i,n'II,1"' II: J111'I t: 1.1 .1 IIII! f `I It , lit IM 1.1 :Iltilf h!r,!( I it 1laf[) f.i)if imil 1QH Inee110(y FaCh Provider involved
1111 :1 I?dnn• !lu r!It illnlll:n 11,111 hl; poly lfh!11 'Nllh i written ;i llllnlary ?)l Ihdt Illanef a reasonable time in
v if I , of ,1 ,..1..1:111,.1 11„I I, dl 1 , Iv,l 11 rn1h1 In lpo(;ar twfora Iho I:omfill tee at the meeling. Each member
, I Ihn I liii lnll,:u ,11,,11 iif • 1ilnvbto Id Porn IhU ,no?narIW.; lit .dl fnaIlec7 to be (:nnsidered of the meeting. No
Ilow!';l'If r ! I I IG•snl%v If lnnlldho! -.hail o,irlleµ)gin 111 a ReVU'„ i;l Stg"1!IIPC?; (IPliherat toil-, or vntP, where that
'1111111 1 111(!I1 Ihu1 .11,If I 'If;IVI"I d ,ill all,/I!', it to Ihn Corporation rHgArd,n,j 1`'I; nb)1tCI ;inner review, unless expressly
n:Illll^11141 to if, f, IPA Ill! ttlllvl(lcl' 11110!!( (evinw
In run:;olroinf) Iny nra0lc1 lunugllt below it, I Review Committee shall have authority to take any one or
nlnrr. of Ihf! Inllo,willo If orl°.
p Io!fcr Iho 1naL'or In Ihr; alhor ftevir:w Comnnltee for appropriate action;
(h) Hofnr Intl cep! Inr ro(:ummond;dion nr action by any appropnate commtltee, board or division of the
';t.d(! 1'r)Ins!;lonal `.lro;iety or II Professional Society of the provider involved;
IfHofer the Ioahor to an ;if,propriate law enforcemenl officer or agency of the Federal, State or any
I oral (;nvernnlrnl if III(: Committee has probable cause to believe that the provider involved secured
p; 1,p n0nl from Ihn Corportlion for servi(,Ps performed by the provider for a subscriber on the basis of
(latnno l false infonnahon ,ubnutled to the Corporation with the intention of defrauding it;
(fl) Hofor Iho niatter to Iho Stale Professional Licensure Board of the provider involved;
(e) fhoolor a h od1w) tlril Iho Corporation is entitled to a refund of fees paid to the provider;
(t) Hander if hn(loul vial euthi the Corporation to c:olle;ct any refund by withholding future payments
flue Iron Ihn Corporation to the provider Involved;
(11) If n llarlo.olor rioller uwolvns Toni which would lustify denying a provider registration as a
flooripahng Provider, or lonninatuol of a provider as a Participating Provider of the Corporation, the
(;omilineu mm y f irf that a hearing be held in accordance with Section 8 of this Article X to consider
too provider?; pmticgiating slates. Such conduct may include:
fit Viulrlhun of the Ilialuili trio lirevidor's Agmmnlont;
(n) Violation 1.1 Ihn mgulalory IogislrGon applicable to tho Corporation;
(Iii) Viulntinn of tlir HeguLlt)ons lot Ilarliuipaling Providun; of the Corporation;
(iv) I lulir;,ll lu of lhom lu the Ililhng, poyno ni, or service beneGl provisions of any health plan in
who 11 Ihr pinviilef pill hcipalPS, (1I
(e) VIIIIllholl 01 I odd-lol of N.Ilo I luiunal statulos
ill) Ifrniloi ,if, If ,lli, 1,;1011 of Inlw any olher !;if, 11 a,aool as may be necessary or appropriate to fully
ni?;oh,l Pny (Irgndo Ine.:r,tlell to Iho lCononilloo.
tu, hue tt. I'nu:uurluu;s InvolvBu; Slalus of a Pwvidor as it Participating Provider. The procedures set
loins ni Ihc, wt roll opply al ell n:Lthng to Ihu slates of a provider as it Participating Pruvider of the
t :u?pi n.(tam In ill :auaI cnsas, Ihu Sucrutaly of the Committee shall request legal counsel to the Corporation
,ai •119pnil'mdu ColuliLunt setting lurlh the allegations against the provider. Thu Chairpurson shall
pn till Illy h, I Inm:, 11,110 0111 p1a(u for a huanng. lho provid(:r involved shall bo given at luasl flffeen (15) days
wimi:u r u,lu:e by lhu ;;ucrul+ay u1 IN! Committee of the date, lime and place of such hearing, and shall be
lunu:.h,:r 1 will] a copy of Ihu Complaint. I Ile provide) shall be allowed to file a written Answer to the Complaint,
I nova lur 1 :;uch Ausww r.: Idurl with II ie Socrotary of Il,e Conunihee al least five (5) days prior to the hearing. At
Ihu h,:;u a rr;, :;ur.h will nary be hwill d and such evidence may be received as is deemed to be relevant and
ul nr,c.ur rulrlu pmbolivu value; prowdud, however, that lonnal rules of evidence neod not be followed. The
piuvidr:r afluctud by the Complaint shall b(: afforded a reasonable opportunity lobe heard before the Comntiltoe,
utlhur a, I,ur.;un of by cuunsol, and lu Produce evidence and witnesses of such hearing. All testimony shall be
:dunuy;r: q,hu:ally mcorded and a cumpleto record shall be kept of the hearing.
Allot lhrr huaung, ?,o Review Committee, by majority vote of those members who are providers, shall
Lliu w14 duvm acton it dooms apprupliate, based on the evidence and testimony produced at the hearing and,
if ::1,:11 ;u ,bun urvolm!; udhor Ihu duu:rl of I egist ration as a Participating Provider, or suspension or terrnination
of a provnfur's p;uhr.ipading st lus, the matter shall be promptly referred to the Secretary of Health of the
Collin lot of I'uunsylvania lot approval or for such other action as the Secretary may deem appropriate.
So(:hon g. Repuits by the Review Committee. Each Review Committee shall report at least once every
six (ft) n,unlhs to the Roard of Ditecturs of the Corporation respecting its activities under this Article X.
Appendix B
PENNSYLVANIA BLUE SHIELD
Review Committee Guidelines
I h:nic,ylv;it i,, 1iluu :;lucbl upeop;:; undo Iho plovisiuns of Act 271 of 1972 (40 PA. C.S. SUdIOII t;3()l Of
e.,(e(I. ). L;,;(,l,nn (011.1 (r.) or the Act eejfifes that Lill matters, disputes or controversies relating to professional
huulllu sefvu:e duel„ fs of ;ay que:Aions involving professional ethics shall be considered and determined only
by huullh survwu ducluc; suleeted in a manner prescribe(] in the By-laws of tile, professional health service
cufpofehon invohvod.
I ht) I iluu Slueld I iy Inw:; (Ai Bete X) stipulate that Review Conlnlillees be formed to consider end determine,
iii, lha:;, dc;pulu ; of cnnhover.;Ies;enag not of the rolationship between Blue Shield and professional providers
who fundul health s(:rvu:os.
Ihu Modwill Review Coneudteu considers all matters, disputes or controversies involving all professional
1 nova I(s s wilt) f undo( huullh suf vier.;. the Dental Review Connunittae considers matters, disputes or controversies
invulvagl drnlc;i:;.
t?rrolefdsoan ncer d usual Changes problem respect to overutilization
,uel/(nlu1u+a fi liiulun(I(,ctr`;(I,wc(1rr, (jwhty of care, Committees
i
Ihu lulluwin(l I)iocedurus are applicable to Review Committees:
I . I of nwjl(!I ; invulwntl potentidl overutili[ation and/or misutilization of services or inappropriate quality of
e;(n:, a (:ung)ielu fuviow Is conducted of the provider's practice pattern prior to referral to a Review
Cunnuitloo. ]luting this fevnew, a sample of patient records, statistics, diagnostic aids, and/or other
udonnuhouul suufces i:; n:viewed. 1110 results of such review, as well as the complete methodology
sizes Ilia provideremay requestlan expanded
di says ollwIli! ith lilt! Irus(Ns l, ul lilu. review due to 11 hen any advese
f uvuuw.
II it is delennined that an ovepaymenl has been made, the amount of the overpayment will be
c lculitiod for it puuiod of time not to exceed that permitted by the Statute of Limitations. The
ret;ull, of nucl, ovorpayinunt calculations will be made available to the provider. file provider will be
lunushed Willi ho methodology used to calculate the overpayment, including any variables used to
adjust neiliyeaf uvorpayment determinations. seek
same
tunit it; fdnut;wnunl, thnwgh tl ecohp(opeatulappeal meclensn s, for all claims involved during he may
hmu pnnof I d:; the n:view by Blue Shield. Such claims most be supported by clinical records. hearing
, a Blue Shield prep esentalve ewa
nsider 1 11 lillo i11h(nWI I hriot be telefled t) slifspef Ided ornlern i ated as anPa pProvidertain to
lnuv,d(
cuntncl pt): pwv,d(n to discuss all findings. 11 the provider elects not to meet with a representative or if a
adverse ore mCotillot probleaticnatuf
fulur by evil ` ( Al affallgod that little, the provider is reasonable advised of all f ndings information
is prov
Ifruv re l(! jili
lable
with a el;pune'nl oupnong he,,bnsus,ufvanny refuonldereluest. Tleoproviderris alsoladvised written
optloot; 111111 of
submit t ny d addWiolnal i fometion which could s
pnwitl(f will bo eouratied have a beaming on the
in,fbou ,uul/uf made Iho basis lot a settlement or adjustment to the refund amount requested, if any.
it anyCommunications or Owl matters pcv tainag to Ilia review, the provdevw'illlreceve refunding vuf written
!;llollld
nutduc;dwn .d lud:;l Ilnrly (;to) calendar days in advance 01 the (late of the Review Committee meeting s
nl wlech tle pnviLler';; case will be considered, of his or her right to appear before the Committee
Iwl of Ilv, of 1101 tight lu bu lepmsenled by legal cuunsul. The provider is again encouraged to
Inowdu ;Illy udonn.dunl which play be pertinent to the resolution of the matlor. Accompanying file
oilri 6 ,Illullmf ( opy of file basis of any roluld request, IIIL' applicablo suction(s) of the Blue Shield
try low:. prd:anuul to Hewew Corlmlitlees, the Review Committee Guidelines and, it applicable, life
Ituhrgl.dlnll I'mvidta':; Apuunient and the Regulations for Participating I'roviduls.
o At lu;e.t nlh:un (1!,) I.;duetloi tLly5 prof to the data of Illu I'{evrow Collllnluee Illou'llnu at Which the
pn,vulul':'. t:a:.(: will be considered, the provider will be given if copy of the ducunfentalion to be
plusuillud to 111u Huvluw Connnillue.
A pnlvulul nary fulwanl infornwliun to the Review Conunitlee or, upon written mquesl to tho Secretary
of Ihu Cununllleu, nr,ry appear before the Conuuitlee. A provider who requests to appear before
Ihu Conlnunuu will bu notified of the date and time of his or her appearance at least fifteen (15)
I:;dund.u day:; pour to lilt! nluelllig. Such notification will Inforl ll lilt, provider of file exact nature of
Ihu plucuuding, of Ihu provider's right to reprosenl his or her disagreement and to provide any other
inlorllulroll Which WIII and IIIL' Committee in its deliberation of the maller.
tt. lvlatluf,; scheduled lu be brought before the Review Committee will riot be, deliberated on a formal
of ;ill informal basis between Blue Shield Staff and Committee members prior to the scheduled date
of the Cunlinfluu nleeling excupt al the request of the provider. Should the provider make such a
luquesl, the Instills Will [III fully disclosed to the provider in writing.
o. A Ituview Cortillif e's consideration of any matter, dispute or controversy concerning a provider
who has requested to appear will be continued until after the scheduled appearance of the provider
except as follows:
II lie provider is notified of the Committee meeting 45 or more calendar days in advance of
such nuwling and advises life Secretary of the Committee that he or she wishes to ttend but is
unable to be plusent on file specific date scheduled, the Committee will proceed with its
cunslderalion of the matter. However, the provider will be given the opportunity to appear before
the Committee at its next scheduled meeting.
b. II notification is sell less than 45 calendar days prior to the Committee meeting and the provider
advises the Secretary of file Committee that he or she wishes to attend the meeting, but is
unable to (to so on the specific date scheduled, the provider will be granted one continuance.
I ho Commit ee will proceed with its consideration of the matter at file next scheduled meeting
it the provider, following notification as provided for in Item 5 above, fails to appear.
Ill. Following the Review Conmlittee meeting, the provider will be advised in writing within thirty (30)
calendar days of all determinations made by the Committee. Such notification will include, but not
tie limited to, the amount of any refund at issue, the facts and reasoning supporting Blue Shield's
culchlsiol Is, and, for Participating Providers, the specific basis in Regulation of Blue Shield's claim.
I of those lnalluls Involving the participating status of a provider, the provider will be notified within
(hilly (30) calendar days following a determination by the Secretary of Health.
I I. Any uvuglaynlunl amounts which have not been returned to Blue Shield within thirty (30) calendar
drys of notdicahon of Iht, Review Committee's determination will be subject to withholding of
peynwnls due the Participating Provider and the assessment of interest. Interest will also be assessed
tin mstalhnul it payment arrangements which exceed 00 days. The rate of interest is based upon the
gd flay Ileasury Bill rate In elfuct at the beginning of the calendar quarter during which a Review
Cununitluu decision of an installment repayment agreement is reached.
1:1 . It lilt! lievrow Collllllnleu deternines that a hearing should be held to consider whether a provider
:should bu suspended or tern inaled as a Participating Provider, the proceedings will be conducted
;ls sul tenth el Alhclu X. Section 8, of the Blue Shield Bylaws, and in the planner described in these
guidelines.
-2-
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I verify that I am the PLAINTIFF in the foregoing action, and
that the foregoing document is based upon the information which has
been gathered by my counsel in preparation of this lawsuit. The
language of the COMPLAINT is that of counsel and is not mine. I
have read the COMPLAINT and, to the extent that it is based upon
information which I have given to my counsel, it is true and
correct to the best of my knowledge, information, and belief. To
the extent that the contents of the COMPLAINT are that of counsel,
I have relied upon counsel in making this verification.
I understand that intentional false statements herein are made
subject to the penalties of 18 Pa.C.S.A. 54904 relating to unsworn
falsifications made to authorities.
l ?,.??Co ??2GG-Cf JrL
LESLIE WENRICH, D.C.
`?-
?- ?.? ?_
,,
O? ?
???? ? ?
?,
?- ? ?
?,
.. ,
APR - 4 20001
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 1001 Floor
Philadelphia, PA 19103
215-587-1600
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue Shield
LESLIE WENRICH, D.C. COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
VS.
HIGHMARK
INC.
d/b/a CIVIL ACTION - LAW
,
,
PENNSYLVANIA BLUE SHIELD NO. 97-2288 and 99-4000
ORDER FOR HEARING
AND NOW, this ?+? day of April, 2000, it is hereby ORDERED that a hearing is
to be held on defendant Highmark, Inc., d/b/a Pennsylvania Blue Shield's Petition for
Confidentiality Order on the following date and at the following time:
2000, at r 36 o'clock. v
Oy $
R J.
303405-1
e
i6 r
}? 4 0
cj?
? D
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 10' Floor
Philadelphia, PA 19103
215-587-1600
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue Shield
LESLIE WENRICH, D.C. COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
VS.
CIVIL ACTION - LAW
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD NO. 97-2288 and 99-4000
ORDER
AND NOW, this day April, 2000, upon consideration of defendant, Highmark,
Inc., d/b/a Pennsylvania Blue Shield's Petition for Confidentiality Order, it is hereby ORDERED
and DECREED defendant's request is granted and all information regarding remuneration and
compensation received by the members of the Medical Review Committee for services
rendered to Pennsylvania Blue Shield subscribers shall be placed under seal, kept confidential
and shall be used for no other purpose than the litigation of this matter, and shall be released
to no other persons.
BY THE COURT:
J.
304715.1
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 10' Floor
Philadelphia, PA 19103
215-587-1600
LESLIE WENRICH, D.C.
VS.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue Shield
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
NO. 97-2288 and 99-4000
DEFENDANT HIGHMARK, INC. D/B/A PENNSYLVANIA BLUE SHIELD'S
PETITION FOR CONFIDENTIALITY ORDER
Defendant, Highmark Inc., d/b/a Pennsylvania Blue Shield, by and through its
attorneys, Christie, Pabarue, Mortensen and Young, A Professional Corporation, hereby
requests this Court to enter a Confidentiality Order with respect to certain information to
be produced by Highmark, and in support states as follows:
1. This action was commenced by the filing of a Complaint in Civil Action at
No. 97-2288 Civil in 1997.
2. The Complaint plead causes of action in fraud and defamation against
Pennsylvania Blue Shield ("PBS").
3. Defendant filed Preliminary Objections to plaintiff's Complaint, and by Order
and Opinion dated June 30, 1998, the Court dismissed plaintiff's for failure to submit the
dispute to the required alternative dispute resolution process as required by the
participating provider agreement executed by plaintiff.
4. Thereafter, plaintiff's counsel complained to defendant regarding the
unfairness of the procedures established for plaintiff's hearing.
304716.1
5. On May 4, 1999 plaintiff and his attorney appeared for a hearing before the
defendant's Medical Review Committee to contest the decision of PBS to deny payment for
x-rays examinations performed.
6. On or about June 1, 1999 the Medical Review Committee issued its decision
dismissing plaintiff's claims and affirming its prior determination.
7. Thereafter on June 29, 1999 plaintiff filed a Petition to Vacate, Set Aside,
Modify and Reverse the decision by the Medical Review Committee in the Court of Common
Pleas of Cumberland County; simultaneously with the Petition, plaintiff initiated the instant
action at No. 99-4000 Civil with the filing of a Complaint.
8. The parties engaged in discovery, and due to a discovery dispute a hearing was
scheduled before the Honorable J. Wesley Oler, Jr., for February 17, 2000.
9. At the conclusion of that hearing, an Order was entered by the Court requiring
the defendants to respond to the following Interrogatory:
With respect to each member of the Medical Review Committee
as of May 4, 1999, [provide] an accounting of any remuneration,
costs, payments, money or other things of value which each
such member received directly or indirectly from or on account
of Highmark or any of its members, officers, directors, agents,
subsidiaries or parts, or predecessors; provided, that the
accounting need not date back more than five years from May 4,
1999.
10. In order to fully comply with the Court's Order, defendant PBS requested an
extension of time from plaintiff's counsel in order to draft appropriate responses. PBS had
already supplied information in chart form as to the remuneration received based upon
Medical Review Committee membership.
11. Plaintiff's counsel agreed to a reasonable extension of time.
12. Counsel for PBS obtained the required financial information from PBS, and
drafted a response to the aforementioned Interrogatory which listed the amount of
3047161 2
remuneration each Medical Review Committee member received for providing medical care
and services to PBS subscribers.
13. Due to the sensitive nature of this personal income information, counsel for
PBS requested an agreement from plaintiff's counsel that the information regarding this
remuneration be kept confidential and would be released to no other person or used for any
purpose other than the instant litigation. Counsel for PBS does not object to its production
and stands ready, willing and able to produce this information if a confidentiality agreement is
entered into by plaintiff and his counsel.
14. By letter dated March 28, 2000, counsel for plaintiff advised PBS that he
would not agree to a confidentiality agreement with respect to the information regarding this
remuneration.
15. Plaintiff's counsel further restated his position during a telephone conversation
with counsel for PBS on March 29, 2000.
16. Given the highly sensitive and confidential nature of the personal income
information requested, defendant PBS is seeking the intervention of this Court to designate
this information as confidential and place it under seal in this litigation and that it not be
disclosed or used for any other purpose.
17. The position that plaintiff's counsel has adopted with respect to this
information is unreasonable, is completely lacking in legal support, and leads to the conclusion
that plaintiff's counsel is seeking this information for an inappropriate purpose.
WHEREFORE, defendant PBS respectfully requests this Honorable Court to enter an
appropriate Order keeping the requested information under seal, and further ordering that
all information regarding remuneration received by members of the Medical Review
304715.1
3
Committee be kept confidential and be used for no purpose other than the litigation of this
matter.
CHRISTIE, PABARUE, MORTENSEN and YOUNG
A Professional Corporation
BY: Z'r? i? /
ames A. Young, Es VIM
Michael J. Burns, Es ire
Barbara L. Schmuck, Esquire
Dated: 3,31 L-Z) Attorneys for Defendants
304715.1 4
MICHAEL J. BURNS, ESQUIRE, attorney for defendant Highmark, Inc. d/b/a
Pennsylvania Blue Shield in the within action, hereby certifies that he caused to be served a
true and correct copy of the Defendant Highmark, Inc., d/b/a Pennsylvania Blue Shield's
Petition for Confidentiality Order Judgment via first-class United States mail, postage prepaid
on P611(4`1 3( , 2000, upon the following:
Spero T. Lappas, Esquire
205 State Street
P.O. Box 808
Harrisburg, PA 1 7 1 08-0808
L 4iL l
I HAEL J. BUR11191
303406.1
7- ?
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F
? ?
?_-? ??-?..
11l
4 .
-. l' J
1, ):
^l '
U 1
l -'J
1. '
(-'. I?IJ
... ?
ai
? O :.?
U
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos, 00213/62088
1880 JFK Boulevard, 10" Floor
Philadelphia, PA 19103
215.587-1600
LESLIE WENRICH, D.C.
va.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue Shield
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
NO. 97-2288 and 99-4000
ORDER FOR HEARING
AND NOW, this day of April, 2000, it is hereby ORDERED that a hearing is
to be held on defendant Highmark, Inc., d/b/a Pennsylvania Blue Shield's Petition for
Confidentiality Order on the following date and at the following time:
2000, at
o'clock.
J.
303405.1
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 10' Floor
Philadelphia, PA 19103
215-587-1600
LESLIE WENRICH, D.C. COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
VS.
CIVIL ACTION - LAW
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD NO. 97-2288 and 99-4000
ORDER
AND NOW, this day April, 2000, upon consideration of defendant, Highmark,
Inc., d/b/a Pennsylvania Blue Shield's Petition for Confidentiality Order, it is hereby ORDERED
and DECREED defendant's request is granted and all information regarding remuneration and
compensation received by the members of the Medical Review Committee for services
rendered to Pennsylvania Blue Shield subscribers shall be placed under seal, kept confidential
and shall be used for no other purpose than the litigation of this matter, and shall be released
to no other persons.
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue Shield
BY THE COURT:
J.
304715.1
CHRISTIE, PABARUE, MORTENSEN AND YOUNG Attorneys For:
A Professional Corporation Defendant Highmark, Inc.
By: James A. Young, Esq./Michael J. Burns, Esq. d/b/a Pennsylvania Blue Shield
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 101h Floor
Philadelphia, PA 19103
215.587-1600
LESLIE WENRICH, D.C. COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
VS.
CIVIL ACTION - LAW
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD NO. 97-2288 and 99-4000
DEFENDANT HIGHMARK, INC. D/B/A PENNSYLVANIA BLUE SHIELD'S
PETITION FOR CONFIDENTIALITY ORDER
Defendant, Highmark Inc., d/b/a Pennsylvania Blue Shield, by and through its
attorneys, Christie, Pabarue, Mortensen and Young, A Professional Corporation, hereby
requests this Court to enter a Confidentiality Order with respect to certain information to
be produced by Highmark, and in support states as follows:
1. This action was commenced by the filing of a Complaint in Civil Action at
No. 97-2288 Civil in 1997.
2. The Complaint plead causes of action in fraud and defamation against
Pennsylvania Blue Shield ("PBS").
3. Defendant filed Preliminary Objections to plaintiff's Complaint, and by Order
and Opinion dated June 30, 1998, the Court dismissed plaintiff's for failure to submit the
dispute to the required alternative dispute resolution process as required by the
participating provider agreement executed by plaintiff.
4. Thereafter, plaintiff's counsel complained to defendant regarding the
unfairness of the procedures established for plaintiff's hearing.
304716.1
5. On May 4, 1999 plaintiff and his attorney appeared for a hearing before the
defendant's Medical Review Committee to contest the decision of PBS to deny payment for
x-rays examinations performed.
6. On or about June 1, 1999 the Medical Review Committee issued its decision
dismissing plaintiff's claims and affirming its prior determination.
7. Thereafter on June 29, 1999 plaintiff filed a Petition to Vacate, Set Aside,
Modify and Reverse the decision by the Medical Review Committee in the Court of Common
Pleas of Cumberland County; simultaneously with the Petition, plaintiff initiated the instant
action at No. 99-4000 Civil with the filing of a Complaint.
8. The parties engaged in discovery, and due to a discovery dispute a hearing was
scheduled before the Honorable J. Wesley Oler, Jr., for February 17, 2000.
9. At the conclusion of that hearing, an Order was entered by the Court requiring
the defendants to respond to the following Interrogatory:
With respect to each member of the Medical Review Committee
as of May 4, 1999, lprovidel an accounting of any remuneration,
costs, payments, money or other things of value which each
such member received directly or indirectly from or on account
of Highmark or any of its members, officers, directors, agents,
subsidiaries or parts, or predecessors; provided, that the
accounting need not date back more than five years from May 4,
1999.
10. In order to fully comply with the Court's Order, defendant PBS requested an
extension of time from plaintiff's counsel in order to draft appropriate responses. PBS had
already supplied information in chart form as to the remuneration received based upon
Medical Review Committee membership.
11. Plaintiff's counsel agreed to a reasonable extension of time.
12. Counsel for PBS obtained the required financial information from PBS, and
drafted a response to the aforementioned Interrogatory which listed the amount of
304715.1 2
remuneration each Medical Review Committee member received for providing medical care
and services to PBS subscribers.
13. Due to the sensitive nature of this personal income information, counsel for
PBS requested an agreement from plaintiff's counsel that the information regarding this
remuneration be kept confidential and would be released to no other person or used for any
purpose other than the instant litigation. Counsel for PBS does not object to its production
and stands ready, willing and able to produce this information if a confidentiality agreement is
entered into by plaintiff and his counsel.
14. By letter dated March 28, 2000, counsel for plaintiff advised PBS that he
would not agree to a confidentiality agreement with respect to the information regarding this
remuneration.
15. Plaintiff's counsel further restated his position during a telephone conversation
with counsel for PBS on March 29, 2000.
16. Given the highly sensitive and confidential nature of the personal income
information requested, defendant PBS is seeking the intervention of this Court to designate
this information as confidential and place it under seal in this litigation and that it not be
disclosed or used for any other purpose.
17. The position that plaintiff's counsel has adopted with respect to this
information is unreasonable, is completely lacking in legal support, and leads to the conclusion
that plaintiff's counsel is seeking this information for an inappropriate purpose.
WHEREFORE, defendant PBS respectfully requests this Honorable Court to enter an
appropriate Order keeping the requested information under seal, and further ordering that
all information regarding remuneration received by members of the Medical Review
304715-1 3
Committee be kept confidential and be used for no purpose other than the litigation of this
matter.
CHRISTIE, PABARUE, MORTENSEN and YOUNG
A Professional Corporation
BY:' L
Jai a A. ung, Esquire
?-Michael J.' urns, Esquire
Barbara L. Schmuck, Esquire
Dated: Li Attorneys for Defendants
304716-1 4
MICHAEL J. BURNS, ESQUIRE, attorney for defendant Highmark, Inc, d/b/a
Pennsylvania Blue Shield in the within action, hereby certifies that he caused to be served a
true and correct copy of the Defendant Highmark, Inc., d/b/a Pennsylvania Blue Shield's
Petition for Confidentiality Order Judgment via first-class United States mail, postage prepaid
on cterli 5? , 2000, upon the following:
Spero T. Lappas, Esquire
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
1
AM3
MICR!- 'L J. U NS
303405-1
i
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
JUL - g
LESLIE WENRICH, D.C. CIVIL ACTION - IN EQUITY AND LAW
Plaintiff
No. W_ 11 ? 10 Cu'-( 'Tc"
V.
JURY TRIAL DEMANDED
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD,
Defendant
I E TO SHOW CAUS
AND NOW, THIS DAY OF 1999, it
is hereby ordered that a RULE is entered upo th defendant to show
cause, if any it has, why the relief requested in the Plaintiff fIs
PETITION TO VACATE, SET ASIDE, MODIFY AND REVERSE THE DECISION BY
THE HIGHMARK MEDICAL REVIEW COMMITTEE should not be granted.
Rule returnable days after service.
By the Court:
1
'A I
5
e
cc ko
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cr)
V U c
U
-o
n
The Law Offices of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
By: SPERO T. LAPPAS, Esquire
Pa. Supreme court identification no. 25745
ATTORNEY FOR THE PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C.
Plaintiff
V.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD,
Defendant
CIVIL ACTION - IN EQUITY AND LAW
No.
JURY TRIAL DEMANDED
PETITION TO VACATE, SET ASIDE, MODIFY AND REVERSE
DECISION BY THE
HIGHMARK MEDICAL REVIEW COMMITTEE
RESPECTFULLY SUBMITTED,
The es of SPERO T. LAPPAS
By: A _
SPERO T. LAPPAS, Esquire
Pa. Supreme Ct. ID no. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFF
The Law Offices of SPERO T. LAPPAS
Page 1
1l I
PETITION TO VACATE, SET ASIDE, MODIFY AND REVERSE
DECISION BY THE
HIGHMARK MEDICAL REVIEW COMMITTEE
AND NOW, comes the Plaintiff, by and through his attorneys,
The Law Offices of SPERO T. LAPPAS, and makes this PETITION TO
VACATE, SET ASIDE, MODIFY AND REVERSE THE DECISION BY THE HIGHMARK
MEDICAL REVIEW COMMITTEE respectfully representing as follows:
1. Plaintiff LESLIE WENRICH, D.C., is an adult individual who
has been at all times relevant to this cause of action a Doctor of
Chiropractic, duly authorized to practice that profession and
licensed by the commonwealth of Pennsylvania.
2. Defendant HIGHMARK CORPORATION (hereinafter °Highmark") is
a corporation doing business and operating in and under the laws of
the Commonwealth of Pennsylvania with a place of business at 1800
Center Street, Camp Hill, Pa., Cumberland County, Pennsylvania.
3. Highmark is in the business of providing health and
medical insurance benefits to customer subscribers. Pursuant to
this business, Highmark receives and pays qualifying medical and
doctor bills for its subscribers.
4. At all times material to this cause of action and for all
acts, conduct and omissions described in this Complaint or
otherwise material and relevant to the cause of action stated
herein, the Defendant acted through agents and servants (some of
whom are named in this Complaint and some of which are not named in
this Complaint) for whose acts, conduct and omissions the Defendant
is responsible and liable.
The Law Offices of SPERO T. LAPPAS
Page 2
01 l
5. All such agents and servants of the Defendant acted within
the course and scope of their employment with respect to all acts,
conduct and omissions described or referred to in this Complaint or
otherwise relevant to this cause of action.
6. At various and diverse dates within the statute of
limitations, Dr. Wenrich sent bills to Highmark for payment in
accordance with the Highmark subscriber agreements which covered
certain of Dr. Wenrich's patients.
7. After Dr. Wenrich submitted these bills, Highmark sent
notices by mail to several of the covered patients telling them
that the bills were disapproved for payment.
g. As part of the message by which these patients were
notified that their bills were disapproved for payment, Highmark
told the patients that Pennsylvania Blue Shield had "determined"
that Dr. Wenrich's equipment was substandard. This "determination"
was cited as the reason, or one of the reasons, that the bill was
being disapproved for payment. A specimen notice is attached
hereto as Exhibit 1.
9, in fact, Highmark had made no such determination at all.
in a letter dated May 9, 1996 and signed by Emelie Sconing,
Highmark admits that it was simply assuming that Dr. Wenrich's
equipment did not meet the appropriate standards. A true copy of
this letter is attached hereto as Exhibit 2.
10. There was never any "determination" as Pennsylvania Blue
Shield falsely reported to the Plaintiff's patients.
The Law Offices of SPERO T. LAPPAS page 3
4 I
11. The assumption of Highmark that Dr. Wenrich's equipment
was substandard was based upon Highmark's feeling that Dr. Wenrich
had allegedly failed to reply timely to Highmark's requests for
certain information about Dr. Wenrich's office equipment.
12. In fact, Highmark had never made any determination that
Dr. Wenrich's equipment was substandard.
13. In fact, Dr. Wenrich's equipment was not substandard.
14. To the best of the Plaintiff's information as of the
filing of this complaint at least six patients, and maybe more,
received these false and defamatory communications from the
defendant. The Defendant has supplied a list of patients who
received the offending Notice. This list is attached hereto as
Exhibit 3.
15. All of the defendant's statements of or about the
Plaintiff as described above are and were false and defamatory to
the Plaintiff. They tend to blacken the Plaintiff's reputation or
expose him to public hatred, contempt, or ridicule, or to injure
him in her business or profession.
16. All of these statements and remarks expressed and
communicated their defamatory meaning about the Plaintiff either
directly and overtly or by reasonable implication, insinuation, and
innuendo.
17. Each of the above-described statements and remarks when
heard or read in its totality and context is and was defamatory of
the Plaintiff.
The Law Offices of SPERO T. LAPPAS
Page 4
1 ,
18. Furthermore, each statement and remark is and was
defamatory inter ai;- in that the defendants thereby described the
Plaintiff as doctor who uses or has used substandard equipment to
treat his patients or to make diagnoses.
19. All of these statements and remarks and the defamatory
content thereof applied to the Plaintiff either overtly or by
reasonable implication.
20. All of these statements and remarks were published to
persons who understood them to refer to the Plaintiff, and who
understood them as intended to be applied to the Plaintiff.
12. The defamatory content of these statements is false and
untrue.
21. The Defendant in connection with the making and
publishing of these statements and remarks were reckless, or in the
alternative, they were negligent.
22. None of these publications, statements or remarks was
privileged; in the alternative, any privilege which would have
otherwise attached to the Defendants and their publication of these
statements and remarks did not attach by virtue of actual malice
and/or abuse, recklessness, reckless disregard of the falsity of
the publication, or negligence, or otherwise.
23. As the direct, legal, and proximate result of the
Defendants actions as described in this Complaint, the Plaintiff
has suffered actual harm in that, inter alia,
a. he has suffered the impairment of reputation and
The Law Offices of SPERO T. LAPPAS
Page 5
1 ,
standing in the community;
b. he has been libeled, slandered, and defamed in
connection with his competence to carry on his
business or profession;
C. he has suffered great and extreme personal
humiliation, mortification, embarrassment, mental
anguish and suffering;
d. he has been exposed to public contempt and
ridicule;
e. he has been injured in her business or profession.
24. In 1997, Plaintiff initiated a lawsuit in the Court of
Common Pleas of Cumberland County entitled wenrich v. Pennsylvania
Blue Shield (NO. 97-2288 CIVIL) bringing the same claim as is
described above. That Complaint is attached as Exhibit 4 hereto
and incorporated into this Complaint by reference.
25. Highmark challenged the propriety of that lawsuit by
filing preliminary objections arguing that the Plaintiff was
required to bring his claim before the Highmark medical Review
Committee (hereinafter "HMRC") in the first instance.
26. The Court agreed and dismissed the Plaintiff's Complaint
for failure to submit the case to a mandatory alternative dispute
resolution mechanism, in violation of Pa.R.C.P 1028(6). This order
and opinion are attached hereto and marked collectively as Exhibit
5.
27. The Plaintiff did submit his claim to the HMRC.
The Law Offices of SPERO T. LAPPAS
Page 6
28. Thereafter, the Plaintiff complained to the HMRC and
Highmark about the unfairness of the procedures established for the
Plaintiff's hearing.
29. HMRC's counsel, Attorney Thomas Wood, wrote to
plaintiff's counsel, assuring the Plaintiff (among other things)
that defendant Highmark and the HMRC had cured the defects in the
composition of the medical review committee which had led the
Pennsylvania Supreme Court in RudolHh v Pennsylvania Blue Shield,
--- Pa. ---, 717 A.2d 508 (1998) to hold that the Committee and
its decisions were unconstitutional. (See Exhibit 6.)
30. Specifically, counsel for the committee assured the
Plaintiff that "the objections raised by the Supreme Court have
subsequently been addressed and we believe the composition of the
Committee now meets the standards suggested by the Supreme Court".
31. The "objections" raised by the Supreme Court dealt with
the fact that as long as the HMRC was composed of members of the
Highmark Corporation or members of its board of directors, then the
committee was ipso facto unfair and partial.
32. In fact, the assurances of Attorney Wood's March 30
letter were not accurate and at least three members of the current
HMRC are members of the Highmark Corporation: specifically, W.
Scott Nettrour, Robert Albertini (who was Chairman of the Medical
Review Committee) and William Daiber.
33. The defendant was well aware of this composition. In
fact Highmark has known that members of the HMRC were members of
The Law Offices of SPERO T. LAPPAS
Page 7
the corporation and it was Highmark's intention to allow that
situation to persist in spite of Rudolph. Neither the defendant
nor any members of the HMRC disclosed to Plaintiff before the
hearing that some HMRC members were members of the corporation.
34. The Plaintiff and his counsel appeared for an alleged
hearing before the HMRC on or about May 4, 1999 and thereafter the
HMRC issued its "decision" dated June 1, 1999 dismissing
Plaintiffs claims. (Exhibit 7)
35. The HMRCIs June 1 "decision" did not properly address any
of the issues raised by Plaintiff fIs claim.
36. Furthermore, the proceedings, procedure, decision and
adjudication of the HMRC were defective in inter alia the following
ways, and these defects, individually and in combination with one
another, render the HMRC decision unjust, inequitable and
unconscionable, and require that this court vacate, set aside,
modify, and reverse the decision of the HMRC and allow this case to
proceed to trial by jury in the Court of Common Pleas.
a. The Plaintiff was not allowed to call witnesses and
his request that Highmark employees appear to offer
evidence in his favor was denied.
b. The Plaintiff was afforded no opportunity to
present evidence, other than his own statements and
the presentation of his counsel.
C. The Plaintiff was afforded no opportunity to
challenge through witnesses or cross-examination
The Law Offices of SPERO T. LAPPAS
Page 8
4 .
the evidence presented by the defendant.
d. The HMRC was constituted in such a way as to be
unfair, partial, biased and predisposed in favor of
Highmark and against the Plaintiff in that some of
the members of the HMRC were members of the
Highmark Corporation.
e. in fact Article X, section 2 of the Defendant's
bylaws requires that "a majority of the members of
the medical review committee shall be providers who
are members of the corporation." (The portion of
the defendant's bylaws dealing with the HMRC are
attached hereto as Exhibit 8.)
f. The defendant's bylaws (Article X) do not empower
the HMRC to make an enforceable monetary award to
the Plaintiff, and therefore the HMRC did not have
authority to address Plaintiff's claim.
g. The HMRC which heard the Plaintiff's case was
constituted in such a fashion as to be unfair to
Plaintiff in that it had no Doctors of
Chiropractic.
h. Plaintiff believes and therefore avers that the
members of the HMRC are paid in some fashion by, or
receive some other advantage or emolument from, the
defendant Highmark Corporation. This does or may
prejudice the HMRC members in favor of Highmark.
The Law Offices of SPERO T. LAPPAS
Page 9
i. Plaintiff believes and therefore avers that the
members of the HMRC are health care providers who
rely on Highmark for reimbursement and payment of
the bills which they (the HMRC members) submit to
Highmark. Accordingly, Highmark has the economic
and practical power to cause the HMRC members
considerable inconvenience and loss in the event
that Highmark becomes disenchanted with the HMRC
members. This does or may prejudice the HMRC
members in favor of Highmark.
j. The dispute resolution mechanism imposed upon the
Plaintiff by the Defendant runs afoul of due
process of law, in that inter alia it did not
provide the Plaintiff with the opportunity to be
heard and to present his claim in a meaningfully
orderly proceeding before an impartial tribunal.
k. Plaintiff believes and therefore avers that the
members of the HMRC are selected by the Defendant
with no input or right of selection by the
Plaintiff.
1. The HMRC decision is the result of fraud with
respect to the Defendant's non-compliance with the
Rudloh decision.
M. The HMRC members were incompetent to decide the
issues of defamation raised by the Plaintiff's
The Law Offices of SPERO T. LAPPAS
Page 10
claim. Indeed, the HMRC process is not designed or
intended to decide cases of this sort.
n. The decision of the HMRC is against and contrary to
the evidence.
o. The decision of the HMRC is against and contrary to
the weight of the evidence.
p. The decision of the HMRC is against and contrary to
the applicable law.
q. The HMRC decision mistakenly and unlawfully
considers the Plaintiffs alleged breach of his
contractual obligations to Highmark to be a defense
to the defendant's defamation of the Plaintiff. In
fact, contract breach is not a defense to
defamation.
r. The HMRC decision mistakenly and unlawfully
considers sections B-9 and B-15 of the Blue Shield
ggylat ons for Participating Providers to be
relevant to the Plaintiffs claim. In fact,
neither one of those sections has any relevance to
this case whatsoever.
S. The HMRC decision mistakenly and unlawfully held
that "Blue Shield acted properly and within its
rights when it denied the claims submitted by Dr.
wenrich and when it promptly notified its members
of the reason for the denial." In fact, the
The Law Offices of SPERO T. LAPPAS
Page 11
defendant's complained of actions went far beyond
any lawful notification and constituted defamation
against the Plaintiff.
37. WHEREFORE, the Plaintiff requests that this court enter
judgment in his favor and against this Defendant. Plaintiff also
requests the following relief:
a. That the Court invalidate, reverse, vacate and set
aside the decision of the HMRC ion this case.
b. That the court enter an Order requiring that the
HMRC be disbanded and that the Defendant be
prohibited from requiring submission of any
disputes to a medical review committee until a
committee is constituted with a composition and
procedures which are legally sufficient and
adequate.
C. That the Court order that this case shall proceed
to trial by jury in the Cumberland County Court of
Common Pleas.
The Law Offices of SPERO T. LAPPAS
Page 12
d. That the Court thereafter enter judgment in favor
of the Plaintiff and against the defendant in an
amount in excess of the local limits requiring
reference to compulsory arbitration, including
compensatory and punitive damages, plus costs of
litigation and allowable interest.
RESPECTFULLY SUBMITTED,
of SPERO T. LAPPAS
By:
Pa. Supreme Ct. ID no. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
The Law Offices Of SPERO T. LAPPAS
Page 13
TABLE OF EXHIBITS
1. Specimen of Defendant's Notice to Plaintiff fIs patients.
2. PBS May, 1996 letter to Plaintiff.
3. PBS list of patients who received the offending notice.
4. Complaint
5. Order and Opinion.
6. Attorney Wood's letter to Plaintiff Is counsel.
7. HMRC decision.
8. HMRC bylaws
The Law Offices of SPERO T. LAPPAS
Page 14 2
ii
Pennsylvania 1tFL PLANATION OF BENEFITS PENNSYLVANIA BLUE SHIELD
lSIUeSI1wid KEEP FOR YOUR TAX RECORDS POSBOXE890036ICE
al. ShM1U,M Rlu. r..,. m..•.1 r.n•glr,NU CAMP HILL PA .7089-0036
I h ....1 IM Rlw Cr.m ,M RI .• .
u• SM•16 R.... I .I.,
I•n MMONOMM?
Subscriber; DENNIS L SCHNECK
ID Number: 168323241 Pape: 1 of 1
Patient: CIIARLOTTE B SCHNECK
Provider: LESLIE W WENRICH DC Claim Number: 56255012612 Date: 09/12/96
(000115611)
PROCEWRE DESCRIPTION
PROCEWRE CODE SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID AMOUNT
INUMBER OF SERVICES) DATE IS)
CHARGE NOT PAID REMARKS
SPINAL KRAY (001) 07/Oa/96
72050 45.00 .00 .00 45.00 OS145
SPINAL XRAY (001) 07/00/9e
72100
75.00 .00 .00 75.00 05145
?O 0 00
D5145 Pennsylvania Blue Shield has determined that the equipment used to
diagnostic test does not meet the accepted
provide this
Th e refore, to standard of quality in the Community.
Patient for thisyservicell be made. A participating provider may not bill the
EEXHIBIT
1
1111111(((1111((III(111IIII(II(11111111111.1111111111111111111 DENNIS L SCHNECK
RD 1 BOX 368
PINE GROVE PA 17963-9732 THIS IS NOT A BILL
HAVE A QUESTION? PLEASE CALL (717) 731-8080 OR 1-800-345-3806.
(Service for the Deaf via TOD Equipment is available at 1-800-345-3848.) N0001901
ih?nnsylvunia
IilucShiew
amp Ifill. Penn,rlrm,a I7nN7
en eWIMMe b A,M M H An Gen M b?':ew.,U.-.n..
CERTIFIED MAIL
N'13 RECB__ Ip_ T RED SSTED
May 9, 1996
Leslie W. Wenrich, D.C.
424 W. Grand Ave.
Tower City, PA 17980-1018
Dear Doctor Wenrich:
In 1993, Pennsylvania Blue Shield iders who reported
initiatedsurveysa reviewprov
quality of diagnostic x-rays by sending
to of the technical
x-rays performed in their offices to Blue Shield during 1992. Following
our review of the completed surveys, we determined that we should review
actual x-ray filn.s for all providers who had no quality control program
in place, whose x rays were processed manually, or who failed to respond
to the survey. You fall into one of these three groupings.
We are now bringing this project to a close and you are one of the very
fnw providers who have failed to forward x-rays for review, as requested.
Although we have made repeated attempts to determine whether your x-rays
meet the accepted standard of quality in the community, we have been
unable to do so. Therefore, we must assume that they do not meet that
standard. Effective 30 days from the date of this letter, no further
Payment will be made for x-rays taken in your office. Payment for the
x-rays will be denied with the following message: "Pennsylvania Blue
Shield has determined that the equipment used to provide this x-ray does
not meet the accepted standard of quality in the community. Therefore, no
payment will be made. A participating provider may not bill the patient
for this service."
The subscriber will also receive the same message on his or her
Explanation of Benefits. Please note that, as a participating provide,
with Pennsylvania Blue Shield you may not bill
denied services the subscriber for tllcnr,
.
You have the right to appeal this decision should you so desire. In
order to do no, you will have to provide x-rays for review by a
consultant. If you wish to do this, or if you have any quentiond .
EXHIBIT
1 2
J
`V
Leslie Wenrich, D.C.
11115611
Patient's uamo
Agreement
Date of ervicc
Lawrence Bensinger 180-56-3696
06-08-94
Roxanne Buffington D6276246
01-10-94
Judy Gass 180-38-0693
06-17-94
Barbara A- Klinger 184-34-1214
08-0 l -94
Mary Smeltzer 197-40-8554
10-24-94
Roy E. Williard 192-30-4826
10-OS-94
11 EXHIBIT
3
Leslie W. Wenrich, D.C.
Page Two
concerning this issue, Please do not hesitate to contact me. l
reached at (717) 763.3207.
can be
SincPrely, //
6meli6 A. Sconing
Manager
Benefits Utilization management
6AS/tnn
The Law Offices Of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, Pennsylvania 17108-0808
Telephone (717) 238-4286
BY: SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Court identification no. 25745
ATTORNEYS FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D. C.
Plaintiff
V.
PENNSYLVANIA
BLUE SHIELD,
Defendant
CIVIL ACTION - LAW
NO. S. 1997
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes the Plaintiff, by and through his attorneys,
The Law Offices of SPERO T. LAPPAS, and makes this Complaint
against the above-captioned Defendants, respectfully representing
as follows:
1. Plaintiff LESLIE WENRICH, D.C., is an adult individual who
has been at all times relevant to this cause of action a Doctor of
Chiropractic, duly authorized to practice that profession and
licensed by the commonwealth of Pennsylvania.
2. Defendant PENNSYLVANIA BLUE SHIELD (hereinafter "PBS") is
a corporation doing business and operating in and under the laws of
the Commonwealth of Pennsylvania with a place of business at 1800
Center Street, Camp Hill, Pa., Cumberland County, Pennsylvania.
The Law Office.-SaBRO T. LAPPAS
EXHIs13 Page 3
I . PBS is in the business of providing health and medical
insurance benefits to customer subscribers. Pursuant to this
business, PBS receives and pays qualifying medical and doctor bills
for its subscribers.
4. At all times material to this cause of action and for all
acts, conduct and omissions described in this Complaint or
otherwise material and relevant to the cause of action stated
herein, the Defendant acted through agents and servants (some of
whom are named in this Complaint and some of which are not named in
this Complaint) for whose acts, conduct and omissions the Defendant
is responsible and liable.
5. All such agents and servants of the Defendant acted within
the course and scope of their employment with respect to all acts,
conduct and omissions described or referred to in this Complaint or
otherwise relevant to this cause of action.
6. At various and diverse dates within the statute of
limitations, Dr. Wenrich sent bills to PBS for payment in
accordance with the PBS subscriber agreements which covered certain
of Dr. Wenrich's patients.
7. After Dr. Wenrich submitted these bills, PBS sent notices
by mail to several of the covered patients telling them that the
bills were disapproved for payment.
8. As part of the message by which these patients were
notified that their bills were disapproved for payment, PBS told
the patients that Pennsylvania Blue Shield had "determined" that
The Law Offices Of SPERO T. LAppAS
Page 4
Dr. Wenrich's equipment was substandard. This "determination" was
cited as the reason, or one of the reasons, that the bill was being
disapproved for payment. A specimen notice is attached hereto as
Exhibit 1.
9. In fact, PBS had made no such determination at all. In a
letter dated May 9, 1996 and signed by Emelie Sconing, PBS admits
that it was simply assuming that Dr. Wenrich's equipment did not
meet the appropriate standards. A true copy of this letter is
attached hereto as Exhibit 2.
10. There was never any "determination" as Pennsylvania Blue
Shield falsely reported to the Plaintiffs patients.
11. The assumption of PBS that Dr. Wenrich's equipment was
substandard was based upon PBS1s feeling that Dr. Wenrich had
allegedly failed to reply timely to PBS's requests for certain
information about Dr. Wenrich's office equipment.
12. In fact, PBS had never made any determination that Dr.
Wenrich's equipment was substandard.
13. In fact, Dr. Wenrich's equipment was not substandard.
19• To the best of the Plaintiffs information as of the
filing of this complaint at least six patients, and maybe more,
received these false and defamatory communications from the
defendant. The Defendant has supplied a list of patients who
received the offending Notice. This list is attached hereto as
Exhibit 3.
15. All of the defendant's statements of or about the
The Law Offices of SPERO T. LAPpAS
Page 5
Plaintiff as described above are and were false and defamatory to
the Plaintiff. They tend to blacken the Plaintiffs reputation or
expose him to public hatred, contempt, or ridicule, or to injure
him in her business or profession.
16. All of these statements and remarks expressed and
communicated their defamatory meaning about the Plaintiff either
directly and overtly or by reasonable implication, insinuation, and
innuendo.
17. Each of the above-described statements and remarks when
heard or read in its totality and context is and was defamatory of
the Plaintiff.
18. Furthermore, each statement and remark is and was
defamatory 'nte
r al'a in that the defendants thereby described the
Plaintiff as doctor who uses or has used substandard equipment to
treat his patients or to make diagnoses.
19. All of these statements and remarks and the defamatory
content thereof applied to the Plaintiff either overtly or by
reasonable implication.
20. All of these statements and remarks were published to
persons who understood them to refer to the Plaintiff, and who
understood them as intended to be applied to the Plaintiff.
12. The defamatory content of these statements is false and
untrue.
21. The Defendant in connection with
the making and
publishing of these statements and remarks were reckless, or in the
The Law Offices of SPERO T.
LAPPAS
Page 6
alternative, they were negligent.
22. None of these publications, statements or remarks was
privileged; in the alternative, any privilege which would have
otherwise attached to the Defendants and their publication of these
statements and remarks did not attach by virtue of actual malice
and/or abuse, recklessness, reckless disregard of the falsity of
the publication, or negligence, or otherwise.
23• As the direct, legal, and proximate result of the
Defendant's actions as described in this Complaint, the Plaintiff
has suffered actual harm in that, inter al;-,
a. he has suffered the impairment of reputation and
standing in the community;
b. he has been libeled, slandered, and defamed in
connection with his competence to carry on his
business or profession;
C. he has suffered great and extreme personal
humiliation, mortification, embarrassment, mental
anguish and suffering;
d. he has been exposed to public contempt and
ridicule;
e. he has been injured in her business or profession.
The Law Offices Of SPERO T. LAPPAS
Page 7
24. WHEREFORE, the Plaintiff requests that this court enter
judgment in his favor and against this Defendant in an amount in
excess of the local limits requiring reference to compulsory
arbitration, Plus costs of litigation and allowable interest.
i
RESPECTFULLY SUBMITTED,
The Law Offices of S E T. LAPPAS
By:
SPERO T. LAPPAS, Esquire
Pa. Supreme Ct. ID no. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
The Law Offices of SPERO T. LAPPAS
Page 8
TABLE OF EXHIBITS
1• Specimen of Defendant 1S Notice to Plaintiff is patients.
2. PBS May, 1996 letter to Plaintiff.
3. PBS list of patients who received the offending notice.
The Law Offices of SPERO T. LAppAS
Page 9
LESLIE WENRICH, D.C.,
Plaintiff
V.
HIGHMARK, INC. d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2288 CIVIL TERM
: CIVIL ACTION -LAW
AN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER P.J. AND HESS J.
4
QRQER OF COURT
AND NOW,
, 1998, Plaintiff's Complaint is
dismissed for failure to submit this dispute to the required alternative dispute
resolution process. Plaintiff is hereby required to submit his complaint to the
appropriate Review Committee.
1998'
FA
,
y
Spero T. Lappas, Esquire
205 State Street, P.O. Box 8o8
Harrisburg, PA 17108-0808
By the Court,
/Ar . offer P.J.
Bridget E. Montgomery, Esquire
Eckert, Seamans, Cherin & Mellot LLC
213 Market Street, P.O. Box 1248
Harrisburg, PA 17108-1248 EXHIBIT
1
LESLIE WENRICH, D.C.,
Plaintiff
V.
HIGHMARK, INC. d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2288 CIVIL TERM
: CIVIL ACTION -LAW
BEFORE HOFFER P.J. AND HESS J.
PINION
HOFFER, P.J.:
This opinion concerns Defendant's preliminary objections to Plaintiff's
complaint. Leslie Wenrich, D.C. ("Plaintiff") filed suit against Highmark, Inc. ('PBS"
or "Defendant`) for defamation. Plaintiff is a doctor of chiropractic who is a
participating provider with PBS. Wenrich claims he sent bills to PBS for payment
in accordance with the PBS provider agreement.. Wenrich alleges that PBS
refused to pay these bills and sent notices to the applicable patients stating that
the reason for non-payment was that Wenrich's equipment was substandard.
Defendant claims that Plaintiff failed to provide the necessary information that
would have allowed PBS to determine the quality of Plaintiff's equipment. PBS has
filed a preliminary objection requesting that this case be dismissed and sent to
11
97-2288 CIVIL TERM
alternative dispute resolution as required under the Regulations for Participating
Providers.' We now find that Plaintiff is required to submit his complaint to the
appropriate alternative dispute resolution process before pursuing a remedy in the
court system.
DISCUSSION
Defendant Is a Pennsylvania non-profit professional health services
corporation which was organized and is currently operating pursuant to the
Pennsylvania Health Services Plan Corporation Act. This Act states that '(a]II
matters, disputes or controversies relating to the professional health services
rendered by the health service doctors... shall be considered and determined
only by health service doctors as selected in a manner prescribed in the by-laws
of the professional health service corporation." 40 Pa. C.S.A. Section 6324(c)
(1995).
The By-Laws of the Medical Service Association of Pennsylvania state that
'[a]II matters, disputes or controversies arising out of the relationship between the
Corporation and the professional health care providers... shall be considered and
' Defendant's second preliminary objection requests that, in the alternative
of sending this complaint to alternative dispute resolution, this Court dismiss
Plaintiff's Complaint for failure to state a claim upon which relief can be granted.
Because of the action this Court is taking today, there is no need to decide
Defendant's alternative request.
2
O'
97-2288 CIVIL TERM
determined by one of two Reviiew Committees." Article X, Sec. 1 (1995).
PBS' Regulations for Patient Providers further explain how these
controversies shall be decided The regulations state that "all matters, disputes or
controversies relating to the services performed by Participating Providers... shall
be considered, acted upon, disposed of and determined only by providers in a
manner provided by Article X of the By-Laws of Blue Shield. Regulations for
Participating Providers, General Regulations B(20). The Review Committee
Guidelines go on to say that "matters referred to the Review Committee generally
concern disputes with respect to overutilization and/or misutilization of services,
quality of care, service benefits and usual charge problems." PBS Review
Committee Guidelines, Appendix B.
In an opinion somewhat similar to the one at bar, this Court was asked to
determine whether a claim brought against PBS for interpretation of a providing
participant agreement between a health services provider and PBS was required
to initially go through an alternative dispute resolution process. The Court held that
40 Pa. C.S.A. Section 6324 of the Professional Health Services Plan Corporation
Act "gives PBS power to elect an administrative panel to hear and resolve disputes
concerning the professional health services rendered by its participating
physicians." RRS Imaging Assoc v. Medical Service Assn 42 D & C 3d 42, 43
3
01
97-2288 CIVIL TERM
(1985).
Additionally, the Pennsylvania Supreme Court has already recognized that
various statutes now encourage arbitration and alternative dispute resolution Is
favored by the courts. Borough of Ambridge Water Authority v Columbia.. 458 Pa
549, 328 A.2d 498, 500 (1974).
'Based upon the above requirements, this Court finds that the Plaintiff is
required under his agreement with PBS to first submit his complaint to alternative
dispute resolution rather than initially filing it with the court system. The
Pennsylvanla Health Services Plan Corporation Act clearly states that PBS has the
right to prescribe the manner used to settle disputes and controversies. PBS, in
its by-laws, has determined that all matters arising out of the relationship between
participating providers and PBS shall be disposed of via one of two Review
Committees. Based upon this reading, any dispute which falls under this
requirement must be determined by the Review Committee before it can be
removed to the court system.
The case at bar meets the requirement of a matter which arises out of the
relationship between a participating provider and PBS. Wenrich is a participating
provider who is required under the PBS agreement to forward certain information
to the Defendant in order for PBS to determine the quality of Wenrich's equipment.
4
97-2288 CIVIL TERM
In turn, Wenrich can submit his bills to PBS which then pays or denies the claim
and sends notices to the participating patients whom Wenrich has treated. Were
Wenrich not a participating provider for PBS, Defendant would not have had any
reason to send the supposedly defamatory letters to any of Wenrich's patients.
Therefore, this case arose from the relationship between Wenrich and PBS.
Furthermore, the PBS guidelines go on to say that the matters referred to
by the Review Committee generally concern disputes with respect to overutilization,
quality of care, service benefits and usual charge problems. Plaintiff alleges that
his claim does not fall within the list of disputes. Plaintiff fails to see that this list
is just a generality produced by PBS to show what disputes are commonly dealt
with by the Review Committee. However, there is no limitation placed upon this
list, nor does PBS specifically list any disputes which are not covered under the
Review Committee's jurisdiction.
Plaintiff characterizes his claim as one of defamation in a possible attempt
to avoid alternative dispute resolution. This Court finds that the dispute between
Plaintiff and Defendant is actually one based upon the requirements of Plaintiff as
a PBS provider. Although Plaintiff couches his complaint in terms of defamation,
this Court will not allow mere linguistics to prevent this case from going to
5
97-2288 CIVIL TERM
alternative dispute resolution! Additionally, this case could be viewed as dispute
over quality of care. Plaintiff's claim of defamation is based upon the fact that PBS
found Plaintiff's equipment to be substandard. This claim obviously goes to the
quality of care being offered by Plaintiff in his role as a participating provider in the
PBS program. For these reasons, Plaintiff is required to submit his complaint to
the appropriate PBS Review Committee.
Even if this Court were to find that Plaintiff's case is based upon
defamation, there is still authority to show that defamation can be arbitrated. The
Pennsylvania Superior Court has said that "although the intentional tort
of
defamation is not normally arbitrated," if the agreement is broad enough to
encompass defamation, such as allowing arbitration for any dispute arising out of
the relationship between the parties, then defamation cases may be arbitrated.
Waddell v. Shriber, 357 A.2d 571 (Pa. Super. 1976).
6
HEATHL ALLEN
N
DAVID RAHAL KEEFER WOOD ALLEN & RAHAL LLP
. , ESTABLISHED IN IB78
CHARLES W. RUSENDALL 11 210 WALNUT STREET
ROBERT L WELDON
EUGENE E. PEPIN5KY, JR P. O. BOX 11963 OF COUNSEL
THOMAS E WOOD
HARRISBURG, PA 17108-1963 WILLIAM 11 WOOD
JOHN H ENOS 111 SAMUEL C HARRY
GARY E FRENCH PHONE (717) 255-8000
DONNA 5 WELDON FAX (717) 255-8050 WEST SHORE OFFICE
BRADFORD DORRANCE -. 913 FALLOWFIELD ROAD
JEFFREY 5 STOKES EIN No 23 0716135 CAMP HILL. PA 17011
ROBERT R. CHURCH bDl 612 5800
STEPHEN L GROSE
R. SCOTT SHEARER '
WAYNE M. PECHT
March 30, 1999 WRITER
S DIRECT DAL'.
DONALD M LEWIS 111
BRIDGET M. WHITLEY
BRENDA 5 LYNCH
SHAWN W WEIS
(717) 255-8040
ALLAN J. ROSSI
JOHN A, FEICHTEL
Spero T. Lappas, Esquire
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
Re: Leslie Wenrich, D.C.
Appearance Before the Medical Review Committee
of Pennsylvania Shield...
Dear Spero:
I serve as counsel to the Medical Review Committee of
Pennsylvania Blue Shield. Jon Dubs has asked me to respond to
the procedural issues raised in your letter of March 8, 1999.
We have consistently taken the position that the medical
Review Committee is not a court of law, and that it would destroy
the "peer review" nature of the Committee's work if we were to
attempt to model its proceedings on those of a jury trial as you
suggest. We do not believe that the Committee must provide for
cross examination of witnesses, stenographic recording, or any of
the other procedural features that you request in order to
provide a fair hearing. Pennsylvania case law suggests that due
process requires only "notice and the opportunity to be heard and
to defend in an orderly proceeding adapted to the nature of the
case." Greenstein.v. Commonwealth of -.Pennsylvania, Department of
Health, 98 Pa. Cmwlth. 445, 512 A.2d 739, 743 (1986). More
specifically, the Superior Court, in Rudolph v. Pennsylvania Blue
Shield, 451 Pa. Super. 300, 679 A.2d 805 (1996) specifically
found that the procedures adopted by the Committee were
constitutionally adequate. (The Supreme Court's subsequent
reversal of Rudolph, 717 A.2d 508 (1998) was based solely on the
composition of the committee, not on its procedural guidelines.
The objections raised by the Supreme Court have subsequently been
EXHIBIT
Spero T. Lappas, Esquire
March 30, 1999
Page 2
addressed and we believe the composition of the committee now
meets the standards suggested by the Supreme Court.)
I have advised Mr. Dubs that the Committee should not change
its procedures in an ad hoc fashion to satisfy the requests of
individual providers or their attorneys. Accordingly, the
hearing on. May 4, 1999 will be conducted in accordance with the
Committee's standard practices.
You also indicated that you may want to challenge the
participation of certain Committee members. I have advised Mr.
Dubs that he should permit you to place any such challenges on
the record at the beginning of the proceeding and that any member
against whom a credible allegation of bias or conflict of
interest is made should abstain from participation in the
hearing.
If you have any other questions regarding the Committee
hearing, I will be happy to discuss them with you.
Very truly yours,
KEEFER W0O ALLEN & RAH L, LyLP
By: \,
E. Wood
TEW/ral
CC: Jon Dubs, Secretary, Medical Review Committee
0641 *99 TUE 14:55 FAX 717 975 7035 BENEFITS MGMT.
NNSY(MANIA BLUE SHIELD
Via Facsimile and Certified Mail
Return Rrceipt Requested
June 1, 1999
The Law Offices of Spero T. Lappas
205 State Street
Post Office Box 808
Harrisburg, PA 17108-808
Dear Attorney Lappas:
Pennsylvania Blue Shield operates under the provisions of the Health Services Plan Corporations
Act, 40 PA C.S.A. Section 6301 et seq. Section 6324 (c) of the Act requires that all matters,
disputes or controversies relating to professional health services rendered by health service
doctors, or any questions involving professional ethics, shall be considered and determined only
by health service doctors selected in a manner prescribed in the By-Laws of the professional
health service corporation involved.
Article X, Section 2, of the Pennsylvania Blue Shield By-Laws and Article IX, Section 9.2 of the
Highmark By-Laws stipulate that a Medical Review Committee be formed to consider, act upon,
dispose of and determine all controversies arising out of the relationship between Blue Shield
and professional providers who render health services to the corporation's subscribers. The
Medical Review Committee currently consists of eight doctors of medicine, one doctor of
osteopathy and one consumer representative.
The members of the Medical Review Committee wish to express their appreciation for the
information that you and your client, Leslie Wenrich, D.C., presented at the meeting held on
May 4. 1999. Subsequent to your presentation, the Chairman of the Medical Review Committee
dismissed all Pennsylvania Blue Shield staff from the meeting room. The Committee then
reviewed all information pertinent to your case, including the handouts which you distributed
during the meeting. After reviewing all of the information and considering the arguments that
both Dr. Wenrich and Pennsylvania Blue Shield presented, the Committee determined that, Dr.
Wenrich had breached his contractual obligations under the Pennsylvania Blue Shield
Participating Provider Regulations and that Blue Shield acted properly and within its rights when
it denied the claims submitted by Dr. Wenrich and when it promptly notified its members of the
reason for the denial.
EXHIBIT
.. n\•l..nui:l-.K'Ynr?n.Y?.r..Mllry.,y-n?iNnlht{-.•?,.\p YW }V.W.\...[iYrl
® 002
08?0199 TUE 14:30 FAX 717 975 7035
BEC`'EFITS HGNr.
The Law office of Spero T. Lappas
Page
Therefore, the Cotnminee found that Dr. Wenrich has no claim for damages against Blue Shield.
In support of this decision, the Committee relied upon the Blue Shield Regulations for
Participating Providers cited below.
B-9 The determination as to whether any covered service meets accepted
standards o1' practice in the community shall be made by Blue Shield in
consultation with providers engaged in active clinical practice. Fees for covered
services deemed not to meet accepted standards of practice shall not be collected
from tits subscriber.
13-15 Each Participating Provider shall permit Blue shield representatives to
make responsible examination of the provider's clinical records, including x-rays,
relating to any covered service performed for Blue Shield subscribers, when such
examination is necessary to resolve any question concerning such services.
If you have any question or wish to discuss any of dte information included in this
correspondence, please do not hesitate to contact me. I can be reached at (717) 763-3326,
xlillely,
on 1. Dubs
Secretary, Medical Review Committee
JID/jlg
Q003
cc: Thomas E. Wood, Esquire
Tija Hilton-Phillips, Esquire
Appendix A
BY-LAWS OF PENNSYLVANIA BLUE SHIELD
Excerpt
Revised April 19, 1995
ARTICLE X
Disputes and Controversies Involving Providers
Gur.tiu I I. Ur.,lrulo Iinsoluleit . All ncrllors, dispulus or conlroversios arising out of the relationship between
Ilw Cuipuudum ;uid pnrlessionol huallh care providers (fneroaf1w in this Article rolerred to as "providers") who
n:ndui huallh auivicus to the Corporrlion's subscribers, including any questions involving professional ethics,
skill hit cnm;nluied ,u1I dulumlinud by Ihu appropriate one of the of the two Review Commillees established
undue Iles Ailiclu.
Sucliun !. Murhr:;rl Review Committee. There shall be a Medical Review Committee consisting of at least
uighl (8) munihurs. each of whom shall bo appointed by the Chairman of the Board of Directors of One Corporation
and (1,101 of whom shall solve until tits or her successor is appointed. A majority of the members of the Medical
Iioviow C'olnniitlou shall he providers who aro members of the Corporation, and the balance of the members
;;lull he nioridlns of the Corporation who are subscribers to health care contracts entered into with the
Curpuruliun.
Section 3. Dr ital Review Committee. There shall be a Dental Review Committee consisting of at least
uigll (it) alumbeis, each of whom shall be appointed by the Chairman of the Board of Directors of the Corporation
am I uach of whom shall serve until his or her successor is appointed. A majority of the members of the Dental
fieviow Cominitlou shall he dentists who are members of the Corporation, and the balance of the members
shall bo members of the Corporation who are subscribers to health care contracts entered into with the
Corporation.
Section 4. Officers of Review Committees. The Chairman of the Board of Directors of the Corporation
shall appoint Iwo officers for each Review Committee: a Chairperson, who shall be one of the members of the
Committee, and a Secretary, who shall riot be a member of the Committee but shall be an employee of the
Corporation. The Chairperson shall preside at all meetings of the Committee, but shall not vole in any matter
being considored by the Committee except when necessary to break a tie. The Secretary shall perform the
duties enumerated in Sections 7 and 8 of this Article X, and such other duties as the Chairperson of the
Committee shall assign.
Section 5. Review Committee Meetings - Quorum. Each Review Committee shall meet at a call of the
Chairpurson of the Committee. Meetings of each Review Committee may also be called for any appropriate
date, lime and place by any three (3) members of the Committee involved. The date, time and place of each
meeting of a Review Conmittee shall be set forth in a written notice which shall be sent to each member of the
Commillee a reasonable time in advance of the meeting.
A malurily Of the members of a Review Committee who are providers shall constitute a quorum for the
transaclion of business and the acts of a majority of such members present at a meeting at which a quorum is
present shall be the acts of the Review Committee. If the members of a Review Committee shall severally or
colloclively consent unanimously in writing to any action proposed to be taken by the Committee, such action
shall but as valid an action as though it had been taken by the Committee at a duly convened meeting.
Section (i. Submission of Matters to the Review Committee. Matters may be submitted to a Review
Conunillcu by airy one of the lollowing:
(a) Auy inuniher of Ihu Corpurtrliun or of the Board of Directors of the Corporation;
(r) lhu Suhscnber Advisory Council of the Corporation or the Professional Advisory Council of the
Corporation;
EXHIBIT
(c) Ihu Bu(araiy or any nwmher of a Review Comnlillee;
(d) Any I ;uhcipahnll pruvader or Prelerrod Provider.
All "' na:ny of of Ihha r; l lc suhnull;u lu it
Iir:vew Cunllllltlee shall be set
Al -u li owuw Cuimnilleu
awufvod. lurch u1 writing and delivered to the
Inuwder the Review Conundlees forth maintain written procedures to
1:•sun: Ili.d s n:cwvu lull and lair corlslderation of any issues presented to the Committees.
slLdl I•rrr:p!IUholo ,11 f1 I11dalul II I(! nhallurslto `be WnS dered ?1 dUChl`(;d"'The rI11Ude lllllde'hll
Committee
h11 FIl nh.dlul hulue 11111 Cunanll lee shall be Wovidud with a welter summary of [hat matter a reasonable Provider involved
time +uI in
vII(! ("o ,il Ile nu:oluul, dual ;;hall have Ihu fight to appear baton Ile COMMIllee at (110 (eelin
oil III(! nunilluu :;I ,dl I)(! pn,veled will) the summaries of all "'alters to be considered at (he meetin
nu:nd,w nl ;, liuvww Cunundlue' shat' participate hl a Review Conanlllee's deliberations or vote, where hatr
0'ur rr":niber ,dsu solved as an adviser to the Corporation regarding the matter under review, unless expressly
uapu:ra'-'I to du so by the provldeh under review.
hl) ")"sI(loioi9'lily 'nafter bunhghl before it, a Review Coln'llillee shall have authority to take any one or
Inure ul the following aclons:
(a) Ruler III(.' maltur to the other Review Comnlillee for appropriate action;
(b) Iiulur the arse for recununendalion or action by any appropriate committee, board or division of the
Sl"le Plulessiolcil Society or Local Professional Society of file provider involved;
('-) Rehtr "to "'after to art appropriate law enforcement officer or agency of the Federal, State or any
Local Cuvununenl if (he Conunillee has probable cause to believe that the provider involved secured
p;lymunl hunt the Corporation for services performed by the provider for a subscriber on the basis of
nl:llerial'also 6four allorl submilled to the Corporation with the intention of defrauding it;
GQ liefor the nlator to the Stale Professional Licensure Board of the provider involved;
(e) Rorlder a finding that the Corporation is entitled to a refund of fees paid to the provider,
(1) Rrtder a f riling that authorizes the Corporation to collect any refund by withholding future payments
due front Ihu Corporation to the provider involved;
(g) If a parln:ular matter involves conduct which would justify denying a provider registration as a
Parlhcipaing Provider, er termination of a provider as a Participating Provider of the Corporation, the
Co'1111111100 May died that a hearing be held in accordance with Section 8 of this Article X to consider
If to pmvi001's parlicipating status. Such conduct may include:
(1) Violalhun of the Participating Provider's Agreement;
(a) Violation of the regulatory legislation applicable to the Corporation;
(m) Vn,ldlion of file Regulations for Participating Providers of the Corporation;
(IV) Refusal III Whole to the billing, payment, or service benefit provisions of any health plan in
which Ihu provider parlicipales; or
(v) Vlolilun of I ddwal or Slate criminal slatutes.
(Iq Render such decision or blhe any uthr such action as may be necessary or appropriate to fully
Ie5011VU any dispute pesentu(I to file Commdlea.
-- 2-
:.I •. Iilni 11 Ihlu.ul:IIII It g, Invulvnul tihaus ul a Pluvidu its it Parla:grdulg Provider. The plocudures set
Ilnlh w Ilir, :,w luni ,gyily ni ,III ,., C;u;, n:I,auuI lu Ihu status of if pruvider as a Partlclpahng PWvlder of the
I In I'„i,]lilt 111 .111 'a, It I,r,us, lh(! tlucuadly of the CE)IIIIIIIIleO shall recµlest legal cuunsel to the Corporation
I,. In1 y'.u?: ,ni ggnlqnl,du Colill'Lunl sulling luith Ilse dllegaliuns against the provider. the Chairpuwsun shall
Jill 01111 illy e. ,I win•, II.dC ilul IJdLU fill I hitting Ihu provides involved shall tie given at least fifteen (15) days
wnllun mine by flu: ';u,.icl,ay ill Ihu Cununineu ill IN! date, little and place of such healing, and shall be
Ione:.hu1l Willi .1 i.ulry III the Cuttgllded. the provider shall be allowed to file a written Answer to the Complaint,
pe Ivu Iu1J :;el.h Airmul r.. filed Willi Ihu Socretary of Iles Commmue at least five (5) days prior to the hearing. Al
Ihu Iw.111ng, !.III If wllne:,,.us Indy hu hu;ud and such evidence may be received as is courted to be relevant and
I'I 11•,I'Mil'Iblu IIIUh,IlIV1: Vdlnn, pnNllled, however, that formal files of evidence need not be followed. The
I'IIIVII lle ,dlech:d by III(! L'uu,pl,unt :,hall fill afforded a reasonable opporlunify to be heard before the Committee,
ullhur in pufsoo of by I:uunsel, ;Ind to produce evidence and witnesses at such hearing. All testimony shall be
:dullo,pulducally mcunlud and a cumplele record shall tie kept of the hearing.
Allot Ihu hu;uing, lilt! Huvlow C;oninutlee, by majority vote of those members who are providers, shall
I,Ihu wll;dlvcl achun it dawns appmphato, based on the evidence and testimony produced at the hearing and,
it swat uchun involve:; udhw Iho denrll of rogislralion as a Participating Provider, or suspension or termination
.'i : pnwidel':; pnlhcip;duul stales, the mailer shall be promptly referred to the Secretary of Health of the
Colnnlnnwuullh of I'elic;ylv;eu;l for approval or for such other action as the Secretary may deem appropriate.
Suchen q. Itcpwts by Ihu Review Committee. Each Review Committee shall report at least once every
six (h) rnunlhs to Iho fluaul of Ilin;clurs of the Corporation respecting its activities under this Article X.
Appendix B
PENNSYLVANIA BLUE SHIELD
Review Committee Guidelines
I ollosylwrni,r I lluu ;;luclil olwl,,tlus undur 1110 provisions of Act 271 of 1972 (40 PA. C.S. Section 6301 el
se l.). tluctunh f0;',I (c) ul Ihu Act requires Ihrl all mallets, disputes or conlrovorsios totaling to professional
hudlh srnvlcu rtuctur.; nh ;illy quoshons involving professional ethics shall be considered and determined only
by Iw;iltli service ductou, euluctod in if ncrnner proscribed in the By.Iuws of the professional health service
cohpnntlion uwntvud.
I he 1)luu :;head I ly law:; (Ar Wee X) slrpulale drat Review Committees he formed to consider and determine
Ill,hllum, dispute:; of conhuvuhsus arising out of the relationship between Blue Shield and professional providers
Who milder health sevcus.
Ihu Mor6r,11 liuvlow CnIII) ltuu considers all matters, disputes or controversies involving all professional
pmwduhs who n:h elur heath services. I he Dunlat Review Conuniltee considers matters, disputes or controversies
Involving dmilists.
Ihu matter.; n:fuhrod Iu to lieviow Comniflees generally concern disputes with respect to overutitization
;hnhl/uh uucuhhiahmh ul surwcas, quality ul care, service benefits and usual charge problems.
the lulluwnul pnrcudines are applicable to Review Committees:
I ur nrda:r lovulwng potential overuti6eation and/or misulilization of services or inappropriate quality of
cam, if rumtdutr. Ioviuw is conducted of the provider's practice pattern prior to referral to a Review
(;eITII?JIIhA:. I)ruing this u:vww, a sample of patient records, statistics, diagnostic aids, and/or other
it lunn;tlwnnl suwc:us is reviewed, the results of such review, as well as the complete methodology
used, will bu made uvad;ihlu to the provider when any adverse findings result. Should the provider
disa(poe Willi the resells of the review clue to the sample size, the provider may request an expanded
rewuw.
If it a; dutunninel that an overpayment has been mada, the amount of the overpayment will be
calculalud for if peiod of time not to exceed that permitted by the Statute of Limitations. The
msulls of :,ucli overpayment calculations will be made available to the provider. The provider will be
lunnshud with Ilia methodology used to calculate the overpayment, including any variables used to
adphsl nhlhlu year overpayment determinations.
A. It it r.; dhscovoud in the review process that an underpayment has occurred, the provider may seek
ruunbursuna:nt, through the appropriate appeal mechanisms, for all claims involved during the same
luau ponud ;c; the review by Blue Shield. Such claims must be supported by clinical records.
.1. 11 the nialtuh will nut be rclerred lot prosecution, and does riot pertain to a hearing to consider whether a
luuvide :,hound bu susponded or lenninated as a Participating Provider, a Blue Shield representative will
contact Ihu pmviduh to discuss all findings. If the provider elects not to meet with a representative or if a
nheulOhq can Wt be arranged within a reasonable period of time, the information will be transmitted to the
lunvidur try mill, At that lulu, tho provider is advised of all findings of an adverse or problematic nature
;md of the Ippoal mechanisms available to the provider. The provider is provided Willi a detailed, written
sl,lunu:hl nidliuing the basis of any refund request. Tlie provider is also advised of the repayment
Milieu:; nv.ulnblo to lam of her, ;aid is provided with a ropy of the Review Committee Guidelines. The
Inuvrduh will lit! uncouraood to subnnt any additional infonnaaon which could have a bearing on the
hu,ltuh and/uh cm,de Iho basis for if solllement or adjusimont to the refund amount requested, if any.
1;huulhl Iwlho couununicahuns fail to result in an agroem:nt as to the provider's refunding an
uvepayowol, it illy, or other matters porlaining to the review, the provider will receive written
nohhc;dwn it lu,ml fluffy (30) calendar clays in advance of the date of the Review Committee meeting
,it wluclh the povider's rinse will bu considered, of his or her right to appear before the Committee
uud ill his ur ho nghl lu bu ruprosenled by lagal counsel. the provider is again encouraged to
Inuvulo ;illy nl nl which ncay he peril sent to tho resolution of 1110 nwller. Accompanying the
lulhn t unulli,rl ( tI ? opy ? (,I 1) Ihu basis of any rotund request,
I the applicable stictlorl
I "nlII'M!, In I l.OvIdIt) ulI';; Huvn:w Cunnniltuos,'lie Reviow Cunenllletl GullLi us (vids) urand,s.
gntlnul I 'n,vi Agluunfrnl ;ulal I';u hcipaling pro
will hl) of if the Blue Shield
Ihu Hogulah(n Is Inr applicable, the
Al h:,c,l ilia ,,:n Il g,Ilua,l,Ir clay;; pnur lu Ihu dale (11 Ih0 Huvww Cunfnllltut: floating at will cunsolured. (lit! providur will hl) yivaf a copy Of Ihu dncurnonlallon to be
Incsnlnu,l If, Ihu Rmim Cunendloc. J' which the
{ n uwdc, n r, ry Iw w, n d e tan n; Ilion 101ho Review Cone niheo or. upon writ ten n:qur;sl
ul Ile: Cuninnlluu, ewy ;gglual beluro tho Conunih0e. It) the Secretary hr. UuninuUuu Will A providur who requests to appear before
I Ill! [tubbed Of the dale and (into ul his of her appearance at least 1i11een (15)
caL:nll,n day;; pnur le Ihu mg:uleig. Such notilicatien will
I pn Inform Um pulwder of the exact nature of
inh l llro ll wiillch ul Ih will u aldul Ill(" Ill(uConuright to represent his or her dlsagreentenl and to provide any other
If M;eulu ccinn,; t; scnihee et its deliberation of the maller,
hudl)lo;tl to bo brought hefore the Review Committee will not
basis belwron be deliberated on a formal
uI ;ui udunu;Il Rlue Shield Staff and COnlnllllee members prior to the scheduled date
nl ihu Culmniltuu nleeliflu axc:ulll at the request of the provider. Should the provider ([take such a
n:yuosh Ihr, results will he hilly disclosed to the provider in writing.
) A limiow Cunonille0's (:unmdorallon of any (natter, dispute or controversy concerning a provider
will) has a:quosled to appear will be continued until after the scheduled appearance of the provider
oxcepl as lulluws:
u. II Ihu provider Is nohficd of the Couunitlee meeting 45 or more calendar days in advance of
such nwalufg and advises file Secretary of the Committee, that he or she wishes to ultend but is
unabl0 lu ho present an the SPecilic date scheduled, file Commitlee will proceed with its
r:unsulemhull of Ill; matter. However, the provider will be given the opportunity to appear before
Ihu Cunuolha; at its nexl scheduled meeting.
b. 11 nulilication is 80111 less than 45 calendar days prior to the COnlmlltee meeling and the provider
advises Iha Secretary of the Commillee that the or she wishes to attend the meeling, but is
unable to do so orb life specific dale scheduled, the provider will be granted one continuance.
'lie Commitlee will proceed with its consideration of the matter at the next scheduled meeting
it the pruvidt r, following notification as provided for in Ilem 5 above, fails to appear.
Ill. fulluwmy the Roview Committee meeting, the provider will be advised in willing within thirty (30)
g:alaxlar (Idys of all determinations made by the Commitlee. Such notification will include, but not
bu lilnilod 10, the arttoenl of any refund at issue, the facts and reasoning supporting Blue Shield's
runclusil)ns, and, for Parliapaling Providers, the specific basis in Regulation of Blue Shield's claim.
Fur Ihese malters involving file participating status of a provider, the provider will be notified within
Ihirly 00) calendar days following a determination by life Secretary of Health.
I I. Any Ovt:rhaymwil it"100ols which have not been returned to Blue Shield within thirty (30) calendar
days of nutificalion of the Reviow Committee's determination will be subject to withholding of
payniunls duo Ulu Parlicipaling Provider and the assessment of interest. Interest will also be assessed
urI insl011nienl Payne/nl arfangentenls which exceed 90 days. The rate of interest is based upon the
91) I)ay 110asury Hill rate in etfoct al the beginning of the calendar quarter during which a Review
Cwnn111100 d0uslun or an installment repayment agreemenl is reached.
I?. II 'lit! Rr1Vlllw (:ommllloe dulurltill les that a hearing should be held to consider whether a provider
should Ito suspundud or tonuinaled as a Participating I'rnvider, fife proceedings will be conducted
as sul forth w Adicle X, Sucliun ti, of the Blue Shield By laws, and in the manner described in these
guidelines.
--1 --
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUlIgpr:,
I verify that I am the PLAINTIFF in the foregoing action, and
that the foregoing document is based upon the information which has
been gathered by my counsel in preparation of this lawsuit. The
language of the document is that of counsel and is not mine. I
have read the document and, to the extent that it is based upon
information which I have given to my counsel, it is true and
correct to the best of my knowledge, information, and belief. To
the extent that the contents of the document are that of counsel,
I have relied upon counsel in making this Verification.
I understand that intentional false statements herein are made
subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn
falsifications made to authorities.
LESLIE WENRICH, D.C.
,:.
?`?
>,
?•.
,:-,
,,, ?;;
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i ;;
L' ? \J
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-04000 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WENRICH LESLIE DC
VS.
PENNSYLVANIA BLUE SHIELD
BRIAN BARRICK , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within NOTICE & COMPLAINT, RULE TO was served
upon HIGHMARK INC D/S/A PA BLUE SHIELD the
defendant, at 15:47 HOURS, on the 1st day of July
1999 at 1800 CENTER STREET
CAMP HILL, PA 17011 CUMBERLAND
County, Pennsylvania, by handing to SALLY MCCOY (PARALEGAL)
a true and attested copy of the NOTICE & COMPLAINT, RULE TO
together with SHOW CAUSE, PETITION TO VACATE
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 18.00
Service 9.30
Affidavit .00 ?
Surcharge 8.00 R. "P omas. ine,
X35-30-SPFRO T. LAPPAS
07/02/1999
by epu y eri
Sworn and subscribed to before me
this J,n„c day ofL
19gig. A.D.
I
A-L-
LESLIE WENRICH, D.C., : IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
HIGHMARK, INC.,
d/b/a PENNSYLVANIA
BLUE SHIELD, NO. 97-2288 CIVIL TERM
Defendant NO. 99-4000 CIVIL TER iZ
ORDER OF COURT
AND NOW, this ! day of April, 2000, it is ordered and directed that the hearing
previously scheduled by the Honorable George E. Hoffer on Defendant's Petition for
Confidentiality Order for May 15, 2000, is rescheduled to Thursday, June 22, 2000, at
1:30 p.m., before the undersigned judge, in Courtroom No. 1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
Spero T. Lappas, Esq.
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
Attorney for Plaintiff
James A. Young, Esq.
Michael J. Bums, Esq.
Barbara L. Schmuck, Esq.
CHRISTIE, PABARUE,
MORTENSEN & YOUNG
1880 JFK Boulevard, 10" Fl.
Philadelphia, PA 19103-7424
Attorneys for Defendant
ir FrI „ OM RECORD
In T:s..+ h_re unto s,,t nr? hand
and the s,.ai of said Couri at Carkle, Pa. ?
Thi r? ay f..Q..
rothonotary
:rc
BY THE COURT,
MAR 3 0 200
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Blvd., 10"' Floor
Philadelphia, PA 19103
215-587-1600
LESLIE WENRICH, D.C.
vs.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Attorneys For:
Defendant Highmark, Inc.
d/b/a Pennsylvania Blue
Shield
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW /
NO. 97-2288 and 99-4000
ORDER
And now this c? day of l 2001, upon
consideration of the Defendant's Motion, joined by the Plaintiff, the discovery period in
this case is extended to May 31, 2001.
BY THE COURT:
U
Ju
oa ° 5
C?
336984-1
LESLIE WENRICH, D.C.
Plaintiff
V.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4000 CIVIL TERM
CIVIL ACTION-LAW
JURY TRIAL DEMANDED
M RULE TO SHOW CA E
AND NOW, this day of 2001, upon consideration of
the Motion To Quash Subpoenas, a Rule is iss d upon Plaintiff to show cause, if any
there be, why the relief requested in the Motion should not be granted.
Rule returnable at a heerimg ashedaied fcc. o tilt: ?y ,.Z691 e+ a,in-lgrr?r-in?6oertieenrTie?--?vr?
BY THE COURT,
P?.
-9
+ rYtS?L?a et 6
kbppbs
c.
ifs - _
LESLIE WENRICH, D.C. IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-4000 CIVIL TERM
HIGHMARK, INC., d/b/a CIVIL ACTION-LAW
PENNSYLVANIA BLUE SHIELD :
Defendant JURY TRIAL DEMANDED
MOTION TO QUASH SUBPOENAS
Movant is Robert L. O'Brien, Esquire, Attorney for Robert Albertini, M.D.,
W. Scott Nettrour, M.D. and William Daiber, M.D.
2. Movant was recently contacted to represent the aforesaid physicians and
other physicians from the Medical Review Committee at Pennsylvania Blue Shield who
would be subpoenaed in the above captioned matter. Subpoenas were served on the
three physicians on or about May 7, 2001. Upon learning of the service of the
Subpoenas, Movant contacted Spero T. Lappas, Esquire's offices to discuss with Mr.
Lappas rescheduling the depositions so as to allow Movant to speak with his clients as
well as to allow for depositions by telephone for those at a distance from Harrisburg.
Movant has had no response from Attorney Lappas to this point and time.
3. All three physicians are engaged in the active practice of medicine and
have commitments to their patients. Dr. Albertini is currently on vacation and Movant is
unable to speak with him.
WHEREFORE, Movant respectfully requests that this Honorable Court quash the
subpoenas scheduling oral depositions of the three physicians scheduled for Thursday,
May 17, 2001 so as to permit Movant to discuss the deposition process with his clients,
to review the background materials of the lawsuit and to provide for the needs of the
physicians patients by scheduling depositions via telephone at times more convenient
to the witnesses.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
rlo.d i r/c Iientelhig hma rk/q uas h.mot
CERTIFICATE OF SERVICE
I hereby certify that on May 11, 2001, I, Robert L. O'Brien, Esquire of O'Brien, Baric
& Scherer, did serve a copy of the Motion To Quash Subpoenas, via facsimile to (717)
238-4826 and by fast class U.S. mail, postage prepaid, to the party listed below, as follows:
Spero T. Lappas, Esquire
205 State Street
Harrisburg, Pennsylvania 17101
Robert L. O'Brien, Esquire
pc d ?b
h mar
0enn511 Ue.S
SUSP
70:
I , You are order4d nby the court to
,.
at ?
In the above eafa, and to tamaln d
2• And bring w th you the following'
"W
Z2160
the limited to 0
REOUESTED B
Name:
Address: J
Telephone:
Supreme
Date:
Mcial
P. No.
2•
end or to produce
authorized by Ru
s. attorney fees a
A
77
File No.
1?
AVENO ANDTESTIFY
lecity00`L urAwomorotherplia)
„L,,,- County, Pennsylvania, on
M., to testify on behalf of
excused.
ulnd by this subpoens, you may be subject to
documents or things re9
p4,5 of the Pennsylvania Rules of civil Procedure, Including but no
yiprisonment.
IN COMPLIANCE WITH Pa• R, 0• P• No. 234,2(e)
t
ID * u it BY E COURT:
ProthonotuyrClerk Ch sbn
oapuH
e s Court howl"gs in
pa shell be used whensvsr a subpoena Is iesuable, including
te; This form of subp fete paragraph
wdh depositions an •,itr@ Gon tf& ofs- docjMsn%scards artth ngs is desined Foomp with Pa. R• 01 ft. if a subpoena for 9p (Ett,7/97
1
I:
,III
V:A9 1N35
?? ua«e•i in-r. -e
COUNTY OF CUMBERLANu
Ali e-
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P ettn5y 1 w? i a "l?jl u.e. Sh r,e ldf
errRPOENATO
TO:
File NO. ?. daPP
ANDTESTIFY
..? ?yGFi•ae o? " I- S
You are order d by the court to come to?? V
810 telp courtroom otlxr Naea1 I1 aUU
county, Pennsylvania, on
?-
SIWL
at tc testify on banalf of
o'clock,
at
in the above as e, and to remain urftil excused.
2. And bring wl h you the following: -
by this subpoena, you may be subject to
vanfa R of Civil Procedure, including but not
documnts Or TO
o produce u165
Ru a 234 5 otehe Pe nayi things required
nd by and imprisonment.
ey
IATTORNE`r.IN COMPLIANCE WITH Pa. R. C. P. No.234.2(a
REQY
Name:
Address:
;Ourt X 45
Telepnone: T,
J d BY THE COUR
Supreme Court D # n
Deputy
Data: seal of 1h4 Court hearings In
Iiancewith Pa,
This torn of subpoena ,hall be used whenever a subpoena a iasuabla, including
a paragraph
Official No R.
on Ith i s form i of s and ens Ia arbitrators, masters, commissioners, etc. In camp
co Official
roduclion of documents, records or things is desired, Comp le
P. No. 234.1. It a subpoena for a p, (Efl. 7197)
2 ?I ?i,
GUeI COUNTY OF CuN10'.
Y.
mar ?-
ly
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TO:
you ate ordere
at
at
in the above c
2. And bring wit
U you tail to a
the sanction
limited to Co
REQUESTED
Natret
. Address: ?r..
Telephone: y
supreme court
Date:
ofricial N
connectit
P. No. 23
2.
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File No.
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SUSPOSNATO ATTEND ANOTESTIFY
the Court to come to
,
'f ev rlro0fn or other Place)
tsa•u?/Q01 n Pennsylvan{a,on
1 O
i CCU ry,
A M•, to testify on bahell of
,$a and and to retrain until ettcused.
you the t0llowln0: -,--- -~
Y be subject TO
trte
s re uiredby this subpoena, you b
of the o1 Clwl Procedure, including ut not
ents or things q
tend o to pr°dyC° the docum Pennsylvania Rules Rule 34-5 .
U, author attorney rized(beee and?tnP115Onment C, P. No.2342(4
ANCBWITH Pa. R.
A PARTYIATTOFINEy IN COMP1l '
gY T E COURT:
GerkGet on
on l
prclhotary
r
sees ort . court Z%-.X; reerings in
r a ss,rable, includin9? Pe. R. C.
oena is i
s?ii ? usedwheneve s lis iaragraph etc s; This corm of subPbra tars, ordsor things is dsalred, Complete P
orators, with dsPositlonsat,dt?elorea,docross (Eft, 71911
t, it a subpoena lot a ptcducrn o I documents, to
o
U W _?
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d ? ? Z
Z i
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C
? V
O
MAY 1 4 2001 '?
The Law offices of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
By: SPERO T. LAPPAS, Esquire
Pa. Supreme Court identification no. 25745
ATTORNEY FOR THE PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C. CIVIL ACTION - LAW
Plaintiff
No.: 99-4000 CIVIL
V.
HIGHMARK, INC., d/b/a JURY TRIAL DEMANDED
PENNSYLVANIA BLUE SHIELD,
Defendant
PLAINTIFF'S REPLY TO MOTION TO QUASH SUBPOENAS
AND RULE TO SHOW CAUSE
1. Admitted.
2. As to when Attorney O'Brien was contacted to represent
these witnesses, Plaintiff has no knowledge. Admitted the
subpoenas were served on the three witnesses. Admitted that
Attorney O'Brien called Attorney LappasIs office. Attorney Lappas
returned the call and so far has not received a return phone call.
3. Denied for lack of proof. Plaintiff notes that if
Attorney O'Brien has not spoken with Dr. Albertini there should be
a serious question as to the validity of the legal representation.
NEW MATTER
4. The witnesses have not provided any valid reason why they
cannot appear for deposition.
The Law Offices of SPERO T. LAPPAS
Page 1
5. Before the serving of these deposition subpoenas, the
date, time, and place of the deposition was agreed upon by
extensive negotiation between Plaintiffs Counsel and the Office of
Attorney Michael Burns, who previously indicated that he
represented these doctors and who has during this litigation
represented Highmark, Inc. Attorney Burns later indicated that he
did not represent the witnesses.
6. The very nature of this case involves the question as to
whether or not Highmark is in a position to exert unwarranted and
illegal personal, financial, and administrative influence over its
medical review committee, including these three witnesses who have
now been subpoenaed for deposition. This case also involves issues
of conflict of interest. If in fact Highmark, Inc., or persons
operating on behalf of Highmark, precipitated the filing of this
motion or retained counsel to file said motion, those facts would
support the Plaintiff fIs contention that the medical review
committee is not an independent arbiter of claims but rather is a
tool of Highmark, Inc.
The Law Offices of SPERO T. LAPPAS
Page 2
E;
WHEREFORE, the Plaintiff requests that the motion to Quash
Subpoenas be denied.
RESPECTFULLY S MITTED,
The Law Of?Si¢ a of SPERO T. LAPPAS
,, n
By:?-' ?U V
` SPERO-'T. LAPPAS, Esquire
Pa. Supreme Ct. ID no. 25745
205 State Street
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEY FOR PLAINTIFF
The Law Offices of SPERO T. LAPPAS
Page 3
CERTIFICATE OF SERVICE
I hereby certify that on this date I served a true copy of the
attached document upon the person(s) named below by mailing a copy
addressed as follows, postage pre-paid, deposited into the U.S.
Mail at Harrisburg, Pa.
Michael J. Burns, Esquire
Christie, Pabarue, Mortensen, Young
1880 JFK Boulevard, 10th Floor
Philadelphia, PA 19103-7424
Robert O'Brien, Esquire
17 West South Street
Carlisle, PA 17013
DATE : I
RESPECTFULLY SUBMITTED,
The 7V-7fflicof SPERO T. LAPPAS
By K,SPERO-T.'LAPPAS, ESQUIRE
Pa. Supreme Ct. ID No. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
The Law Offices of SPERO T. LAPPAS
Page 4
,., _
-.
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> ?:
M I
LESLIE WENRICH, D.C.
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4000
HIGHMARK, INC., d/b/a CIVIL ACTION - LAW
PENNSYLVANIA BLUE SHIELD :
Defendant JURY TRIAL DEMANDED
ORDER OF COURT
AND NOW, this day of August, 2001, upon review of the motion filed by
Robert L. O'Brien, Esquire, the stay of the proceedings in reference to Dr. William
Daiber, 4303 Londonderry Road, Harrisburg, Pennsylvania, is lifted to permit his
deposition on Wednesday, August 22, 2001 at 10:30 a.m.
BY THE COURT,
/A 1/jr." -
orge E. offer, P.J. p
V.? ,?
., 'C a .a; _.?. '., ..; ?
LESLIE WENRICH, D.C. IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-4000
HIGHMARK, INC., d/b/a CIVIL ACTION -LAW
PENNSYLVANIA BLUE SHIELD
Defendant JURY TRIAL DEMANDED
MOTION TO ALLOW
DEPOSITIONS TO PROCEED
1. Movant is Robert L. O'Brien, Esquire, an attorney for certain physicians
scheduled to be deposed in the above-captioned matter.
2. Movant had sought and received a stay of the deposition process on May
11, 2001.
3. Movant has worked with Plaintiff's attorney, Spero T. Lappas, Esquire,
and the Defendant's attorney, Michael Burns, Esquire, to establish deposition dates for
three physicians.
4. Depositions have been arranged for Dr. Albertini and Dr. Daiber. A
deposition time by telephone has to be arranged for Dr. Nettrour, who practices in the
Pittsburgh area.
5. Dr. Albertini is currently sitting on a jury panel in Montour County hearing
a murder case. He will be unable to attend the deposition. Dr. Daiber is available and
will attend the deposition.
WHEREFORE, Movant respectfully requests that the stay be lifted in
reference to Dr. Daiber so as to permit his deposition on Wednesday, August 22, 2001
at 10:30 a.m.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
N
By:
Robert L. O'Brien, Esquire
I. D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
rlo.dir/clients/highmark/deposition.mot
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SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, Pennsylvania 17110-9670
Telephone (717) 540-9170
Fax (717) 540-5481
By: SPERO T. LAPPAS, Esquire
Pa. Supreme Court ID no. 25745
slappas@ssbc-law.com
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
LESLIE WENRICH, D.C. CIVIL ACTION - LAW
Plaintiff
No.: 99-4000 CIVIL
V. 97-2288 CIVIL
JURY TRIAL DEMANDED
HIGHMARK, INC., d/bla
PENNSYLVANIA BLUE SHIELD,
Defendant
PLAINTIFF'S DOCUMENTS IN OPPOSITION TO DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
RESPECTFULLn SUBMITTED,
SE``RRATELLI, ,?CHIFFMAN, BROWN AND CALHOON, P. C.
By
SPERO LABPAS, Esquire
Pa, Supreme Ct. ID no. 25745
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110-9670
(717) 540-9170
ATTORNEYS FOR THE PLAINTIFF
SERRATELLI, .SCHIFFMAN BROWN AND CALHOON, P. C.
By: SPFRO T. LAPPAS, Esquire
Page 1
TABLE TO EXHIBITS
1. Defendant's letter to Plaintiff's patients.
2. Albertini Deposition
3. Daibler deposition.
4. Defendant's letter to Plaintiff
2
sMM
'llla
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i'q•1111vylvllnia
BItlcfihielll
L-,PLANATION OF BENEFITS
KEEP FOR YOUR TAX RECORDS
xw. tole' ....... u... rl.n. .1 r.nn.p...l. .,. I........
t inn.. .11.. Rlw O.n.a Rl" Ld.q A . . . . I..,.,
PENNSYLVANIA RELIC 5111110
CUSTOMER SERVICE
r0 BOX 090056
CAMr HILL PA 17oa9-0076
Subscriber: DENNIS L SCHNECK
Patient: CIIARLOTTE B SCHNECK
Provider: LESLIE W WENRICH DC
(000115611)
PROCEOURE DESCRIPTION
PROCEDURE CODE
ENLRIRER Of SERVICES) SERVICE
^--- DATE(S)
SPINAL XRAY
72050 10011 07/00/96
SPINAL XRAY
7,.$100 10011 07/00!7u
ID Number: 168323241
Page: I of 1
Claim Number: 56255012612
Date: 09/12/9(,
uV1DER'S ALLOWANCE JAMOUNT PAID
CHARGE AMOUNT NOT PAID REMARKS
45.00 ??00 .00 45.00 D5145
75.00
.00 .00 75.00 D514S
D5145
Pennsylvania Blue
Sh
di ield has determined that the a uipment used to
agnostic test does not meet the accepted standard of quality in the community.
Therefore, no payment will be made, provide this
patient for this service. 71 Participating provider may not bill the
i.
' i
111111?111f11'II II II II III IIiIII111Il iII l11 !,?,??,I II IItI,'ll'
1)L11NIS 1 SCIIIICCX
Ntl I e;Jx 31:N
PIK, 1,A
i
THIZS' IS NOT A B11-1.
HAV,U, A•. QUt TIUN? Pi Fn;F
Robert E.
1 Lf.9L!F NF.:141CN, C.C..
Pul.a:rr
3
v.
NIGNNA116, INC.. C/0/A
i PENN3V.VANIA PLYL SHIELO,
L`E 1:'.HOANr
e
E
M.D.
IN TPE COW CF CJYM:N PLG•:
CONBEPUNO OOONtY. 1'A
NO. 94-100rr
CI V:1. A'7 t0r, 'A.
! JEWSIT:ON Cr. ROPERr E. .LLFEq:: `G. +
.1 -1 1 L.11TI11
FEPOPrEPNnTFgT AIYLT
,J.:E: LAtl OFFICES J,' .PE.O :. A. ,.
II 20i STFTE STREET
vFRR aBCqu. PENNSICar::.
13
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., Nt: ^FPT b. JICRERINM1, ca _u 16!
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Condense t!"
December
Page 3
I S'1'IPULA11ON
I_ It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
1 4 filing and certification ore waived; and that all
i 5 objections except as to the form of the question are
6 reserved until the time of trial.
ROBERT E. ALBER'I1Nl, M.D., called as a
8 witncss, being duly sworn, testified as follows:
Y FAAMINA11ON
1 I6 BY SIR LAPPAS:
ii Q Dr. Albertini, as you know, my name is Spero
12 Lappas, and the reason we're gathered here today is for you
13 to give us a deposition in the case of Wenrich versus
14 1-lighmark, Incorporated, a lawsuit filed by Dr. Wenrich, who
15 is seated to my right, in the Court of Common Pleas of
16 C, urberland County.
I ,' }'pu're here represented by counsel.
I; Mr. O'Brien, and I'm sure he's t;cen very thorough to
j 10 e.cplainine the procedure m you. You may knew it from
other cans.
12! But just let me say a couple of Chines
22 preliminarily, the most important of which is that if at
11 any time during the deposition you want to take a break for
24 any reasom including to consult with counsel or for any
25 other reason, simply tell us that and we will accouvuodate
Page 4
If you do want to consult with your anurney,
' 3 ':nu ;Nn either do it at the dL•po5itiun table.: r .,:d it giee
n 'a nricalr, place and su(ficien; time to :}.t sn i
eu L`u+e _ive;; dLllositionc in 1) 11 ¢: 1:a:a. I
Not related to Hiehniark.
CI Nledxai aZLSCO
I % .\ Yeah, yeah.
ID Q Well, yea understand then, and Ic: in;
1 empha;i::r for the mcorit. you am under omll. You're
"' to answer the questions truthfully aril to the best
13 .:f }nur'!cra;wkdge
If i: am: ti' e dming the depo n r L.
caiccc loudly rcuzh Cr c!c::ily ee tozli, i m no[ akiuc
:II': sB1i ?n ,^^nC'.. ,aapiy N:! ITC 1!N: ?)Jr':I:'S :r r, an:
I
r
r.y ,. ?;r„ ,iA :.err, a ?rceFr: ? .. .._..
Susan M. Simon. Rcportc
Robert E. Albertini, M.D. Condenselt! " December 6, 2001
Page
I Dr. W'enrich's complaint, is that correct?
2 A Yes.
3 Q How long had you been a member of the Mcdical
4 Review Conunittee as of May 4, 1999?
5 A I'm going to be guessing now, because 1
6 obviously have not gone hack and consulted any records. 1
7 think I was appointed in 1988 or thereabouts.
8 Q And do you remember how you were appointed?
9 A Not specifically. The only thing I can tell
10 you is that there was an electoral process for becoming
I I what was called a corporate member.
12 Q Right.
13 A And again, recollection is that back in the
Id early to mid eighties, I was elected from my region to he a
15 corporate member. You're elected by the physicians,
In participating physicians in your region of your state. :\!
17 least, that's the way it was done at that time.
I8 Q Are you still a corporate mcrlhcr?
19 A 1 assume 1 ant, yes,
20 Q No one has told you that you're not?
21 A No one had told me that I'm not. Ti,erc w.i.,
22 reorganization that occurred a fete years ago where v, i!h the
23 Highmark merger, a number -- the number of corporate
24 members was reduced for both lay and provider side.
25 But the committee members were chnsen fr.:r.
Pti2 ..
1 corporate members back at that time in the eighties.
Q Did you become a corporate member at about !!ii:
3 same time that you became a number of the Medical P.r•.!ro:
4 Contmit!ee!
5 A No, I was a cor-,urate molnbcr he brc that.
a can't tell you how many years, but fu: a few )cars anyttay
Q Your recollection is, in order to be a
8 corporate member, you had to be elcc:e.i by thi, nrc::aer: c:
9 your region of the commonwealth?
10 A Um-hum.
I Q What were, as you understood it, the duties of
12 a corporate member?
3 A I think basically to sort of be witna?s to the
4 process of the running of the urgxitzat,on. at...,, ? . i
5 the annual meeting plc !:card p scn, tiim: T ;
6 pretty much the role And to wrre on contmiuees. I:
7 as4xd.
3 Q Did you tow cri things that dealt witii thr rt:nr.i-.c •t d:' contra::v ,.w
v i dlin!c tlxr.: war: - tix:; a k. 'I'[, ;
,. rtam Ihines. I kn v. Wr_., !t t Ant.' L19„•. r, t')
rsucs around Ott: ntergzr - ?ch i; ::e Crr.,.,
ales.
?o l think L'x ceruara6: reem`ec: t'::? cot.: en
certain things. Much r.' r .; you know, ,On o i
Susan M. Simon, Reporter-Notary Public
Page 7
1 the financial report, accepting the report. Change of the
2 bylaws would have to be voted on, yes.
3 Q Were there any advantages to you as it Highmark
4 provider to be a member, a corporate member?
5 A I think -- you know, the reason I did it was
6 really more of a service issue, to represent the physicians
7 in my area, to know what was going on with one of our major
8 payers at that time.
9 Q Right. Were you compensated for this in any
10 way? For being a corporate member, I mean.
I I A I was not personally compensated at all. I'm
12 1111 employed phy:;ician for a large group practice. So where
13 1 spend my day doesn't make -- any compensation that 1
114 would receive in terns of a stipend here would go back to
15 my company.
(6 Q Who is your employer
I-, ,\ Gcisinger I-leatth System.
18 (2 1 should have asked you this al the
! l9 hcginning. Wlmt is the nature of your practice'.' What
' 'o ipccndry do you practice
A I'm a Pulmonary internal medicine sp.cialisi
2 as a clinician. I, in also for the last -- I've been
123 involved administratively for the last eight to ten years
i 24 Q llte Gcisinger organization'
1_? .\ Yeah.
Page 8
1 Q In whet --
2 : , number of roles. I was Chairm:m of Medicin.
Ftr -- I was Vic: C'hsirman of i•dedicinc. 1 ran the
re<idatcy prn_?.ull it I tell ye.r:+. 1 ra 1 :F::: pulmon.r),
.- dcnar(raer.; ro::h!•.o:a t,-,n year..
F 1 can giv: you my tahclc ; ,. d yo:: uaut ,o
!;a.:!: to the hcginning. I started cut as -- I •a-es Director
.. A'tiPJ Dgtartmem of Pulntona:}, :`ded!<iua for abou! ;%:a
t? cars. Was; Vice t'hairman of Medicine I don'! kcuw.
! --n sls. ;c%er. ` ear.i hxn 1 bdc:unc C'nainnan or'
! I Mridicinc to '92.
Ir. '95.1 think it 1 hccm::c P:a senior
..? Vic, Pic,:tknt ,1 Mccbcat Afluiri Ir I'lice mcdliai 2enwr•
::-i,'. hosome d:: Senl,w Vic,- 11ro:;idmn for ?.I-ll:cal'
paCerG
_. 1 ,n:: -1:6
Robert E. Albertini, M.D. Condenselt! n' December 6, 2001
Page 9
I compensation given to the corporate members by Highmark,
2 you wouldn't have gotten it? It would have gone to
3 Gcisinger?
4 A Right.
5 Q Now, I think you told us, you don't remember,
6 either don't remember or do not know how you were selectee!
7 to become a member of the medical review unit, is that
8 accur.ae?
9 .4 Yeah, I can't tell you if I was called or
le letters written or what have you. 1 just don't rrenerl
I I Q What did you understand your duties to be its a
12 member of the Medical Review Committee'!
13 A To hear disputes between providers and at that
14 time Blue Shield, later Highmark, and to vote on resolution
15 of the disputes.
16 Q What kind of disputes did you tmdcr.,tand v;.,..Id
17 come within your jurisdiction?
18 A Disputes regarding pohcy that was in place
19 versus practice. Policy that -- Blue Shield's policies
20 concerning the provider-Blue Shield relationship and di,
21 practice of the physician, and Unit' understanding ot'the
22 practice, and whether that was consistent with current
23 policy or not.
24 We were not a policy making body. That %%.F
25 the key thing. It was understood that we were there :o
Page 11
1 pros ide that care, Those kind of issues.
2 Judging the specific quality of care, we
3 specifically didn't do that. Often the issue of medical
4 necessity was referred to, you know, a consultant to the --
5 independent provider consultant would sometimes make those
6 iudgments as to whether the care provided was medically
7 necessary or not.
v Q Those issues, the ones you've just described,
9 seem to me to relate to questions of whether certain hills
10 should be paid. A question, for example, of whether a
i 1 certain kind of care was medically necessary would come
12 hcfore you for you to decide whether an issue should he
13 paid for really, right?
14 A Yes. Much of it had to do with whether the
15 Dill was appropriate, for appropriate services, and within
_cidelinea as -recet to by i.I! provit!ers. B!tte Shte!d
?ui.!dutec in terms of how they submit their inforniation.
it- i 5 what they submit, et cacra.
19 Q It's about almost two years since -- over two
I _o agars since the ?,ledicdl Rav iew C'oumiittee meeting of A1, 4. %
1999, Do you have any independent recotl.ctlon of that --
?" No.
23,
Q -- meeting'
124 A No. i tried to think shout it.
]5 Q I-LI%,, jro!t had the oppnrnmily :o uric" anc
ra.. If
I basically judge the merits of presentations otgaroLlig _
2 wthellier providers had adhered to egret:! upon policy or',io'.
3 Q Okay. Well, for example, Dr Wcnrich's case
4 as it ttas filed in the Court of C'o:,moll Pleas on_ina!l}.
5 then presented to the Nledics.l I+.ecie,•: Cmru,•aoce• %.:!+ a c:w:
6 in which he claimed that the Higltm.;erk Caporation ha,!
7 defamed him.
8 MS. Di(-6[RNA'N Objiet to, form
9 BY MR. LAPPAS:
10 Q Did you ever ha, :e, as a member of tall ?ledl:-+i
I i Review Committee for Iliglimark, did you veer have ::
12 defamation case come before you Irior to Dc
13 arse?
14 A I can't b.oncsdy tell ;:nc :f 1 r: ncir,i's
15 Q O!:ay. ";n'dld it he (:.ill >ay Ct:?: I'i•
16 maiority of cases tna, et.n,e Ialorc :Lc t.lt h - Ae. ter.
Ii Conol dealt either with w :ac"
S f inaneia! :;.;:,,a hat c.e[^. tic i,r ti'le" ::nJ
tiunl, .iur.ht} of .-..J pr.,
20 ilre1chm2 i'_ It 9:xl Inol.,
21 late i ?...,_. .tali? tie::! wtti; •.c?. L.. ?....
22 medwllly nexss:, j that aa, pn - i_,!
23 appropr!aVy, i.e , werc'I right dc. tea'
'-4 Was there bundling, cnht,r.dling, t::_t ;ort
2.i is prac!tc.s tut: acct., too .is tt n i,4r d,:: :1,
Susan M. Simon, Reporter-Notary Public
i L: coiov;ls or -- I,:r example. we It,, -c u:utu'ce noil: '1•,11
r:rr'ing that 'Acre pr•,; ided to u: I(:lie' o:, bad iltc
:,i,, annoy to roc iew ally M that?
.. ! dAn'1 I ck at it srecifirnh', .'•m,mc•.
,. ..mn I,r•rfe:1 ire ,,. ?. Ire :h:r..::? I?.nn .,.e ¢'.Itune', ,
n e^.'.i cluu_e n: tall, !011111: h!ec ),,e: 13" ati.:;coon
I !^.'x lint s::male .it duwu an,1 :cud tlan•.td; Ox min'*.,tc,,
mr;<
yoar cicpo,i'inn ::-Jr.. ^ it
5 , J%ol.)rbton in Au:e;; or n Dr. No, idiam Daihe. i:o you
h;::: -
to nni,cr p1 t!S Di: di!;! 211; s'A
,., ,liar
N.'e 12
Robert E. Albertini, M.D. Condensclt! 1T December 6, 2001
Page 13
1 did not -- referring to Dr. Wenrich's case -- this did not
2 involve defamation, It involved quality of care.
3 Mien later on he goes on to say that he
4 believes the committee members were not really concerned
5 with defamation.
6 Would you agree with that testimony?
7 A I would say that the conunittere would not have
8 as their purview to address the defamation issue. 1 think
9 that's something outside of the purview of our committee.
10 Q When you say purview, do you mean like
I I jurisdiction of your committee?
12 A Yeah, of what we would ordinarily consider in
13 terms of these disputes. We wouldn't make a decision was
14 it defamation or wasn't it defamation. My recollection is
15 that's not something we would ordinarily do. I can't
16 remember the exact instanx of this case.
17 We would deal with wh-file. tl.e prnvidcr v.a
IS consistent in their practices with the nlles and
19 rc_etdations of the Blue Shield contract.
20 Q You were the chairman of this committer: on play
21 4th of 1999, as 1 understand it?
22 A (Nods head up and down.)
23 Q Are you still the chairman?
24 A Yes, I ant.
25 Q Is there more than one Medical Review
Page 15
I a Dr, Gromhurg, Moment Greenburg.
2 Do you have any recollection ns to why he
3 abstained from this vote?
4 A I have no idea. Pmple often absmiu if they
5 happen to be in the local arise, they happen to know the
6 provider, they will abstain. But 1 can't tell you what the
rationale was there.
8 Q One of the things that was at issue in
e Dr. Wenrich's cluing was his contention that the Ifighmark
10 Corporation had sent letters to his patients and that these
1 levers essentially slandered him, were dcfauwtary of his
! 12 pmfcssional character.
3 xls. Bic9<PMIAF: Objection to form.
14 By %Ill LAPPAS:
;5 Q Do you revlc nber discussing that aspect of his
1. _. , at all among the mevlbas was Medical Review Com: l:lllc`
:\ ' don't hues any inacpondem recollccion ct
5 !eat, and if there's nothing in the minutes about it. I
19 :lcttlda't. you know...
20 Q But as 1 described it to you, and based upon
!21 `.% flat you've testilled to here today. based upon the
22 icstiuumy that yudvc given here so far. 1 understand you
23 to he saying that that kind of case is really not something
slat Nall would consider to be within the, as you used the
_: ?vr•r;1, pnrvicw of the Medical Review Commince.
14 ?.
I C, n owivc for the enrporuliec. m is Ihe:'e only Onv"
A lust me
Q )':,u'`::• call dlainaan not: 6'r :oinc hive ;a
4 excess of two ve;rrs. Ahoul hovs lane ahogedlcr'!
5 A I'm guessing again. Prolclllly nhou! a }car
6 before this. I may have been. I think :ground To ur
I duct know if anvhod% chic r; aware of it.
S Q Tha''> (ism \'nu :`.ere - did vot, rece4c mg
9 sort of training or instruction as to hove the: Medical
10 Review Committee was supposed to operale whet yn:l llt.-I .:
I I chairman?
12 A Yeah, we were -- I can't mlizlober the en::c! --
13 when we bring nee number, nn, we do sort of cdaa[n_ tl:c•::..::
14 o; b;u their respoasibili6c; Inc! rile i;. basically the
15 epernion of the coirmince. Sn I'm -Ire I «<r; <h; c.:::!l,r.
16 hack
Q '.Vllen you tecPmc ? m<ull•.r'
15 A VIll;:n I becaaw a :n.'!clhC: Then !
. clolnnan L.. a nnu llcr ct : zro
20 Sa 1 wer:ted v. ill Dob y; rd wl11 : he :I:nirr.l-I.1 ,.. .
21 time, am! sus t of ;::u 4:1 u'ra thR: a! Coos.
!, n, vdl:p:•. I.:,;; ale prcced::rc
.. t i i dnC I kern, if thi; r. v.-:ux;hing vru r,.:•::.` r
!4 r roe, tut tl•._ tmnute InJ:.;ac hat 0,crc •.ves owe
.5 absicn[Wrl am,:og Iti:. n,".,, tmal members old . r.a::r, r.
Susan N1. Simon, Reporter-Notary Publir,
Pago 15
1 :\:r 1 correct in that?
111e C10,11nation isle, tllv.t would he m}
,1:-,.ler!anding. vile issue of whe[hcr someone should be paid
or not Iilr a particular cervix, did they feUu'.v all [!:c
5 "'I". what leer: you. that we would. %ou kllmv. rile on
I h tl;aa!!`r.
Q I'm gaing to slow you a documcnl :ha: hccamc
:.eh;br a[ U'l DliLvr'> drpotition Ir %a,; plalllu: '
F.xhlhu 5 ::I that toms. It's an excerpt front the Rerle•.c
Committee guidelines for Pennsylvania Blue. Shield the: was
! 1 con:n tow dutins! this huption.
1 . You don't have to read that dtrocgh. vrla:
.. •,.un ul. 1r., eoio:; to ask th:.t you look u [ha; and
a i.til :re if torsi exh!ba -- it your undrrtondirc of
.: •.:::dt of lire 2•L:dlcal '....::w Comm:[::e :':! ?:< :!'_I!ies Id
"!:,; that exhibit nets ou.
?...:l eft.
I
l _.., ,a. r.:
tjlt I :.t.
Robert E. Albertini, M.D. Condensclt! rt December
Page 17
1 Q That's consistent with what you thought your
2 duty was as a member of the Medical Review Committee, is
3 that accurate?
4 A Yn. I've seen this document before. Not
5 reviewed it recently, but...
6 Q Did anyone ever suggest to you that them was
7 any conflict of interest with respect to you scrv ice as u
8 ui=ba of the Medical Review Committee simultaneously with
9 being a corporate member of Blue Shield or Highmark?
10 A No.
11 Q Now, since Dr. Wenrich's hearing in May of
12 1999, do you remember any other cases being presented to
13 you which dealt with issues of defamation, slander, or
14 Iibc1l
15 A Not that I can mail specifically.
16 Q Have you ever heard -- during your ten years.
R have YOU ever been called upon to deride any personal
IS tylury case;, for example, a prodder gets irjured smnchow.
19 gets aw over by a Highrnork car, m something like that:'
20 Have you ever had a case like that'?
21 A Not that I can recall, no.
22 Q Can you ==her any cases, other than this
23 one, in which de claim was for something other than
24 payment of bills or payment of monies that a provider
25 claimed he was owed as a result of medical services that ire
('a ^. 18
I billed for'?
2 A Sometimes there are muhiple issues that
3 providers mcry want to bring in, and some occasion: !!11
4 providers coma: in -- most of the cases revolve around! n
5 claim by Bole Shield for reimburs iiwat of doflars poid Zia
6 services that were felt to be either misutilization,
7 ovcrutilization, not medically necessary, that sort of
:; thing And the provider is givco the opportunity to
9 .:heel Lange that, ether in writing or to come before the
In committee, v hichaver they so with. Scone core in, seer
I I provide written materials, and the committee then decide.;
12 on those issues.
13 Occasionally, providers will come in because
14 they heel they should he paid for sontethin_ that thcy'rc
15 not baag p,iid for. It's not th it there'± been -- w here
16 Ihev'vc been diked for money, f;;cS They simply acat'.
17 getting paid for something, and tcev think they ahotd,i
IS They come ut to to to ma!:c a .use for that.
19 Often tho3d: cnu5., ?ce t,stWily can't dcCt.lc
2u becucsc it's a puhcv iS;::c 11' we Ibc! that Blue
21 is :chiding by policy, rhr pcli 7 dcn_nnin:u ion in rcrr :d
22 cd;tar's ecxcrod and not e.,:ered is recall) .+ ^d_dieal
Kcvr.'a
.:, iarr.:natct dccutnn, tint tM'.6ca1
n ay thank you for ?. n!,ne- but we cant dedidc t. .---
Susan M. Simon, Reporter-Notary Public
Page 19
1 Sometimes people will come in with issues,
2 either because they have come in to challenge a
3 reimbursement request, and will bring in tangential issues.
4 Q Tangential issues relating to --
5 A Often getting the policy -- we think you
6 should cover this, or we don't think you should be, you
7 know, doing --
8 Q Different kinds of medical services, you mean?
9 A Yeah, they want the policy changed, rather
I(, than challenging whether the policy is being interpreted
I1 correctly. Those we -- often we end up deferring on those
12 issues, because again we don't decide policy. We basically
13 interpret policy, if you will, and compliance with policy.
14 That's always been kind of my -- I try to tell
15 people that when they come in too, so they don't feel like
!6 we're trying to blow them off or anything. W'e're just
17 dea.!in_e with what our charge is.
;8 MP. LAPPAS: Let's take a five minute break.
19 (Recess taken from 10:07 a. nt. until
.D 10:03 a.m.)
21 %IR. LAPPAS: 1 have another 25 minutes' worth
22 of questions, but I decided to stop now. Thank you very
23 much for coming.
24 p1,. DICI':5RMAN, Doctor, I just have a couple
25 quest ions for you.
20
1 cv NIsis DIC: RCRNIAN.
t. t'ou testil'icd earlier that you w+:n a
:.orpority member of Highmark at the tittle of the Medical
Cc,.;C,v Committee. is that correct?
s That's my recollection, yeah.
6 n Was the fact that you were a corporate member,
7 did titai influence at MI your dsision on the Medical
c !:;.•: n k, C'etnnr.tt::c with regard to Dr Wenrich's ca,c?
s A In no way. I received no co:npcnsa:for, for
It7 heiiw a corporate member.
I t i Was your decision in this case in any tray
m!lueov:ed -- 1cr Tile ask you this first.
I_
13 Were you ret:nhurscdl a: all for :rave;
:, err-ur en:ens to cd?trx to a;a lledicai
,! \ ?fy c:R;m:Zafio;t tha I •,%or!xd
7 :Tie:pens •'.e,! ft,r my' nilleacee, and InC:1• i+ a stipend itlr
;orc
DID 1:r.R?ta? fuse, j, L!
a'. -0:I h J0 t
J. -
21
COMMONWEALTH OF PENNSYLVANIA )
SS
COUNTY OF DAUPHIN )
I, Susan M. Simon, do hereby certify that before
me, a Notary Public in and for the County and Commonwealth
aforesaid, duly commissioned and qualified, personally appeared
ROBERT E. ALBERTINI, M.D.
who was then by me first duly cautioned and (sworn, affirmed) to
testify the truth, the whole truth and nothing but tae truth in
the taking of (his, her) oral deposition in the cause aforesaid:
that the testimony given as above set forth was reduced to
stenotype by me in the presence of said witness and afterwards
transcribed by me or under my direction.
I do further certify that said deposition was
taken at the time and place in the foregoing capticn specified.
I do further certif% that I am not a atir
counsel or attorney for eituei party, nor am I other:,:ise
interested in the event of this action.
IN WITNESS WHEREOF, I have hereunto set my ian.l
this 15th day of December, 20'1.
f Susan M. Simon
k '
The foregong
any reproduct' on of the same grir a o !L _
dire^t`con.t:ro1 and ,or st_perv.:i.?: L L, t; _ -
DAIBER, WILLIAM
08/22/01
WENRICH VS
HIGHMARK
1 ?
2 COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
3
LESLIE WENRICH, D.C. III
4 PLAINTIFF
5 VS NO. 99-4000
6 HIGHMAP.K, INC., D; Bi A
PENNS'i LVANIP. BLUE SHIELD, j
7 DEFENDANT
8
9 DEPOSITION OF: WILLIAM K. D.'vI SER, C.J.
10 TAKEN BY: PLAINTIFF
11 BEFORE: VIRGINIA LORIA, RPR
NOTARY FJBLIC
12 ?
DATE: P.UGUST 22, 20^.', 1::30 A.61.
13
PLACE: LAW OFFICE OF SPERO LAPPAS
i
14 205 STATE STREET
HAP.RI SBU:. i•E_iiic YL'v F; Di ?,.
15
APPEARANCES:
16
LAW OFFICE OF SPERO T. LAPPAS i
17 BY: SPERO T. LA.PPAS, ESQUIRE
18 FOR - PLAINTIFF
19 CHRISTIE, PASAR?'E, XORTENSEN, YOUNG
BY: MICHAEL S. BGP.iiS, ESQU:R3
2 ,0
FOR C _N?-7L
21
..'3RiE2i c?R is .._3E
24 AL9,- PF C...E?i i
LESLIE :. E:161Cif, ,?
2 5 '?
GEIGER & LORIA REPO 800-222-4577
DAIBER, WILLIAM
08/22/01
1 FABLE OF COJNrFS 1,
IAESS
1
FOR PL ANTirF DIRECT cRO9s R.M11 , I lit 01101,,
a
William K. Clalbe, DO
B, Mr [.APIA. 5
11. M, 6un.. II
G
2
9 PRODI Z-Fit
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:f
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\lay a.:m99
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I'
la
19
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9 raltem.:y Di I1.t.tt is la, i --LI:-•I1; It
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j '
WENRICH VS
HIGHMARK
a
a4'ecalllc In III liceed unh tn.LNs dnpnallon In 11pfe er ant
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? e d.... re. I."", III lbu u,, lhal Air bled to nail do:ke:
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Lnl.eu, 10 Pout e1• vlcd tho 1lnhaal All IC11 iununlner
.I AICn:P_I,Il"Ii':to,0nuyn llonnrrlultt for 1.114( particyatlolt.
lit lo .nd,a,e 111111 the dISCIV iltb I'll hadnrf
1 ! 1 'J t, IIo, h t men/ hau heJll 1'c.licted a that ail of
I n.dl mi 1ni„gun alatne W other mcn.hm> of the
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DAIBER, WILLIAM
08/22/01
a
1 Q Sir. tc; pld you tell os your 1it!I name.
2 please. 2
3 A William Karl Dalber, U.U. 3
4 Q Daiho-r? s
5 A Yes. 5
6 Q And you are a Docmr of Osteopathy' licensed to 5
7 practice in the Commonwealth of Pennsylvania?
8 A Yes. e
9 Q You have your principal plax of business at 9
10 L.cndard ery Road, is that correct? Ib
II A Yes. ;
12 Q You practice a specialty of urolou'i . is dl, I 12
13 correct? 13
la A Correct. I !a
IS Q 11011' atig ha\c yaw bacu a Lderst.'• DocIC 01 .
16, Ost mpa' ll" a l!:a COllnmoln`/eallh of pcnl13`:I1'.Inla' to
1? A Since 1973. i-
!6 Q For that elnue pe;;rl t,ftim. hava yoit Id
!5 practical in the Dauphin Couar. areas U
20 A .Nn. 1 20
21 Q Where did you work before that..' ] I
22 A From 1973 to 1932 1 worked in the emergenc,. .<
23 room at Osteopathic Hospital. 23
27 Q Harrisburg? 24
25 A In Harrisburg. j 33
I
n
I
3
9
10
II
12
13
la
Ii
Is
17
IS
Pa
.I
22
23
1
Q Comrnucty Gencn!:'
A 1 ei. From 1973 to 19111 aka worked 'at Pr¢nno
Il.spl:J. Fan 5trcudsburg, P amisylvania in the amen gcnc;.
room. from 199: to I9Sb, 1 did my re 51 d ea cy' iu urology at
Alicutuwn Osteopathic Hospital. And front 19361a presuai. I
have hecn at nq' current addn:u.
0 As I'm Arc your coursei has e"laured to
yn.:.. nrd I'm 51 :e.11" , trams .. die purpose for yon: !'cirg
asked::: be F.ere lnd?: 15 in. the a Jcpnsitica in a cacc
IilaJ by .ry client. Dr. Leslie R'ar.r¢h, againet:he High.nx*,
Crupora:iar,.
It icicles to is:ucs w'hidt Mr. O'Brien
'tpiircd n u' 't tar:" ego, brt'.n general lern.s. c : ar-
going' a ca is c!aim owl Dr \1 enrc`t made •t hic'"'.cz
heard h; 1h•: )Iedl:al Fr: i. • : •.rr,,ae! :1m!;a 1`.ar=.:Lc
purp.:.e ufne i:p,du._.
ha: ar.y rn:c 11::iI3 ci: :;-:se:rtp^
i:n cd. ycca-r,, and .rc:c of try q'rsuocs
:caasa you 3cni under5land ha ?r scrsa o,l old: he,,::
.'to.a .s as e re; sera n a; anal : ? aY `, ..
If ou'vnt to a .r.:t a
Mr. D'c •Lhl :aor J'Ja:11--l l -n_
WENRICH VS
HIGHMARK
simply need to tell us that that's what you want to do and
yen can either talk to hint at the table or we will give you
a private place and a sufficient time to have whatever
conferences you need to have.
MR. LAPPAS: Do you also want him to read and
sin"
MR. O'BRI EN'. Yes.
BY NIR. LAPPAS:
Q You will be given the opportunity after the
transcript is prepared to read and sign it and to correct
any errors which you believe are the result of is ahv
transcn olion, but the rules do not allow you to change the
substance of your answers from no to yes or to change your
tern many.
Sc it's importart that;ou undersLrd:he
yLd:.I L:N thY I ash: Inda V and to am,, Cr Ih-rn :O die b- a ,out abiilly.
i!eee you testified before caller at deposition
cr la
A Once before in a deposition -- I think trice.
Q Was that a medical matter?
A It was a medical matter, yes.
Q It's our understanding that at the time of Dr.
'A'eurcn hearing. you were a member of Inc Medical Rmvicw
C.ia9TIINCC of Highmark Corporation. is that correco
6
9
A That's enrren, yes.
Q Hu `v ,Pd•.nu hecoma a ,vmber.f the blcdmY
::r: is •.. '...
I win np f,hl ed to the Alcd!cat R:. I,-,
Cnnnr•.ittee.I don't "acthe remember when. 1 bdlclt 1 have
been a alcn:ber for at least ten ,eats but I Just d!dn't hcep
track ofye.m
Q ran`: e:.r: as of ta,!ay^
A At least ten years, }'6n' as Indar, right.
Q You feel You are appcimed!o the ..,,mite
n. . 'u'h:rc urm:nd 199!?
A Yes, 19911, 1991, 1 belle' e.
?• The meeti:, i., It is ease -- :he hl a; !ea:
fa'. Co err m41.5. ?. ?, .La. .....,
,d bear. .emh?r i.r %;t eiah. lac:;
b,ti
A I I Ion'I,
GEIGER x LORIA REPGRr!Nc3 SERVICE - ; -800-222.4`,7
DAIBER, WILLIAM WENRICH VS
08/22/01 HIGHMARK
12
1 d
question. A Yes.
_ BY!\IR. LAPPAS: 3 (j N9tal Jnes Ihu mean exacdy^
3 Q Were you notilinl that any utdvidil 11 or 1 •\ ,%1: that mean, Is we attend one meeting a
1 agency desimd you to he a member of the \L•.L:ni ltes;ca 1 4 year, llolalp III April, where the Hlghmark executives tell
i Committee? 5 as what they have done slid whet they Intend to do.
h MR. BURNS. Objection a the loin ,I :hv h t)\ry there arty cotes taken by the professional
7 question 1•au cm ana.er t x rrnonN."
g A I Imne\lly don't remennher. 11,01 e I A It I here are cotes taken, yes, hill not only
9 received a letter -- I can't realemhrr 11 1 rrcrl, ed u phone ') pl ofe,dmsal, hat the lay members as welt 1
10 call, followed by a letter it Iv hell ri 1 lull I I, ch rd a In I \\'hr•l you said the I l:ghmark executives tell you
11 letter. IN been sr, long that 1 don't I clnrudrer. I „hil Iley want to to mhd then votes are taken. does that !
12 BY >IN. L.\PI',\5: 1: mien mar the l6µhmvk executives make proposals which are I
13 Q Do ym,laxa lily lf[Uf(CIa, l n:.'p. un.l? II 11.rq,nlci un by dA prufesslollal members ofthe
I •
- A 1',1, \ f bI rv19. it uI Ille pro f.is!a a al me mb-, rs and Ihu
to n -. or: ,,. .a... Ire . la, mrnlb rr, come hr••nl all -l, he state.0frnnrse, the
17 Im rc,on to l•..:..,,,:arm. d..:, ?^ a!• L „ ?,? ,: I' Illghlnark peuple Jesclop therr policies and lie are usually
II b ;•ICx n 'l I •n I 'a i i enl r lulls. front the pleaiou meeting In advance. as well
l
19 Int y,ull(:r 1 u::I i
m lily rear 1, slatemynt. I b iye thu laSl)early
1111 hlV.n .I J.; e•nI o' •: •" :'I ,atrmvut•.And ,vhlch we i before the meeting -- and
but you can ar"l, 1 ; I Ihen Ihev go mer nett policies, new products, that type of
22 A It "a, ,ill 2: 1111"U.
E3 BY MR.l P u! Then the members of como:alion vote on them.' '.
_J Q No., n[IC ,mntrd I A \\ell, mist of dlu time, most of lhr votes are
11 25 A In,11'.]In 1, a'1"1 sr, :, tak rn In :I reps mill ins of ermnliIIM or conlirt re ports.
1
2
a
h
7
n
111
1i
I:
1!
I
u
In
1
U ... I ?..I . l.,,... ,..
a \r•.
,ou. .all e•.u ,:,:?: I,u .. :,??, nee .,.,. I. ,t
nhc Ilg9mlv', xlr : ...... n.. ,
,\ vu
\ II IIU•r•, ,n .I llaln., in-,
Ilan h. a ya nlv.ut-„. u,v p.r.,le mrulrer .. nl :LkIII:.a. L.
1 bylu..
u
I call rv::dl that we vote on anything atbstantlve, as Im'
u. the. I,erntion of Iit company.
peal m;on:o::y, that csc
pI,, en-, I ,'e r,1 the cab ?tac:ice meters..
I
_ t! ?. _u•:n',_Ih aCtninislra:ion ,d lh[
.? •sI • Thet's correct.
i o u) 11--, long hz'o Ina bce.t a mclrka:r c: tl:e
I ..!IIIOI a::un '
I I .\ 1 helieve it was sonmwhere around ION.
-^ Clv. 2d
I''i \L. a-.. .u.•, Y:J ,<^
All L
\ 'I'het I out, I lad ihey .. tank it I:ut
.. I•.nt III-' r.;•I'( s:uI o,:Ia tt': IC e,e' fit "r:an 17
i' it Ill,% v% Ill U94.1 in blot a:r.nu:r- of Dm ccrp r:r,:
,,! d?.n'! Sol,;- i' is ,: as ._r. p!n .,.:..
...., .. !dr a, l 1:71 ,.. , l.. :ire p`:,
it i
IM12 ..........urn" p::h ,,. _.
tnls pos;: i;,n.
GEIGER & LORIA REPORTNG SERVICE • 1.300. 22.1 ;7
DAIBER, WILLIAM
08/22/01
14
I And there was an election held in each
district, there were elections held in each district. And
3 based on those elections, the winner of those elections then
4 were on Highmark's professional corporate member. And
5 that's how i became that. i think there were two
6 elections .. or three -- I think It "as for a two-year
7 term. And I either did that hrfce or three limes unt Ihc_r
3 changed the procedure.
9 Q Did you say there Here two member. for eve,'
IIt district?
I I A That i can't tell you. I believe there srere
12 two.
13 Q A certain nuinber'
11 A Yes, there was a particular number. I don't
I5 knnr. If it w' as through the population or...
16 Q Ijla;c a oopy and Itwill show' you a copyU
I- the prorcssioral members which I bahcve a cotrcct as
13 of 19,19.. that hiss the H, trisharrr meirkbers in addaioa m
19 you as, Kicha.d Para, a pediahicml:. -3;e` V-1 Flcrce.. a
20 pisstic surgeon. Thamas Rhoner, another uroWgts: in
21 Hershey. As of today we are rot certain haw many people eon
22 elected, but you were invited tenor for election, there ,as
23 a petition process and then there tsas all election.'
23 A Correct.
25 MR. O'BRIEN: Object to the 101 on of the
WENRICH VS
HIGHMARK
16
I Q You don't know ane way or the uthera
_ A N., l don'I know.
3 Q No one ecer told you thu"
4 A No.
5 Q When) ou say that your motivation in becoming
6 rn,ohtd m various projects is as a result ufvour desire
:o pt sect physicians. What do you mean by thuC
c A I mean in many Instances people are reviewing
n medical documents, charts and so forth, I work for He'vPi
10 the people reviewing them. are not the appropriate people ro
I I be reviewing them. And therefore I wanted to make sure thut
12 In any instance of a physician being asked to do something
13 or be investigated for something, that they were has ing the
I. appropriate people look at these documents or whatever
_ evidence was mere In try and make sore that in appropriate
decision was made.
Q I can Vmdet,m.d nee: tbm would Mille :0
becnmir.c a mcrobe: of the Mebcal Reviov Commiuce. hill 11ril
I v r ,p;d m Feceirme; a olembar of the corporation. hoc did ycu
20 feel that by becoming a member of the corporation you were
i. l in a poiition to protect other physicians^.
_2 .A dly initial interest was to rind out hors'
23 insurance companies- to see if I could get Insight into
04 how insurance companies functioned.
25 Q As a member ofthe Medical Review Commuee.
17
15 ?
a:<IS:re aceainr,rr.!...%of do ..'s pen vcarthot ynll inter'
I yuesdun't s i'hr. r are four sCited ivied meetings a year.
A Cer rt•e6 _
.rd nn c: cb . r.; 11osc:.ays via you :nsumas
3 BY i1 R. LA1'I'A3: -
4 Q when you d, 1.. as Cat '.t ,
b
f A As far as appearances are concerned. there can
5 1
:r O
percei':e there to be any advantage :0 becinunt a 11,lo
w'e
tinns
d
some
a 7e- we hale had no appearances sometimes an
ti de cciporauun^.
I beemmo ins'ulved In. 1
uns'lhin
llr
i
B - lure had as mvay as four and rive appearanees in one it n)'.
7
3 g
.
ai
cn
A
have •.Inne 19 protect ph,'sid:ia ,s. Part of It was done because I Q kppca'arce by tLc Huaantsl
o lack of undcrs:anding of hose insurance companies
of m A By the Iiliganls. correct. However, there are
y .->e+en! cases or many cases maybe handled irl!
loan
10 operated. And I felt this was an opportanll•_. to sec Imly Hue
,
11 of the major h ouren funttimmJ. .. did not request in appear.
Ii
O AIid VOLL ia)Iill$wa?]I,]11n.•1-1" it' Si:n-h by dccuvrcn:a?
•- IZ Y-
13 A No, this was 1988.
14 n 1985. I.M. rrn_
V _ .. 'l.,1 .z.-, r.e J;.:,?•r.:::..
I i l'1:i8.
A YeS. it .yt Ri?W.
-
Dr
.
-
C o;c mca w,be 1211 \d5 "lam^r. ..
.
I.r :.: d .. .- ..a '?::..
13 A For several; can, yes. ? -
lr.t 1r.
21
.2 . nponv:•,'
-
_- \ 'fhntl<an:tel s•,t i.::a' -n ::r e: ifl - - •. - ..
-
21
..
wan'! lose been in.., :d h'r!I l a'•d 4--, a -•en ern' of,
- ... •.. _. _
25 el:'poraticn.
-- --- GEIGER Ea I_URIA REFC4'1I, J SER",i C-E - 1.80G-222- ' '
DAIBER, WILLIAM
08/22/01
WENRICH VS
HIGHMARK
18
I exhibits and a six-page memoiandmn
2 A This, I have not seen this sines, 1999, but
3 this Is type of document that we retell, e, typicalh, before
J the meetings.
5 BY MR. LAPPAS:
6 Q This would have been given to you by an
7 official of the Highmark Carporarion?
S MR. BURNS: Object to the question. You cav
ri answer it.
10 DY AIR LAPPAS,
11 Q Was this doeumeGt given to yI:,u 1,y, jr. official
12 of the Highmark Corporation?
13 MR. BURNS: Same objection. You can answer
14 it.
15 A Is'.uscuully sent tut uto&t Yh. Dubli, twow.
16 BY Mil. LAPP.1i
17 Q Do you know who Mr Dobbs I-.
is A I don't know his--- I can't give mu hr,
19 technical titie.
20 Q Is he somebody that at that time tsar :t c,kiu,,
21 with the Medical Review Committee relative to the dcdstou
22 ofclaims?
23 A Yes.
2+ Q Did yo.a receive tiii; bel'cre the day of rile
25 hearing or did you receive it that day
"
19
I x IJail '( runic mber in e'c: pI rtic,l I r I Zile. ill
men .,l the ti me we "tits them rta: nI., u.,mth i,, .Di vot,
3 thus, to I,,r sods in ad': aaca.
a Q S: that, Zia :,a% cl!e qpn ra: .; t.- ......
3 if) ou dell.. to dr dull
u A 1'es.
7 Q AI ifNa a:h •nc id I!he your it, ribs,, ,.,t
8 you h,du.e f. Pi,,:; i!.I, lartrec'D.
clion •
IJ A Yes.
I I Q wl+a: di: tut w•A;;;w:d L:c n.:ure of to
12 elaun to he'
I; A 1 hate ncl se.n rhea ducommr,'Lit, •1, 1. 1
I: did rend the coopi tiro. I'I,,%, , I ,ndcnum. it i, nu: ur.
IS ,oera!ellhe No, that ,•sre tens oar tbnr e•,..,,
;6 a oiduaa on Iue IIll Ibar sXJ that hr t,a, .t.' brio;
17 u:nm.l r.ar the ...... hecama - 1 Gel'. . It,, a !
Id otafonent."o,tiaodaN er there ,•a. same pr..,e:':19
19 uluipno: ul.
21
-. Pn.
fill
cnU .I C:h .-.. ,. .......n _ ..
20
1 AIR. PVR.NS. Objector..
2 MR. O'BRIFN I'm going to object
3 BY hIR. LAPPAS.
a Q Did you understand !lot that was cur
5 contention?
6 MR. O'BRIES: The olipelon connotes unit 1
7 direct the witness not to ans,er 17:ae question.
s BY MR LAPPAS
it Q What did you undionard to be our contention
10 about by the Mcdmal Revma Commit!" should decide cos
II case in lasor of Dr. Wenrich?
12 MR OTRIEN: I'm gaing to object for this
13 reason: The purpose of the M,dical R, icw Commmce pmce;s
to I, v, a'scs: r,ursuant to cl .. pursu.mt to the bvlaws
. _ L: dl: fai:3th in:a Mile S;lien at that 1:me. A:ix!e 10.
I. •i:ch ul,+es deptoes and coranvnsio livid -.s
pmsmcr.
;i This rteae of o henna it s dcl'arl or to
n v:111 I; au :etc .''.a -.-I Ili or DulivIl S:cauabenilp an
20 the r-vie„co:nmurc- as w ell as his participation in Dr.
21 V: ennalis ivnnas e.;;'suF. the illuu SSield Q:ry+oratian.
22 \IR. LAPPAS- Huw can eau sav Iharr Our emire
23 claim That was brought m tim Medical Rwie'.t' Commntce was
=a drat fbg:^.nnark ha! delumcd Dc Wenrich Now i think I havt a
25 r„thnn ask ham Pre und<rtmoddtenaaare it tile ziont.
• I
MR CYKU-N The n:.Rue or the a.Ltim is
_ Itt'dby lhe',•I a•t S. l'hey wa: norm a po;moc lc
;urr,'.:, 3r::rir.::.:._?.....n 'I%:11 _r at ra D:'. A c.:r : , ...
- m a .. of cot u':
IL the nor} t l-1: . l e. u. nw inmc, s a par: •t
o nsn! •r dc:in.uncnn. ki". d,d•; de rtvmr, liar Inj
,. IT
9r: - the 11":ttor-'!h'r. yoo p.;[ stied is ircwre::
.. . Aral, : a act, 11: Ya:erk.:ras lr':y gra!ilirl :t.!ce:ac
I 1 : : c: s: s ht".tarn t`.? eu: i :h sod H+ghnork. u:actutc
.I,.
1.... "l: arc. a.. :.r -
GEIGER & LORiA REF10 -i IN("i t ERV: ; . 1-300
DAIBER, WILLIAM
08/22/01 WENRICH VS
HIGHMARK
22 24
1 some point in time to be able to ask this witness what his I Q In the document that you have in front ofyou,
2 understanding was of the nature of otsr claim E.+hiblt 2, as I indicated before, the first seven pages is a
3 MR. O'BRIEN: As I indicated. his participation 3 memorandum headed Medical Review Committee, new case. It
4 on the rtview comminee is limited oy lilt bylaws. To the 4 says, provider name, Leslie Weinrich. and it provided some
5 extent that those would provide something Ootsldc of 5 other information When you obtained this document. Exhibit
6 examination of the contract hatv,cen Dr. WenrlcF and whether 6 it, did you know who had prepared this memo, Medical Review
7 his equipment was qualified or unqualified Committee memo'
8 SIR. LAPPAS: I attached to the deftndant's 5 A It's prepared by someone in the office. I'm
9 answer to our petition to vacate, set adlde. mcdi py, and 9 not sure if It's Mr.Dubbsoreneoflhesecreturtesor-
it) reverse the decision by the Medical Review Coma,. ittec a; :G but it's prepared by someone at Hlghmark.
11 Exhibit B and a copy of what I represent to be flit by Ia'.?'s. I I Q Semeta;dy a: liighmzrk"
12 amended November 11, 1999. 12 A Correa.
I? MR. O'BRIEN. Where is that' 13 Q Tcm w page six there. Do )'ou see chat there
17 MR. LAPPAS Ins Fsvmbit B In Hiaiunar,.,'; IJ is a scuon thm begins with the Eual,ng recmnmendalion and
15 answer m our yeti mil lu vaeat:.:\rr;:le 9 dm!S a rL I S t got, an to page ee,en' l
16 review eemmiuees parax`dph w: it,15"ill '.ha Vle?:cal ? n .{ Yes.
F Review Committee,:rti;;e 6, paragraph 6,2 also deals '.vut. ! „ Q Sixth paragmp!t salts, erommtndnaons In these
la the review conlmmitc .,. iagmm.cndafn,icio CgI times aprears the wool delamatlOn. I
i9 (Discussion held aii Ott : c%;c: I .. Ftr ef.traple.:he olSl pa ,g: a;:h says the esue at hand is
20
BY AIR. LAPPAS:
29
one otquahty' of ear: rather than defamation.
21 Q 'noun looking at page 17 e(thc doa:nsn:s l l _, Paragraph zoer.. asks you m find that no
22 have marked as Exhibit 27 dtiamaGon oaunt:i a;arcsuh ol'thcse aelions, ll hen you
23 A Correct. 1 23 reztiveJ IhiS document. did you knoo' who that tern teen/
24 MR. LAPPAS: Just so the rczI:,d is clear. '.'!:. -a defamation'
25 O'Brien, you have It continuing uutuc,ian m the v rtnesS
i 25 A Sure.
27 I
25
I ten to Jo W any 1 _stiun u' of hat' Q II ! r r , or a case before th Medical
2 MR 06121ES: >nmhm nn+c 1F,.,-pe •i 2 %Cu. ., :or to DNS one which Join, \3h
3 \var i:cxa•ained in It' j[ o-,'?: _r.,::; 'f:ia-utim:r; ..
a mcmb•.r of the tame+• refit r'.L:. \ 1v Iir'a, t,,a were concerned, tit iv did n,I --
_ BY MR. LAPPAS. : t his did not iouh a defamation, it hwohed ynility of
6 Q Le: me uk tier t a .-n Chat,i:d m
a:midcr
ave.
7 to be the duties ufactt„:be,wLt:e i•1--6al Re, V. ilea you ;a)ssfar "as we acre
3 Commr:mc? I n:cmcd." whn arc;' v: rotzmng lo:
9 A To re%kw the Informatbn that "z: lira'. id ed or .t •, I vmdd JuS'r:ty the convnlttee member were
I:) us carefulfv and cy and rake a determination t,.,ta •.n I-, not null, conrenud oils defamation.
11 what's enu>Wen'd good medical prart::e or ti,pend: og "I .din ,. Q Why ,s3S tham
13 the Issue Is in the cma that xvcrr prevented to us. . _ A Because ve didn't feel .- 1 mean our lot, is
13 Q Did yea ttl,v 1;h„ •. c'_: an ' ,. to tleclde on medial car:, gaalily of meAleul are lira,':
11 1. JUed J::1 11c3 as 11.1 DU>' Nl -111 '111, r:n:a. .....` ra ,. prodded and are ho, to go it dte in4,ru.idun :hJ:'s
li hcca,:ipro+'.d::s' Pro,;d:d to us.
Iti `.IRIf. :: c:•^'Fe:b^•.: e., 'f he loners rc:lot:cir.:x-rocs.\are oo,sr vn`
ryeslim. bat yr.:' an:l cur type ofthine. sfe has to decide whether the I
12 MR, 0BMI Yc1 n::..-1; r .. e q alp ,it 111 .1, 1,; F, It In:. n to llj he p a' fn r m i a".luau.. i
I9 A \'o.ldidn'rbv:in.e:l r,.:r.ldud d: nn patients and /ilea.Cn•cllsning the yuJli:•niavr. a-•e '
., 31'.•.iR.LA1'P\]. _ .aided ve ht:;,., f' Iwii..? I, D.. I . it:,: 11: .•. '
GEIGER o LCJr•. en 'x:.+ a REFC Jft l-if j'._. SERVICE r - r!
, It •,. 0.1 G• r:;r
DAIBER, WILLIAM
08/22/01 WENRICH VS
HIGHMARK
l
26 I ze
I Olemo, Medical Review Committee dated 514/99 I 1 BY MR. LAPPAS:
2 marked as Plaman Exhibit Number 3.) 2 Q It's entitled Medical Review Comminee
3 BY %Ill. LAPPAS: 3 reimbursement 1999. And a lists ten members, ten
4 Q I'm going to show you a document we will marl: 4 individuals as being members of Medical Review Comminee --
5 as Exhtbn 3 for today's purposes which is headed 5 and unfortunately the fax copies are not all that good--
' b Confidential Medical Review Comminee. Do you recognize this fi but the first column which has your name in it after Rolm
7 document? 7 Albcnini and Daniel IT Brooks, the nest name is yours.
A Yes, 1 believe It's the minutes from tree 9 Will= Daiber and there is an indication of 800 dollars.
9 Medical Review Committee on May 7th of 1999. 9 As I w.certand it. that is something termed
10 Q I want you to just take a moment -- or as 10 an looms, ium that you receised for your service at a namber
1 I long as you need to - sod to read it overt and tell me I I of the \ledical Reviav Comminee. Is that true ?
12 whether it accuruely reflects the events that took placer, 12 .A Yes,
13 that mewing. 13 Q is that B00 dollars per for year or per
I4 (Pauses 1 nmeting°
I' A Although I don't remember spedOcallc this IS :} 'i'hsts prr meeting,
I-) meeting, thk would he I., mcall the w9)' a meeting n,nJ?l 16 MR LAPP.\5'. Next column. -. ss rich is a
I' penal em, I? zero .. 1 has e always taken that to refer to the traccl
19 BY MR. LAPi'A5: I Id e;pcn.c; the ccmnimce members have to attend these
la To the bust o fyoal It-onecnon. llie pa'!; 19 :l;i'e:Ill_i 13 dat )nl,r lin4c%:andmg, NI;:. R'.l:ls.
2U that deal with -- the parts of this memorandum -- that deal '_I) %Q BURNS: Its mu understanding that these
21 with the evcuti m::cerning Ur. Neu: icli s daihn, with rspm I 21 were npemes tha: were incuntd to amend she meeting
22 to those pans, does the exhibit aceluaiely describe the l " UY MR. LAPPAS:
23 events of that meeting?. I 23 Q Since yeu lived in nit Homsbul'g area. you
21 MR. fi BRIF\': 1 bef eve his anssser s.as that lie 24 fdi't incur any expenses --
25 docni t iincilicxily recall this meeting _5 A So,
27
i zy
I A The JeG16, I Q - e.'+al at zero Act It cri the!; is mothr
- \I R. O'ORIE;f: 7lto details If link noe,tinst.
3 B'i p1R. LAPPAS: i ... ir.d"At.1 - thou In ;9")'.
I
- Q SO )Oil drift recd ! I.I: s i,:2 as a
oftt. meeting that deahl ith Dr.%Vcrlchs dami! I„i.a Ecsl C. WAh9lty 11131 acrur-.tr'
b q No. ;i \ This would be for two Ineeflnei. I don't OHL
, Q lbudo rxcll doll. as coozen, •d tic roc::+C:; dhh „wild be for four meetings. j
9 of :hC A4!,a ' nllit.cr.; o.ed lht:. i:., c. ?il Q n: r, 11LIZoi let'.. me.;cl,-'111"4 d. it
9 a q:.af:.. of ca e mw-cr" Io -% ,,! c: ' t >lla-,.
In MR. BURNS' Objection. Asked ant ansrve;o: ? 10 A If i attended all of them.
11 BYNIR LAPPAS: 1! ;' Thais re:ht. )cu nay inn hove Y:ended our r.:
12 Q That is senaethv:g yea rccdli'
A The q-snlin' rt care, s es. It P.,;ht.
it lid Tlhztsh."}rnladd%i:cd ht a'd I!v_s,s:v. .. Q ......_. .?-:.:JhTs.=m liicl.r..a'..
611 ... d. ':efo•ej ..... .. Yes.
It 1 Sei. .. Clair L-'- E",:,--i. t=
, . Lt B It. iZ o.,:c,i:r 1...._ n re::; .1 .; :.l a, .a ,t. I,;, :, e r..
.. ...
. ,.J errs .:I 'l.l ... .. ...
GEIGER & LORI.A REPORiihlli SERVICE - i-800.2'12-4.ifr
DAIBER, WILLIAM
08/22/01
I member afthe Medical Review CaronT
hIR. BURNS: I will object to the font of the
3 question. It you understand the question, you can answer
4 it.
5 BY MR. LAPPAS.
6 Q Did anyone ever tell you that it may bea
7 con0ie of interest it you're a number of the corporation
S and also a member of the Medical Review Committee"
9 A No.
10 MR. BURNS: Same objegion to tout.
I I A No, brat I understand the Implication.
12 BYMR. LAPPAS:
13 Q What do you understood it to be?
14 A Since I was hebig reimbursed for going to the
15 meetings by tlighmark, we on the committee --ur I
In myself-- might tend to vote in their favor and became of
17 that It might influence the vote.
13 Q The vote that you would uke'.
19 A As a memher of the Medical Review Corm.ittee c;.
20 any particular case.
21 Q Thafs one possibdiry But I was really
22 aiming at something a little bit different, Did an)'crc eve:
23 suggest to you that because you were a member of the
24 corporation, you would tend to identify yourself as pan of
25 the Ifighmark Corporation and therefore that could e, ut,,te
WENRICH VS
HIGHMARK
30
32
1 Committee guidelines, Are you familiar with that document^.
A I don't speclOcally remember It.
3 Q I have bmckcad a paragraph there tO ich
a sums that: "The Motors refered to the Review Committees
5 generally concern disputes with respect to averutihzmion
6 andror misunlization ofsereices, quality ofcare. service
7 benefits and usual rharg: problem,"Closequor,
3 Was that your urdcrtandinu_ during your tenure
9 as a member ofthe Medical Review Committee?
16 A Yes.
I i MR. I..APPAS: We have been given a confidential
12 document which all counsel have agreed can be inquired into
13 at this d:pesinon which show's that cambu...ment to Modica
IJ Review Comaoitei's members hormanam for file Modica Rerie•.v
r i Cn;rnr, ttoc pl1,tip3'wn. And it thow's mumhera frum 1994 , m
It, 1999 which h.•:: Lien represented to me to be moneys you have
.7 received from Ilo,'unok in reinsbereenaent for services thsl
13 ycu have pr, idd to pauems.
19 \!@.Bl!R?S: Ifl cuulJ CL•mf}•thn even; d. 1
20 think what it represents in the bosom lefi.lrind side. I
i think n's the tv. 9 ucurt triat was
22 MR. LAPPAS. The 1099.
23 MR. BURRS: The 1099, rich:. I su.old like the
U record to show--
2i MR. LAPPAS It slmuld be the some thine.
1
3
4
6
d
`)
10
ii
12
13
14
15
16
17
i3
19
23
a>
23
a:
is
a conil m of interest to yriur scrv¢e as a member a' th,
sL:dic.d Review Committee'
).IR. BURNS: Same oCjectiott!o!!x irat, of -!,u
question.
A If l du gn to theyearly meeling and we do
vote, it's cn nnddog substantial. So I didn't feel that
there was any conflict of Interest. 1 felt 1 seas clothe a
medlnl -- an essentialty medical consultation on tliesc
cases that they had brought before its like 1 would to far
any other review organization.
Q As a memherofthe cagngtior. did you e ,e:
have to vote an amendments to the Highma k
A I don't remember. 1 just don't.
Q Had }.>a ecer Lcen gi': cn any ::ire of dccume:n
that described the U, -13 <I caacs!tat s•, uM L., a..7n
your iuri ai lim a,a: o`!:e\ cd nP'=eve
Commh!ce?
A 1119 it cst I; don't rent crib or. I don't ever
remember stein; a document )eat deter iSe'd -- I jest t!!
remember.
IPA blue ShiAd Review f nnimiit rti atLl^Ila„
marked as Plain1iit'. F•:hit, if \'m111, v15.t
BY MR. LAPPAS:
ds cxh:'oa S. 'bleu is -dl!ed l c::n^:t.acia
! 33
I MR Bi7R.NS'. It is, but I wanted to make sure
th.u ate had an ,rw::e,ntement so that t1e: dwor wasn't
be:'aaed i,y h.
I'.Y AIR. LAPP "v. .
Q "tic are not ymn,_ to get into the iadiviaaal
6 r.u:rakers Foes 1995:hiough 1999, but during ihut periud of
line, frum 1991 to !99 ), do you remember having jr.)
pan:cuLvly serous dtspsc wuh Highmark cunceming )um
h dfin;sI
li MR.BCR.Ni.1 v: ill object to t!te fort ofthe
I I q':n;,or B:a )a; cm: c;:s:eent (you uade'stanA it.
A Nut than 1 tint remember. 1 don't rememi,a
over a dliphic.
Lt BY MR. LAPP-"5:
? t t:'::r.:•' ". -'i 9:- t ..aim::
.......,:e h
A Nn.b:r:u,e'.rhut A.•re is one questkm of what
., to do,waalwr%s call Amara. R: neser -- Wet or., one ;i the
nuj.nr insurer: in th, state of Pi nnsv tv n•da mi, if )nt're
s.anr!suu a:113 :n:m^ld ro.i:^s a rc ) oat' re d. l.:y!':e
., i..... ...
GEIGER & LORIA REPORT !NG SERVICE - 1.800-222-487`
DAIBER, WILLIAM
08/22/01
WENRICH VS
HIGHMARK
34 36
1 Q That's preen much the animdc of most I with regard to the Medical Review Committee hearing with
2 physicians, you don't -- 2 regard to Dr. Wcnrich on May 4th, 1999^
3 A Exactly. 3 A No.
4 Q .. want to be on their had side, righ0 4 ' MR. BURNS' No further questions.
5 A N'e don't wort do anything that's going to tome I
5 (The deposition was concluded at 11:40 a.m.)
6 back to haunt us. 6
7 SIR. LAPPAS: Let's sup outside lot a minu:c, 7
9 we are almost done. S
9 (Recess). 9
to SIR. LAPPAS: Thoseare 111:1he questions) 10
I I have I did reserve the right to pursue the miners shat.Yr. 11
12 O'Brien instructed the client not to answer 12
13 13
14 rROSS.EXAMI.NAlION I
l4
Is 15
16 BY MR . BURNS'. 15
17 Q I haue a fcw general qucstines. Dnctar, yoo 17
13 were amember of tlm Medical Re•.tew Committee that re+ie•.:ed 13
19 the chtan sebr.uned by Dr. ',ceurcli nn Mey 4i:, !':99. 19
20 correct.' 20
21 A Ycs. 2l
22 Q At the same time yumcere also chat i; known '!'
23 as a professional member of the corporation, that is a 23
24 professional meniberofthe Highmak Corporation. is that 24
25 correct' 25
A Yei.
2 t? r,id the het that yoc ,,la fm sor,a
3 men;cer of hu hiigtmar!c :o;ucciun:a my •.,:t;'io"uecce or
4 Tact up.:n our w:r%o; a me^r!•erohh: Nded;=! Re'ie.e
5 Commmc:l
6 A "in.
7 Q The fact ti:at you ,scrc a professionui member
? of the ccip?rc;ion. di th,a imps, er l'.ava any msAenccnc
9 the decision that you assts:-, in rxcclil'ay. is the Sledi:al
:0 Revicw Committee on May 4;: Nos vidi regard to Dr
II Wenrich's claim?
12 A Na.
13 Q The fact tha: you are par Id Ibr so r•: rtes
i4 rnd;red to itnls of your by Hiehm vs. lnconmae,I or
I : Penii;% .'aria 9!m: Shield does that m any ua.. inilneme
IS ,:ur„ rk cc t'• Mdi.n.... Cu'_c:?tee'
17 A No.
!3 Q Thu fsct that ycu paid as::;.%l rium of
I ) en0 do In , f• r, rl : _. a a:ermet o"I•r Mee •: i ... qu. 2J Qa•:;niru:, w,thout «persc> a. a.;: u; ._ ..:.
23 ro.
C?d :i, 7:<111 rnrr:n:ra. I d'l: ,
37
1 S -ATE OF PENNSYLVANIA
_ COUNTY ^P D:WPEIN
4 I, Virginia Loria• a Reporter Notary-Public.
5 ::uthunited toodmtaister oaths within and for the
C:jrnmonnea!tt of Pennsylvania and take depositions i the
! trial of causes, rfo nereby eelnfy that d:r :urexomg is
s tu;umm ;y of R'ILLIAAd K. GA;Bi.EF., C. J..
I 9 I ILaher certify that before the taking of
I0 said deposition, the v,juiess was drip sworn; that the
11 qurbhons and Answers were taken down stenographically lby
12 Cie said reporter Virginia Loria, a Reporter Ne:ary-Pubhi ,
13 :uproscd end agreed to. and aft-N ards n:duccd to
14 ;;pnvirng under the direction of the said Reporter.
I tla%c rent} that the prcee!ings and
i „l ill' ands car]Pai i'I:ac n.:e; '.'..
and Ihct this ccp? i a :. c..,
IS l:'. liCtip: afl;'„`ia6ic
.. _.., .4 . h as : .
GEIGER & LORIA REPORT! IG liERVIGE - 1-8040.222.45
NFIDENTIAL
:al Review Committee
May 4, 1999
The Medical Review Coa6 ` ttee was convened at 9:50 a.m., Tuesday Ma)- 4, 1999
with Robert E. Albertiai, M.1! Chairman, presiding.
Ia addition to the Chaum in', the following members of the Cotnmitteu were present:.
Daniel H. Brooks, Nf,D., Illliarn K. Daiber, D.O_, Jacqueliuc Dixo_., R'illia-, C.
Dodson, M.D., Morren J. Gre??burg, M.D., and Laurence K Harris, M.D.
I ,
Crary A. Euunett, M.D., ShIit Nertmur, M.D., and Stuart L. Silvetmaa, NI.D. members
of the Comtnitt= did not arse tdithe meeting.
Also present at the meetnq were 13rent J. O'Connell, M.D., Vice President and
Interim Senior Medical Direcioi, Stp_f Nitnbe:s 7or1 i. Dubs, Rosemary K Snyd:r. Tija
Hilton-Phillips, Esquixe and Thomas E. Wood, Esquire, of the Ia- firm, ?reefer, Wood,
fallen and Rsh?'.
II
It shculld be no . t tore is z1' aaen?reat to the Febrva 2, 1999, Minuues. V LLam
C. Dodson, M.D., abstained orn voting on accepting, as Closed ezses, Penza State
Gasirgex CLaic (G?+4G S'rC Iuiercal +ICdicine), Pem-1 5rax Ge sr.;er Cliru (l?f:;hopen
Farn:r: Practice), Pc :-n S G, KnSer CJ ntc Nich-lsor, F=_suI
^.d Pcr_q
Ge1ss1nno er CLL21c (SWyoml_:a C 'Y" I4L'.!T3. ?•I2G;C ).
U-cz
-::iruteS 0f s, " t_d...! F,...-w G) =i
..
Z7 77"
ALAINT??
EXfif
LBlT
Leslie VV. Weurich, D.C.
(Tower City)
Leslie Wenrich, D.C.,
with the Medical Review
One area of particular u
of diagnostic imaging stuc
sating, the sub-spzcializati
by non-radiologists raised
i
Spero 'f, l.appas, Esquire, were present to discuss the case
i
to Blue Shield is the utilization and quality assessment
The rapid proliferation or radioloJIJ}' into the outpatient
of radiology' and the increasinD perrorrnattce of radiology
regarding the tecluucal and interpretive quality of
films, the adequacy of equivment and personal training, and the necessity of the studies
themselves. During early 1993, Blue Shield cotnntenced n statewide review of the
quality of diagnostic x-rny ieri-mmed in providers' offices and freesta.rtding diagnostic
centers. This revievr h,tvo! ed all providers who reported total charge x-rays under Bluc
Shield's _, dedical/Surgical -08-mms. Since the initial revic,- focused on the technical
aspects e` the seR ices ;Le. Le actual equipment, svstems and parsonnet involved), Blue
I'
Shield steered a'%+ay fro. ?hespita] bitted doctors who rponcd only professioaai
s
Component Cl!a'°c3 In th Z:SC S1b13[IO.15, Z',. tech,11cal portion is c;U'i Cf Blue Sh!eld'
purview, and is paid by the v rious Blua Cross Plans.
The technology phase !: xite study vras vefj comprehzrsive in ra t re. Blue Shield
!'e'i Il'R'Cd every'tlling tCJCI the aCl'.'CIi.U31lt}" aad 1: Kc' p Gf tl? e7L`S ^. Yom ::` and iycte tP.S
th° tl dill`} Of tip iP?' L53d. 131u:' 5iueld a1 i0 li,n!^21 &: C.,e
belna 11t111Zed;
'-
trzir.ir.g a :id c=rtincctiorh ??f a! Fir. .15. ct'- *? n t`.^ ,.hc
are:et?d the :, .
.,
i
f.
2
1. ltnpletnent statewide proc dures to evaluate the adequacy of General
Radiographyequipments sterns in use;
3. Develop and implement as i educational process to improve the quality of
substandard radiographs;'
3. Discourage providers, wh continued to per!"orrn unadceptably, from
I .
providine services to sub gibers; and
i
4. Ultimately', deny paym i i for radiograpbs from providers whose services remain
unacceptable when corn ared to the accepted standards of the medical commurdry.
Participating Providers vi re prohibited front billing subscribers for such denied
I
services, as clearly supp d by the Rettulations for Participating Providers.
In order to provide then Issary resources and expertise. with respect to the technical
aspects of radiography stud' s,,131ue Shield ca.d?cted finis study in partnership Mich th=
,
consultin- Linn of ECRI. E Cd is an independent orgaaizatio. committed to improving
tii,,Jthca_-e technoloxy. EC is r. nonprofit institute chattered in J9», which provides
broad variety of services to ?housands of hospitals and other heaifh•rclated org-cizadors
and agencies throughout the orld.
i
.
d deve!optd a Gcrteral Radio??raphy' Tec*:aol?
!tt the Spring of 1993, Blue Shiel '..•
Assessment QuCStlonna:re, conlwlCtlon with ECRl, to collect all needt!d technical da'.n
I
from providers tiv._o report _7 to-2l ch,:Pe X a'S. :_n?e 0. .•. 2:d i, 'x=!e
..-
.
mcs now.vorrhy t':d alert d Blue to ,_
te:1CV! ._... CC.^. _.?=r:. M i?C p. =-,t'1 vdL.= ?•1?.... ?.
- nd for
r,uestionnaire v,as ti:ea Ftoki
? ._.
..•S:o,^.t 3flpi?; tfi'. t'2('Jl 41d
3
In view of the muneric breakdo Aii of total cliarge x-ray providers across the State,
questionnaires were mailed In a Regional basis. Over tine thousand providcrs from
I
various specialties in the Utetn Cc:Utr-l and %Vesterr, regions of the
,
State were
contacted. J
In April, 1993, Blue S eld forwarded a radiography questioruiaire to Dr. Wcnrich.
i
The doctor rommed the co pleied questionnaire v ithin tha month. According to the
information provided by Dr. Wcnrich. Blue Shield learned: 1) that Dr. Wer.rich had one
(1) x-ray tnau,Mn- in his ofr'ieel; 2)D:, Wcn•ich was not certain or tht date o` pu:•chase; 3)
the machine was ore-ovzed at the ti^e of purchase; 4) the equipment n a not under a
service contract; 5) Dr. We Ich did no: subject the equipment to testing; 6) Dr. Wenrich
roported he had no perform ce logs for the film processo,; 7) ta:a Dt. `•ti'enrich had no
i
w7inen politics and prated els for a quality assurance prog-arn; and fina!!y, 3) that Dr.
Wenrich's office facilitti I not i pcct.d by the Perm>ylv'ania Deparv-neat of
1
1
Environmental Resources, B? eau of Rad-iatlon Protection. Based upon iae information
provided to Blue Shield by ?7r. P.''c tric 4 Sluc Sbi ,Id detzrrn .ed that Dr. til'zn ich'>:
ray films probably did not inlet the accepted s ndards of cua1it, in the c- tmjn. Ti ty. A a
result, Blue Shield as;eti D . ?Venrch to snSn;it a random!; selected aample of x-ray
I
films for review.
i
In ca;iy 1994, s.et21 attertipts v:era made to ;bt?in The x-rays from Dr. ir.
Order to dct'_rrrnms th-- X-i!iF rr'.'_, `h- _.'c]?nle::. St
7^,;.?:..-.,
communi:, Tn15 Tt(]'Se5t as ii1 _nc v.l f. i :7 7 i in;
L.:.. o._...
The deL rr :a:'.t:U i , to .,.. _.. J 6'. ! ...
CAer.t accepted stllt"a,d:1, i> . , Cf•:.. i ,^ : . C :I C.U; L.
s11r11 be rn_je Ay., Piua in
cc•r;c:It:•t{,r:
1 :.,, rli 1
l`ioslC::aS rnCaoC 11'. ., ,- _ ri?:.: fiat Q.
4
covered service deemed not to meet accepted standards
of practice shall qt be eollectcd from the subscriber-
Each Participati g Provider shall Permit'Blue Shield
representatives make reasonable examination of the
provider's clinic records, including x-rays, relating to
any coveted ervice performed for Blue Shield
subscribers, wfi d such exalnination is necessary to
resolve any ques 8n conceming such services.
Despite repeated request , ,Ithe x-rays were not received. Therefore, on May 9, 1996,
Blur- Shield sent a certifieletter to Dr. 'Wen ich ittdicatrg that due to his (a lure to
subait x-ray flaw for revie' reir?orced Blue Shlc11's conclusion that the x-rays did no:
neet the accepted standw* • lof quuliq' in the community. This 1cr,cr informed L7:.
I.
Wenrich that, effective thutvl(3b) clays from the date of the letter, no further payment
would be made fc. x-rays) ?ehnsyivania 81ue Shield informed Dr. R'enrich that his
subscribes would receive t . following r,.nssa"-. e:
Pennsylvania Blu';
equipmenr uzd to,l
accepted standard
Therefore, no F yi
Provider may noti
sen'ices.
S?=eld 1>s detc.,tined, that thz
sovided this x-ray Boas not tncct the
cf quality in th- comnunity.
,ant' L,i!i b: r..adc. ;, P?Irucipating
bill the raticn-t for these denied
At that ttmC, D:. :Venrc Iw'I i'J°n Itie riulit w, zpp.at 1`4i deCi3iorl, ito' c': Cr, Pi
I
Wenrich did no: respond. ffibs6quLntly, Blue Shield hegan issuing the Explanation of
Benefits as sct-fault ill the May 9, 1996, letter to Dr. Wer*ich, Ove- {he next several
aotlths, :tic. Lamas. Dr 'Xen.i :h'C aitor, nar ? ullnr.
pepanment. Blu: Sai'_t,' 3, 7
i
dcfnlaC iL':: C!i: Ii']flll. ::: l^.:? :: _ 'r.
aL_. F_ v; '41:
d1B CumbLfl:tt.: Cou.p 0, t..l^.-, n I _:•i:': ,?A 1??_ ,' ?, ...
I
S
that Bluc Shield's statemeri on the Explanation of Benefits was false and defarnatory and
that it subjected Dr. Wenric fo public hatred, contemp' and ridicule.
Peruuylvania Blue S}t el ?•as infomice on Jun 30, 1998, that the Cumberland County
Court of Common Pleas is ed a decisio
di
i
i
'
n
sm
ss
ng Dr. Wenrich
s action for failure to
submit his dispute to the t propnate review commtttcc. The court held further that,
ll
despite plaintiff's argumen thai the clahn was inappropriate for the review committee
because it involves allege II ?
Lkmation, the dispute actually arises from the provider
I ,
agrec:nent between H gh_rn add Dr. t,•!c :::? an;!- that the rase cottld be viewed as a
dispute ever quality of c-,. . Is are:;ult; Mr. l..appas requested th,.t this matter be
r
presented before the Medic i dview Committee for consideration. On ?'larch 3, 1999.
Blue Shield informed Mr. L-4pas that this matter world be presented before the
Committee at the May 4. 1 ineetinz. Subsequently
on M-
rch 8
1999
M
L
,
-
,
,
r.
appas
t
informed Blue Shield, that. I '
^c La
greed wit't 'ht Medical Review Comrrtittee review
process and, again, requcsc Bh;b Shield consider his proposal as outlined in hs Arri! 1,
1997, correspondence.
Each Committee Memos. rcc'eived a copy o the Lrtforma4ian provided by Seem 1'.
Lappas,. Esquire, to revict. Ai tl &.5 case.
Mr. Lappas began the Ision by preset: inh their position on ti-ii; case. Fie
indicated that during 1995, i 1lue!Shici6 -,;rote *.,? D,. Wcr..ri=h i;seate i _ to infomt leis
patients ;at their cl=ir,s t vr-.:e
?
'
equipment was bete„ te.. t
n
ifir; stand,-_- ° quality.
cent li r Cf I
indicated ir.'•,n4L il..
doctors s'and=:d n. care and .
1 d
did those letters accuse the ' t of
al
i
'
m
pract
ce, they
9
suggested that the accusation was
based upon a determination' 'c?,b Blue Shield made, %ihen in fact
Blue Shield mad
,
e no
such determination. M. U pas continued to say Blue Shield suggested that this w
as a
quality of care issue Fur wh A Dr. Wenrich is to blame because he did not provide the
re uested sun
9 pies of'his x i i
y
s. No indicatcd that if Us was taste, glue Shield had many
proper ways to handle
i l
s
ioeluding removing Dr. iVcnrich from Participation.
I3ighmark wa, nor entitled t mTar Dr. V/rr ich's zcpuL-7or, among his patients because
he did not cornpiy % ich th= g'I{ lions. Pdr. Lappa indicated that Piighmarl: stated th
ey
needed to explain to Dr, t,V nric's patients why their c}airr_s were being denied- Mr.
Lappas Stated rhar a_, suo k'li Dr. We rich (through counsel) complained about
Highmark's defamatory ler s; Hi
hma
k f
d
'
g
r
a vrey
oun
to correspond with tht Patients
without Curtner tilsn3etinu, th doctor. Llif?hmark's ictrw'of Feuruazy 19, 1997, st-re
I1 v that
I
tat message to the subscribe €
3!w0uld read ?::
1_
" Li
" naD t-,; p3GCL'SS th..->e claims aS we
i
are Mthout sp?ci lc inforrna 1
on from th nr:wi?_c" 'v1r. Lappas concha1e•3 b,
stating
that Him k f
_un-1r_ cut!_e have ha ? t
?dl_d its pro'Dletr,%ith Dr. 1'ier-rich in a fair and honcst
manner from the begi:mint; ' r::a:] of slwderir:_ the'do°tor amo-ig his pztients and
repo-t,ing lies aht..t egee t
; ail l alp:autic-- At least ;_;, oF_ D: «'ecrieh's patients received
Blue Shield's dela-matory tics. They considc ed this to "r_e P. serious farm c.f
deFarranon, tiro !-,:nd :Yiat; : to _rson's t- cr; 0 P.
Ee ncnitorCd by Win. _.,ear, D: ;zt:rioh r .
i
i
l"T
I;
t
II' 6
?t3 .
answer; and'or answer all 3estions on the questionnaire. He indicated that he filled
the form out in a couple JiM- to-utes because It- was vcrn busy. Dr. Wenrieh was also
questioned as to why he di ' I s jnd in a copy of Lis x-ray badge. He responded that Blue
Shield did not request it. e farther explained that he. is in n rural county, lbrty (40)
Miles from the nearest faci ity. He performs all services in the office himself and is
pretty much an expert on x- yrJ As a Chircpractor, he'corrects or removes suhluxations.
111is x-rays are u\ determine ! I ?0 -re; t of t}rv. spine. A Comtnit:ee member inquired as to
whether or not Dr. Zdennch' I t his x_rsy equip. rent. Dr.'Weririch stated that all safer)'
I
recautlons ere tb_. I
p 'r=. He d sIIn, have the cqui;;rncnt to evalu to the KVP accuracy. If
anything goes wrong with' t? a equipment he gets a' bad film. Dr. Wenrich further
explained that he takes full P s Po? sibilir y fo,, his x-rays and equipm:n[. He checks evzry
film for quality. Dr. Wenij h! gtuestioncd the Committee us to why the qucsiionn_iia
w= re sent out. r - Con-M, itt , member infc ml :i DI. Wenrich the questionnaires wtlrd
,nailed out ti'rOSs tl}Ic Statc IJVSG'73
Ip ? o pe,F x-rays in tl 'tetr office. Blue Shield
V:..-. vcilty:C_ i:,at [t:_ q S(}' of ..-, VS L\'.cL --.isc:ibera .?-ceiving was o ._,acceptable level. Dr. were hl sated by his z.i4':,ering the qu-sLtJIIs did nor Parantcc
that he tares t*oo•d film,. it i hisl cbility and %cthnicue for taki lg fhe f Lms. Mr. T &. i a_
stated Bluc Shield should ie L ned Dr. Wenrich they nD longer %vanted him (c
pa'•ticipate. in addition, the hlou?d have info- ed Itic *naiie a
y nts t.! : tn•_ x-iii •s ?-e bein'
der;--d br._ on h:- %, r- .it..n. .. >^prr:Ila __ C.:Jnt_... IP.r ••+
WE! Lr1C11 :'hat :h E'c -._.: C-e Cll?.h;j Dr. ( IG'
i
f... ..,_...1 ...?. P: ..L .,...'._.. _
I
j ?
Compensation. Dr. Wenr c stated that Slue Shield did not ask him to. lie indicated that
i
Blue Shield is just a small I o an of his practice and figured the sunny was a form of
I
hara5 nienl_ He further i ted be wrote the questionitaire off as jusr a sunny. A
Corantittec member inform Nenricla that he should not have subrrhed Workmen`s
?.
Compensation claim; to BI a S Feld for payment. Dr..Wenrich stated these cases have
been scnled and the pane I rdmed for mare carer At this point they were not
car sidzted WorF men's Col er tion crises. He did not want to =e,.
^d these in for review,
I
A C orn.li tec member ask D Wcrujch why he didn't respond to Stue Shicld afro
receiving notiflce:loa that I p?Lars wc;c goLlg to reccitc a mcssagc infort:Sng them
that their claims were being ` 7'irbased art quality issues. Dr. Wcanch stated that it w•as
I his Understanding that the lel as final, therefore, he chose not Ia respond. Mr. Lappas
i ,
then requested Blue Shield r aG'
I
patients. A Committee me =r [advised Mr. Lctppas that'llr, ltienrichs' failure to submit
i ?
the x-rays for re icw' resutt' ' irrl his fr a e to comply V ith hi= Participating Provider's
Agreement o,irn B'ue S,:ie1 t I t by E4;kir
j :- IC ttiighmurk'; rich:
I,-) delame his Chc',t. }{: %4'3? I ? 'Cd it "':$ I{I?i Tt :' rtgh::c• inform their subscribers.
rt Per the Cabe rre3erliarlo, t,PB 3 1,-a dismissed e0i Pl'ensyl L'ania Blue Shi_•I? staff
lion the meetir coon, Thi f=t,-c- then reviewed 'all inlormatioc pertinent to the
ca i.._Lt rig t::_ h- -L9 dismbuted during one rneeiTt_. After reviewing a1i o; tha
i
irlforalation fiA4- con siuering '' cTCLRLi;Cn's L"?i i:'a', fl;, 17-' ?- }. ,. ? ?..:? ri
i _ - e...-: ,. ..^.7 S G'nn Sj'tr_ :i3 ?t'?::
Shiedd presenT-_, t^° Car-_m tFe r19t nl]' r?.a[ fir. %Vea-r!:i_ C; d L!s CJn7a: rJ l
till:' L;IUC St f ,C fiC:_.i fl,. r;a
:J 't'. r'• t ? I7?li? :.... 1. .. !?i- .. ......_ .. ..
9
Therefore, the
Blue Shield. In support
B-9 Thi
covered servi
practice in the
Shield in cons
active clinical
deemed not to
shall not be colt
B-.1S Each
Blue Shield r
examination a
including x-ra}
performed for
examination is
concerning sucb
Bascd on those deter
vodna, moved, seconded,
Char Dr. Wer.:ich be :",stru
id that Dc. Wenrich has no claim for damages against
decision, the Cun niUee relied upon the Blue Shield
iders cited below:
-mfnation as to whether any
:ets accepted standards of
amity shall be made by Blue
n with providers engaged in
e. Fees for covered services
.ccepted standards of practice
rnm the subscriber.
ipating Provider shall permit
natives to make reasonable
provider's clinical records,
tting to 'any covered 'service
hield subscribers, when sucb
iary to resolve any i question
es.
the Committee, with only the Professional `Ylembers
ed. (•.vith one (1) member ab=t nin,. Dr. GrccaburT)
tide by the ebcve det:nnirctions.
o/
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LOOIS00
ado 668TLSSM Wa CS:LT OVIV0T
v
Appendix B
PENNSYLVANIA BLUE SHIELD
Review Committee Guidelines
Pennsylvrtnia Blue Shield operatee under the provisions of Act 271 of 1972 (40 PA. CS. Section 6301 et
seq ). Section 6324 (c) of the Act requires that all matters, disputes or contioversles relating to professional
health service doctors or any questions involving professional ethics shall be considered and determined only
by health service doctors selected in a manner prescribed in the By-laws of the professional health service
corpo,•ation involved.
The Blue Shield By-laws (Article X) stipulate that Review Committees be formed to consider and determine
matters, disputes or controversies arising out of the relationship between Blue Shield and prcressicral providers
who render health services.
The Medical Revia?,v Committee considers if maters, disputes or con! rover.sies involving all professional
provider who render h•salth services. The Dental Reylc,% Committee considers matters, dlspu!es o- controversies
involving dentists,
The matters referred to the Review Corrittc^eB ge-l-rally concern disputes with respect to overuti6,afi0
andrer m!s.rilizatlon of services. qualiry of cars ;e:n;icc• 'DPnrf!ts and usua! charge problems.
Tne forowing proC?.1Ures are appl,cablc 'o Re%i;: _ Om-hill, ces:
1. For matters involving potential o:eruGhzat,cr, and'or rnisu'ihzatien of sa'vices or Inappropriate quality of
Care, a complete review is corrducied of the'provider's pracilce pat ern prior to referral to a Review
Committee. During this revie'J,, a sarnpi!e Of i ie,^•f records, si3tis! cs, d,a• nosCr, and/or ether
infC'ma!IOna! e(lUrC35 is r°_':,eN/ed the rssWts o` such revleo'{ as wel. as the !:Ofnp!eic !nathodology
-. used. ?P,iil be n?auc avai'able to thy; ;r,;•vldsr v.-,,en any adverse f.nd?ngs result. Shout) the provider
disagree vatli the resu%,s d Ina rec,or due to i! _ samp'e size, the prcvldar may re:,ues' an expandecl
revia,.
!f Ii io' detarn?Ilad that an Uver'-fi:'rl'. ?:"t i)os tb_-er. r^aci thr sr of "" c•i !Ile Fief-o'!n'?n! ?'!If be
C ?WCLe:: to, i p=r 'o'! ri r::' r' ':ncead l-r t'ef° C '^... .t LA ci r ?,. ::-1' II?e
r? s of su h overpayme-, cc °W?hons II b n, de a%'a!ab!_ pl In. - osider. Th_ pr„elcler o.tl, be
furnished :)i:n t.,e m.'ethOdOlJgy used ;o calcule:t= the oaefpayn,e,:'..'.cluCi.ng any var!a?ies used to
adjust multi-;ear overpayment datenninat,ons
3 f d Is dr•_cvere l in the re,,iew p•o:ess rise! ;,r u.-,darpeymen! hag r,,-
?cl
, :he f r;iro;r ma, s .ek
r imbursament. t1. h the ap,:ropriate sppea! rr,echanlsrrs, for d• c.air- in•.oked dunng the same
lime period as the rune,; ley Biue Shie'. 5'_ch cla;rns nnlss be sl,pported b;•v cl?^?ical records.
If !h=_ nt_,,.? „ i! not I e rc^f.-r
_ aj fC. cr: .
_.. J a ii.a ' c, !0 __'s••i?f r,h
!:,rte -lr'r he„ _5F,err' _! cr •e.'IT ll F ,. n F ?.
) u _ ?n _! I lepf-v.^i.,'.c '+..
o.rtact ,r? tc.
Lie ;.
y Gil t
...t;
f``c'.
anlJ Oi the a: 4 ezir, r.._ -..1,3 - ry- , •
3 7 -
a. co aE [,C
and of his or her right to be represenleu by legal counsel. The prc`;,dcr is again encouraged to
provide any information which may be pertinent lJ the resolution of the matter. Accompanying the
letter is another copy of the basis of any refund request. the applicable section(s) of the Blue Shield
Bylaws pertaining to Rovie'w Committees, the Reviaw Committee Gwuelines arid, if applicable, the
Participating Provider's Agreement and the Regulathons for Participating Providers.
6. At least fifteen (15) calendar days prior to the oate of the Revie'.v Connmi;lee meeting at which the
provider's case will be considered, the provider voll to given a copy of the documentation to be
presented to the Review Committee
7. A provider may forward,nforrnation to the Reviev. Committee or, upon wr.tten request to the Secrets;
of the Committee, may appear before the Committee, A provider who requests to appear before
the Committee will be notified of the date and time of his or her appearance at least fifteen (15)
calendar days prior to the meeting. Such notification will inform the provider of the exact nature of
the proceeding, of the provider's right to represent his or her disagreement and to provide any other
information which will aid the Committee in its deliberation of the matter.
2. Matters s,heciu!ed to bs; brought before tie Revie'.v Committee :`rill nct to del 7erated oo a formal
cr an informal basis bet:."een Blue Shield Sta.f and Committee m= tubers pnC tc the scheduled da!a
of the Committee meeting except at the request of the provider. Should the provider make such a
request, the results will be fully disclosed to the provider in writing.
9. A Review Committee's considera!lorl of any rnat!er, dispute or contro,,eisy concerning a proviJer
who has requested to appear will be continued untl after the scheduled appearance of the provider
except as follows:
a. It the provider is notified of the Committee meeting 45 or mo-e calendar days in ad.ance of
such meeting and a9vlses the Sec!etary CI the Committee that he or she with-1-3 to otterid but is
unable to be present on the specific dare scheduled, the Committee '.,.ill proceed v.ith it;
consideration of the rna!ter. Flov.e`.er, [he ;),O,,-der will be g. e-the opp,rtunit, to appear before
live Committee at its next s_fheduleol meeting
C. If notdica"cr. „;ent Tess than 45 c ?bant!ar ci-? prcr to the LJ,?Im't._a m;tp mg and the p,.
)eider
8b'Jlses !re secretary OI We he or si`a :.s^ s atteh'f, t;i ` n'.?e hl1:. but is
Unable tC dJ so on the speCJfC gate .._ !_:,'Jed, the proviJer be g'anted Cane cont!,loan, e.
the CommiItae s`:III proceed with lie GJC SiL ei :illOh of the m?tier a' t:',e next Scheduled meeting
d the prc,ider, fo,'o`nir,g notification as p:o,i1ad fr in Item 5 abo? e, raJ:i t appear.
Follo`rvino the Reoe,v Committee meetm-_ the pqo`,ider rill be ad;iseo ,n writ;`,-g v;0i;(i Hier; (310)
Calendar dais of at dcermin_-t!jns rrada 'y the Ccmmittee. S7Lh incl,.:da. b':t 11C!
be Iinnited to, tti= amount of any ref:_in.d a; ?ssua, t'ne fsc[s and reaso-Jng suppcrr.no Blue Shield's
condusien_. and, for Partlcipaima Provid_rs, tna spec''„Ic basis e Rag,-, ation of Bl::e Shield's claim.
For tr o ^`atter_ ! ,.clang the p?irtirr ti .y 5[ltus of a pr.`vid_ t- _. der `n !! be nod fi=ri ':i1h
thirt 01 Cae t.,_. ?as F.aio "n r. b; the -_,e _.-y Pea"h
dajs .. `c; .f ir,_ r.; ?.tf•. - _
r
Prnn.tiylvunin y
0
Illut•5hir•Id
t .unp ILII. 1'rnnr Nrama 1 711X•!
CERTIFIED MAIL
R ET IRR RECEIPT REyUESTgp
May 9, 1996
Leslie W. Wenrich, D.C.
129 W. Crand Ave.
Towel City. PA 17980.1018
Dear Uoctor Wenrich:
In 1993, Pennsylvania Elly& Shield
quality of diagnostic initiated a review x•raye by sending
x-ra of the technical
Ys performed in their office surveys to providers t-1110 our review of the completd surveys, to Blue Shield durin reported
s 1992. Followirl
at•cu1acX-l'ay filns for all r eyes whode[d no determined that t we should review
in p whose x rays wer•ep Providers w had no quality control
to the survey. You tall intoroceesed manually, or who failed to respond
one of these three groupings.
We are rluw bringing this project to a close
f«w providers who have failed and you are one of to forward x-ra
Althouyl we have made reheated at for the very
meet 010 accepted standard Ye for review, I's requested
pt 11 to determine whether your x-ray,
unable to of quality in the communit
do so. 1'tlerefore, we must assume y, we have been
standard. Effective 30 days from that th
payment will the date of ey do not meet that
he' made for x-re this letter, no further
x rayn will be denied wi Ys taken in your office.
Shield has determined With Lhe following messa Payment for L1,,
not mech. the that the equipment used ge. "Pennsylvania 111u,,,
accepted standard of gnalit to Provide this x-ray does
payment will be made. A par[ici Y in the community. tJli17 nervire.r Paling provider ma t Therefore, ?rl
or
y not bill the pa[ienl
The subncribel' will aluo receive the same mesea
Eyplanat.ion of Benefits. :lease note
with Pennr:ylvania Bill'? •'ll g` or, his nr
tha. as a pnr't is i
you ma patir:,j !'r ovi:l:•r
donicd 94 leld y t: not t;ill
rvil•gn. the, subec•r il:el far
111^r:r
You 'rave i1h4r rr5y"t,,w:l"l;eal I.hi»
d,.
nr,u it in; }' to
_f y::u wigs, r.o r'1:, thts,
u: it
CERTIFICATE OF SERVICE
I hereby certify that on this date I served a true copy of the
attached document upon the person (s) named below by mailing a copy
addressed as follows, postage pre-paid, deposited into the U. S.
Mail at Harrisburg, Pa.
TARA DICKERMAN, ESQUIRE
CHRISTIE PABARUE MORTENSEN AND YOUNG
1880 JFK BLVD
10TH FLOOR
PHILADELPHIA, PA. 19103-7424
, SCHIFFMV, BROWN AND-EALHOON, P. C.
By.
SPERO T. LAPPAS, Esquire
Pa. Sub refine Ct. ID no. 25745
26'8' inglestown Road
Suite 201
Harrisburg, PA 17110-9670
(717) 540-9170
October 23, 2002
SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C.
By: SPERO T. LAPPAS, Esquire
Page 2
LESLIE WENRICH, D.C.,
Plaintiff
V.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2288 CIVIL TERM
NO. 99-4000 CIVIL TERM
CIVIL ACTION -- LAW
ORDE FCOURT
'04
AND NOW, 4684 Q upon consideration of the Motion for
Summary Judgment filed by Defendant Highmark, Inc. d/b/a Pennsylvania
Blue Shield, it is hereby ORDERED that said Motion is GRANTED and that
Summary Judgment is entered in favor of Defendant, and Plaintiffs Complaint
is DISMISSED with prejudice.
/Spero T. Lappas, Esquire
2080 Linglestown Road; Ste. 210
Harrisburg, PA 17110-9670
For the Plaintiff
Names A. Young, Esquire `t
Michael J. Burns, Esquire
Tara B. Dickerman, Esquire
1880 JFK Blvd. 10'h Floor
Philadelphia, PA 19103
For the Defendant
R K3
106-/9-03
?A
t?
.m
i
B
LESLIE WENRICH, D.C., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 97-2288 CIVIL TERM
: NO. 99-4000 CIVIL TERM
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE
SHIELD,
Defendant : CIVIL ACTION -- LAW
OPINION
FACTS
This action, brought by plaintiff, Leslie Wenrich, D.C., began in 1997 with
the filing of fraud and defamation claims against defendant, Highmark, Inc., d/b/a
Pennsylvania Blue Shield (hereinafter "PBS"). The plaintiff, in his original
complaint, alleged that PBS had defamed him when it denied payment for x-ray
examinations the plaintiff had performed, and informed plaintiff's patients that the
reason for the non-payment was that the plaintiff's equipment was substandard.
The plaintiff alleged that the statements were defamatory because PBS had not
actually determined that the equipment was substandard. He also submitted that
he suffered damages including impairment of reputation, embarrassment, and
mental anguish, and was injured in his business or profession.
PBS filed Preliminary Objections to Dr. Wenrich's original Complaint, and
on June 30, 1998, this Court, by Order and Opinion, dismissed the Complaint for
failure to take the claims through an alternative dispute resolution process as
required by plaintiffs Participating Provider Agreement. The Court determined
that, although the plaintiff argued that the claim was inappropriate for the Medical
Review Committee (hereinafter "MRC") because it involved alleged defamation,
the dispute actually arose out of the provider agreement between PBS and Dr.
Wenrich and the case could be viewed as a dispute over quality of care. Wenrich
v. Hiohmark. Inc., No. 97-2288 Civ. Term (Pa. Ct. C.P. Cumberland, June 30,
1998).
Pursuant to the alternative dispute resolution process required by the
Provider Agreement, the MRC of PBS held a hearing to review the decision of
PBS to deny Dr. Wenrich's patients payment for the x-ray examinations he
performed. The Committee issued its decision on June 1, 1999, affirming its
determination that the equipment was substandard and denying plaintiffs claims
for damages. In its decision, the Committee noted that plaintiff had breached his
contractual obligations under the Pennsylvania Blue Shield Regulations for
Participating Providers,' and that PBS had acted properly and within its rights
' In support of its decision, the MRC relied on the following portions of the Blue
Shield Regulations for Participating Providers:
B-9 The determination as to whether any covered service meets
accepted standards of practice in the community shall be made by
Blue Shield in consultation with providers engaged in active clinical
when it denied the claims submitted by Dr. Wenrich and when it promptly notified
its members of the reason for the denial.
The facts surrounding the decision of the MRC need to be recited. PBS, as
a result of its decision to commence a statewide review of the quality of
diagnostic x-rays performed in providers' offices and freestanding diagnostic
centers in 1993, developed a General Radiology Technology Assessment
Questionnaire to collect all needed technical data from providers who reported
total charge x-rays. The questionnaires were to alert Blue Shield to any possible
deficiencies and to the need to obtain sample files in order to investigate further
the provider's equipment. PBS sent Dr. Wenrich, along with over five thousand
other providers from various specialties in the eastern, central and western
regions of the Commonwealth, one of the questionnaires in April of 1993. Dr.
Wenrich returned the completed questionnaire within the month. PBS determined
that the equipment probably did not meet the accepted standards of quality in the
community.2 PBS sent a letter to Dr. Wenrich requesting that he send random
practice. Fees for covered services deemed not to meet accepter
standards of practice shall not be collected from the subscriber.
B-15 Each participating Provider shall permit Blue Shield
representatives to make reasonable examination of the provider's
clinical records, including x-rays, relating to any covered service
performed for Blue Shield subscribers, when such examination is
necessary to resolve any question concerning such services.
(Regulations for Participating Providers, at 2-3.)
'Through the questionnaire, PBS learned the following facts:
1) Dr. Wenrich had one (1) x-ray machine in his office
2) Dr. Wenrich was not certain of the date of purchase
r L
I
x-ray samples for review, pursuant to the Provider Regulations. After multiple
requests, PBS did not receive any samples. Thus, on May 9, 1996, PBS sent
another letter to plaintiff, stating that his failure to respond reinforced its
determination that his equipment was substandard, and effective thirty days (30)
from the date of the letter, no payments would be made for the x-rays.
Additionally, PBS informed Dr. Wenrich that his subscribers would receive the
following message:
Pennsylvania Blue Shield has determined that the equipment used
to provide this x-ray does not meet the accepted standard of quality
in the community. Therefore, no payment will be made. A
participating Provider may not bill the patient for these denied
services.
(MRC Hearing Minutes, at 4.) Although the letter also notified Dr. Wenrich that he
had the right to appeal the decision at that time, he did not respond. After the
thirty (30) day warning passed, PBS sent the letters. It was not until after the
letters were sent to the subscribers that plaintiff, through his attorney, began
3) the machine was pre-owned at the time of purchase
4) the equipment was not under a service contract
5) Dr. Wenrich did not subject the equipment to testing
6) Dr. Wenrich reported he had no performance logs for the film
processor
7) Dr. Wenrich had no written policies and procedures for a
quality assurance program
8) Dr. Wenrich's office was not inspected by the Pennsylvania
Department of Environmental Resources, Bureau of Radiation
Protection
(MRC Hearing Minutes, at 3).
communicating with PBS regarding his allegation of defamation.3 Based on these
facts, the MRC upheld its determination and dismissed the plaintiffs claims for
damages. Id. at 8.a
After the decision of the MRC, plaintiff filed a Petition to Vacate, Set Aside,
Modify and Reverse this decision in our Court. Plaintiff alleged that the hearing
held by the MRC was unfair, denied plaintiff due process, and was a result of
fraud. The filing of this Petition resulted in the initiation of a second action
alleging that the statements made by PBS in denying payment were false and
defamatory. Again, the plaintiff alleged that he suffered damages as a result.
Plaintiff requested that the decision of the MRC be vacated and the case proceed
to trial by jury in this Court.
The pleadings have closed and written discovery has been exchanged. Dr.
Wenrich and two members of the MRC have been deposed. Thus, the case is
ripe for a determination of Defendant's Motion for Summary Judgment.
' During those communications, PBS informed plaintiff that the proper forum for
any dispute between a Participating Provider and PBS was the Medical Review
Committee. However, plaintiff disregarded this and filed suit in this Court, which,
as noted before, was subsequently dismissed for failure to submit the claim to
the Medical Review Committee.
Not only was Dr. Wenrich given multiple warnings regarding his refusal to
submit the requested samples, but PBS provided him with sufficient notice of its
forthcoming denials of payments to subscribers and the message within those
denials. Nonetheless, Dr. Wenrich still: 1) failed to submit samples; 2) failed to
question PBS on its proposed statement to subscribers regarding payment for
the x-rays provided by Dr. Wenrich; and 3) failed to utilize his right to appeal the
decision in the thirty (30) days allotted to him for such purpose, as was clearly
delineated to him in the May 9, 1996, letter from PBS. Dr. Wenrich clearly had
DISCUSSION
Summary Judgment, pursuant to Pennsylvania Rule of Civil Procedure
1035(b), should be granted when "there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law." See Pa.
R.C.P. 1035(b). In this case, the Court must determine two separate issues: 1)
whether there is any genuine issue of material fact regarding whether plaintiff
was deprived any right to due process at the MRC hearing; and 2) whether there
is any genuine issue of material fact regarding whether plaintiff has established a
claim for defamation.
Due Process
The due process requirements for a MRC Hearing are clearly delineated in
the Pennsylvania Supreme Court case Rudolph v. Pennsylvania Blue Shield, 553
Pa. 9, 717 A.2d 508 (1998). In that case, the Court stated that MRC hearings are
subject to due process review because the MRC, like an administrative agency,
is "a creature of the state," formed and functioning pursuant to the terms of a
regulatory act, in this case the Professional Health Services Plan Corporation
Act, 40 Pa.C.S. §6301 et se. (hereinafter the `Regulatory Act'). The Court held
that "due process requires that a person aggrieved by the award of a medical
review committee is entitled to judicial review for notice and the opportunity to be
heard in an appropriate forum and for fraud or other misconduct." Rudolph, 553
time to stop PBS from ever sending the alleged defamatory statements to his
patients and chose not to do so.
6
Pa, at 14, 717 A.2d at 510 (1998) (emphasis added). Additionally, due process
requires that the forum be fair and impartial. Id. (emphasis added).
(1) Notice and Opportunity to be Heard
The first element of due process judicial review is whether the plaintiff had
sufficient notice of the hearing and an opportunity to be heard. In this case, the
plaintiff testified that he did receive notice of the MRC hearing (Wenrich
Deposition, at 52). He also testified that he and his attorney were present at the
hearing and had an opportunity to present Dr. Wenrich's case to the MRC. Id. at
54-55. This included presenting a packet of material documents, which plaintiffs
attorney referred to as a "trial memorandum," to the committee members. Id. at
57-58. Finally, Dr. Wenrich testified that there was no other witness or evidence
that he wished to present at the MRC hearing. Id. at 72.
(2) Appropriate Forum
The MRC was the appropriate forum for Dr. Wenrich's claim in this case,
as previously determined by this Court in its Order and Opinion dismissing
plaintiffs original Complaint for failing to submit the dispute to the MRC. Wenrich.
No. 97-2288 Civ., at 5. Specifically, plaintiff had a contract with PBS that required
the use of the MRC to resolve disputes between PBS and its Providers. The
Provider Agreement, which plaintiff signed, required that plaintiff abide by all the
terms of the Agreement, including following the regulations and bylaws of PBS.
These bylaws provide that "all matters, disputes, or controversies arising out of
the relationship between the corporation and professional providers... shall be
7
considered, acted upon and disposed of and determined by the appropriate one
of the two Review Committees hereinafter referred to." (Bylaws, at Article X, 1.)
As determined by this Court, the issue in the present case was a dispute arising
out of the relationship between PBS and Dr. Wenrich, a professional provider,
and thus the MRC was the appropriate forum to resolve plaintiffs claim.
(3) Fair and Impartial Forum
In Rudolph the Supreme Court held that the MRC was not impartial
because it was composed of members of the board of directors of PBS, pursuant
to its bylaws. Id. at 15, 717 A.2d at 510-511. However, the Court stated that, "if
the bylaws of Blue Shield were written to include the possibility of an unbiased
panel, a remand for a new hearing before a reconstituted and impartial panel
would have been appropriate." Id. at 15, 717 A.2d at 511. Thus, the Court held
that the provider's due process rights had been violated because the MRC, given
that a majority of its members were also employees of PBS as provided for under
the bylaws,5 did not provide a fair and impartial hearing.
5 The bylaws in use at the time of Rudolph stated:
There shall be a Medical Review Committee consisting of at least
five (5) members, each of whom shall be appointed by the Chairman
of the Board of Directors of the Corporation and each of whom shall
serve until his successor is appointed. A majority of the members of
the Medical Review Committee shall be doctors who are either
members of the Board of Directors of the Corporation or members of
the Corporation.
Rudolph, 553 Pa. at 12-13, 717 A.2d at 509-510 (citing Bylaws in effect at time of
decision).
In response, PBS changed its bylaws to reflect the decision of the
Pennsylvania Supreme Court, and limited the number of employees that can
participate on the MRC. Now, the composition of the MRC requires a majority of
non-corporate members. (Bylaws, at §9.2). The pertinent section of the bylaws is
Article IX, Section 9.2, which states:
9.2 Medical Review Committee. There shall be a Medical Review
Committee consisting of at least eight (8) members. A majority of the
members of the Medical Review Committee shall be Providers who
are Participating Providers or Preferred Providers with the
Corporation ('Provider Members"), and the balance shall be
consumers covered under health care contracts issued by the
Corporation ("Consumer Members"). At least three fourths of the
Provider Members of the Committee shall be Medical Doctors or
Doctors of Osteopathy.
Id. Additionally, Section 9.4.2 states that "[n]o member shall be a Director of the
Corporation" and Section 9.4.3 states that "[a]t least two thirds of the members of
any Review Committee shall have no relationship with the Corporation (other
than as providers...)" (Bylaws, at §§9.4.2, 9.4.3). Finally, Section 9.4.4 states that
"[n]o member of any Review Committee shall have any conflict of interest that
would prevent him or her from rendering a fair and impartial decision in any
dispute between the Corporation and its health care providers" (Bylaws, at
§9.4.4).
At the time of plaintiffs hearing on May 4, 1999, these changes were in
effect, and the MRC consisted of three PBS employees who are considered
corporate members and seven non-corporate members (MRC Hearing Minutes,
at 1). The minutes of the hearing also establish that, of the four professional
MRC members that voted, only one was a corporate member. Id. Thus, at the
time of the hearing, the MRC was in compliance with the amended bylaws which
required at least two thirds of the MRC to be non-corporate members.
Additionally, there is no evidence to indicate that the MRC panel was
biased. The plaintiffs depositions of Dr. William Daiber and Dr. Robert E.
Albertini, both MRC members who were present for the plaintiffs hearing, show
that neither was influenced by their relationship with PBS in making the decision
regarding Dr. Wenrich's claim. In his deposition, Dr. Daiber testified that his
status as a professional member of PBS has had no impact on his work on the
MRC or on his decision in Dr. Wenrich's hearings Similarly, Dr. Albertini, the
Dr. Daiber's testimony regarding any possible impact his status as a
professional member of PBS had or has on his role as a member of the MRC is
as follows:
Q: Did the fact that you were a professional member of the
Highmark corporation in any way influence or impact upon your work
as a member of the Medical Review Committee?
A: No.
Q: The fact that you were a professional member of the
corporation, did that impact or have any influence on the decision
that you assisted in reaching via the Medical Review Committee on
May 4th, 1999 with regard to Dr. Wenrich?
A: No.
Q: The fact that you are paid for services rendered to patients of
yours by Highmark, Incorporated or Pennsylvania Blue Shield, does
that in any way influence your work on the Medical Review
Committee?
A: No.
Q: The fact that you were paid an honorarium of 800 dollars for
your work as a member of the Medical Review Committee, without
expenses at that point in time, did that in any way influence your
review and decision with regard to any claims that come before the
Medical Review Committee?
10
Chairman of the Committee and the only voting corporate member, testified that
his status as a corporate member did not influence his decision regarding Dr.
Wenrich's claim. (Albertini Deposition, at 20.) Dr. Albertini also testified that he
did not receive any compensation for being a corporate member, and that any
financial reimbursement he received for traveling did not influence his decisions
on the MRC in any way. Id.
Thus, these depositions show that there is no evidence that any of the
MRC members present at Dr. Wenrich's hearing were biased. Furthermore,
because the evidence shows that the MRC was within the regulations of the
amended bylaws and the members who were present were not biased, all the
evidence shows that Dr. Wenrich received a fair and impartial hearing.
(4) Fraud or Misconduct
The decision of the MRC was not a result of fraud or misconduct. The
MRC held an impartial hearing, evaluating the quality of Dr. Wenrich's care by
asking him questions regarding his x-ray equipment. After listening to plaintiffs
case via his attorney, the panel questioned him about his failure to submit x-ray
samples and allow PBS to conduct tests on his x-ray equipment. Based on the
information provided by plaintiff, the questioning of Dr. Wenrich, and an
evaluation of PBS regulations, the MRC decided that Dr. Wenrich was not
A: No.
(Daiber Deposition, at 35.)
engaging in acceptable quality of care and had breached his contractual
obligations under the PBS participating provider regulations.
Plaintiff has provided no evidence to show that the decision of the MRC
was a result of fraud or misconduct. The Court in Rudolph only ruled that the
composition of the MRC was per se biased, and thus resulted in a violation of
due process. The procedural guidelines used by the MRC in Rudolph had been
ruled as constitutionally adequate by the Superior Court of Pennsylvania, and,
thus, were not at issue in the Supreme Court decision. Because the MRC was
not a biased panel in this situation and met all the other procedural due process
requirements, the decision was not a result of fraud or misconduct. The decision
of the MRC is based on PBS regulations and Dr. Wenrich's breach of his
contractual obligations under those regulations. Furthermore, Dr. Wenrich's
refusal to submit x-ray samples or allow his equipment to be tested was sufficient
evidence to show that he was not engaging in acceptable quality of care. This
assessment and decision by the MRC is within its jurisdiction and free from fraud
or misconduct.
Additionally, pursuant to the Superior Court in Rudolph v. PBS, 679 A.2d
805, 810, (1996)' which stated that the review of the MRC decision would be akin
to that available from common law arbitration, this decision is binding and may
'The Supreme Court in Rudolph only reviewed the composition of the panel and
its failure to consist of unbiased members in its decision. All other procedural
aspects were appropriate and were not reviewed. Id. at 511.
12
not be vacated. The Common Law Arbitration statute in Pennsylvania, 42
Pa.C.S. §7341, is as follows:
The award of an arbitrator in a nonjudicial arbitration which is not
subject to Subchapter A (relating to statutory arbitration) ...is binding
and may not be vacated or modified unless it is clearly shown that a
party was denied a hearing or that fraud, misconduct, corruption or
other irregularity cause the rendition of an unjust, inequitable or
unconscionable award.
Id. Thus, because the evidence shows that Dr. Wenrich was not denied a
hearing and that the MRC's decision was not the result of fraud or
misconduct, the determination by the MRC in this matter is final and
cannot be vacated or modified.
There is no genuine issue of material fact regarding whether plaintiff was
denied procedural due process at his hearing in front of the MRC. He was given
adequate notice and was provided the opportunity to present his case in front of
a fair and impartial panel in the appropriate forum. Additionally, the decision of
the MRC was not a result of fraud or misconduct. Thus, the decision of the MRC
is binding and final and cannot be reviewed by this Court.
Defamation
Dr. Wenrich has failed to meet his burden in proving defamation. In a
defamation action the plaintiff has the burden, pursuant to 42 Pa.C.S.A.
§8343(a), of proving the following:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
13
(5) The understanding by the recipient of it as intended to be applied to the plaintiff. to the plaintiff from its publication.
(6) Special harm resulting privileged occasion.
(7) Abuse of a conditionally p . 384, 389-390, 634
Id. = also Elia v Erie Insurance a Y t a h_nge
he defendant has the
e defense, aer
A.2d 657,659 (1993). When relevant
burden of proving:
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on which it as as of comment published.
(3) The character of the subject matter of defamatory public concern.
42 Pa.C.S.A. §8343(b). It is the were defamatory - The first issue is whether the statements ac mmun'rcation co plained of
function of the trial court to determine whether the 276 282
is capable of a defamatory meaning. Maier =tt , 448 Pa.Super. A.2d 701, 704 (1995). Defamation can be defined as a ,,communication
671
which tends to harm an individual's reputation so as to lower him or her in the
estimation of the community or deter third persons from associating or dealing
at 660
with him or her:' Elia, 430 Pa-Super. at 390, 634 A.2d , citinZart?n
er. 245, 482 A.2d 266 (1984). A
Lehi h Count Humane Soc., 333 Pa.Sup
defamatory if it ascribes to another conduct, character or a
communication is also
condition that would adversely affect his fitness for the proper conduct of his
business, trade or profession. Gordon v. Lancaster Osteo athic Hos ital
proper 1985). The nature of the audience is
q?, 340 Pa.Super. 253, 489 A.2d 1364
14
=f -04 d FOI
Previous Image
Reflolmed to Correct
possible Error
(5) The understanding by the recipient of it as intended to be applied
to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
Id. See also Elia v. Erie Insurance Exchange, 430 Pa.Super. 384, 389-390, 634
A.2d 657, 659 (1993). When relevant to the defense, the defendant has the
burden of proving:
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on which it was
published.
(3) The character of the subject matter of defamatory comment as of
public concern.
42 Pa.C.S.A. §8343(b).
The first issue is whether the statements made were defamatory. It is the
function of the trial court to determine whether the communication complained of
is capable of a defamatory meaning. Maier v. Maretti, 448 Pa.Super. 276, 282,
671 A.2d 701, 704 (1995). Defamation can be defined as a "communication
which tends to harm an individual's reputation so as to lower him or her in the
estimation of the community or deter third persons from associating or dealing
with him or her." Elia, 430 Pa.Super. at 390, 634 A.2d at 660, citin Zartman v.
Lehigh County Humane Soc., 333 Pa.Super. 245, 482 A.2d 266 (1984). A
communication is also defamatory if it ascribes to another conduct, character or a
condition that would adversely affect his fitness for the proper conduct of his
proper business, trade or profession. Gordon v. Lancaster Osteopathic Hospital
Ass'n, 340 Pa.Super. 253, 489 A.2d 1364 (1985). The nature of the audience is
14
a critical factor in determining whether the communication is defamatory, and, if
the communication was not intended for a large audience or the publication is
extremely limited, it is not defamatory. Maier, 448 Pa.Super. at 283, 671 A.2d at
704. Additionally, communications that may annoy or embarrass a person are
not sufficient as a matter of law to create an action in defamation. Id.
Plaintiff has failed to show that the statements in this case were
defamatory. In looking at the facts in the light most favorable to the plaintiff, it is
clear that there is insufficient evidence to prove defamation. In his deposition, Dr.
Wenrich stated that, although his patients blamed him for not getting reimbursed
for the x-ray services, their primary concern was not about what the statement
said, but the fact that PBS did not reimburse them (Wenrich deposition, 66).
Additionally, plaintiff failed to provide any examples during his testimony of how
he has been exposed to ridicule or public hatred in the community.8 Finally, Dr.
a Dr. Wenrich's testimony was as follows:
Q: Is there anything of an example you can give how these
statements exposed you to any type of ridicule or public hatred in
the community?
A: Well, it puts you on a defensive position. When you do an x-
ray, you're not reimbursed. And the patient says, well, look at this,
his x-rays are no good.
So I don't get to hear all of this, but that's what I hear
secondarily.
Q: Who have you heard that from?
A: I don't know if I can say who. It's been a lot of years. They're
no longer doing it like that, by the way.
Q: What do you mean, who is no longer doing?
A: Blue Cross and Blue Shield.
Q: 1 thought you were talking about the patients. So you can't
name anyone specifically who you were just referring to.
15
Wenrich failed to show that the approximately 30-40 percent loss to his income
was a result of these statements. Id. at 70. Plaintiff argues that pursuant to
Pellagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337 (1987), the statements
which tend to blacken a person's reputation concerning the practice of his
profession are actionable without proof of special harm.
However, even if this Court accepted that the statements made were
defamatory, either per se or based on plaintiffs evidence, PBS would not be
liable for the defamatory publication because it was made subject to a privilege
and that privilege was not abused. Ella, 430 Pa.Super. at 391, 634 A.2d at 660,
citing Chicarella v. Passant, 343 Pa.Super. 330, 337,494 A.2d 1109,1112-1113
(1985). "Communications made on a proper occasion, from a proper motive, in a
proper manner, and based upon reasonable cause are privileged." Chicarella,
343 Pa.Super. at 337, 494 A.2d at 1113, quoting Beckman v. Dunn, 276
Pa.Super. 527, 536, 419 A.2d 583, 587 (1980). In Beckman, the Superior Court
noted some examples of occasions giving rise to conditional privileges, including:
(1) when some interest of the publisher of the defamatory matter
is involved;
(2) when some interest of the recipient of the matter, or a third
party is involved; or
(3) when a recognized interest of public is involved.
Id. at 536, 419 A.2d at 587. In the instant case, the statements made were
privileged because they were in publications that were sent to a select group of
A: No.
(Wenrich deposition, 66-67.)
16
patients who shared a common interest with PBS in the quality of Dr. Wenrich's
care.
An abuse of a conditional privilege occurs when the publication:
(1) is actuated by malice or negligence;
(2) is made for a purpose other than that for which the privilege is
given
(3) is made to a person not reasonably believed to be necessary
for the accomplishment of the purpose of the privilege; or
(4) includes defamatory matter not reasonably believed to be
necessary for the accomplishment of the purpose.
Id. at 537, 419 A.2d at 588. Plaintiff has failed to show that the statement PBS
made in the letters to Dr. Wenrich's patients were actuated by malice or
negligence.
Plaintiff argues that because PBS did not make an actual determination
regarding the quality of the x-ray equipment, the statement that the equipment
was substandard was intentionally or negligently false, and thus precludes the
use of conditional privilege to excuse the defamatory statement. Plaintiff focuses
on the fact that in the letter PBS sent to Dr. Wenrich regarding the equipment
and requesting that he submit samples, PBS indicated that the substandard
nature of the plaintiffs equipment was not something that PBS had determined,
but rather was nothing more than an assumption. While this is true and
undisputed, it is also undisputed that this letter gave Dr. Wenrich fair warning that ?x
the statement would be sent to his patients if he did not respond to the required
request for x-ray samples. Additionally, Dr. Wenrich was afforded the opportunity
to appeal this decision at that time, yet failed to do so until after the publications
17
i:1
containing the alleged defamatory statements were sent to his patients. Finally,
as noted previously, it is completely within the jurisdiction of PBS to make such
determinations of a Provider's quality of care based on his or her failure to abide
by his or her contractual obligations. The statements were not false, nor were
they actuated by malice or negligence. Instead, they were directly related to the
purpose for which they were sent, which was to inform the patients why they
were not receiving reimbursement for Dr. Wenrich's services. Furthermore, they
were sent only to those patients to whom it was necessary for the
accomplishment of that purpose.
It is clear that there is no genuine issue of material fact regarding whether
plaintiff has a claim for defamation against the defendant. Not only did plaintiff fail
to show that the statements were in fact defamatory, but, even assuming that
they were, the statements were privileged and PBS did not abuse that privilege.
For the reasons stated above, defendant's Motion for Summary Judgment
is granted and plaintiffs Complaint is dismissed with prejudice.
18
CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Bums, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 10`h Floor
Philadelphia, PA 19103
215-587-1600
LESLIE WENRICH, D.C.
VS.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Attorneys For:
Defendant,
Highmark, Inc., d/b/a
Pennsylvania Blue Shield
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
NO. 99-4000
PRAECIPE FOR JUDGMENT ON THE ORDER FOR SUMMARY JUDGMENT
TO THE PROTHONOTARY:
Kindly enter Judgment on the Order dated June 19, 2003 granting summary judgment in
favor of the Defendant Highmark, Inc. d/b/a Pennsylvania Blue Shield and dismissing Plaintiff's
Complaint with prejudice in the above-captioned case as no appeal was timely filed by plaintiff.
CHRISTIE, PABARUE, MORTENSEN
and YOUYQ
A Profe sio morahon
By:
James A. Yung, Esquire
Michael J. urns, Esquire
Counsel for Defendant
Highmark, Inc., d/b/a Pennsylvania Blue
Shield
Date: 7' oS
4203421
I
1 CHRISTIE, PABARUE, MORTENSEN AND YOUNG
A Professional Corporation
By: James A. Young, Esq./Michael J. Burns, Esq.
Attorney I.D. Nos. 00213/62088
1880 JFK Boulevard, 10'h Floor
Philadelphia, PA 19103
215-587-1600
LESLIE WENRICH, D.C.
Vs.
HIGHMARK, INC., d/b/a
PENNSYLVANIA BLUE SHIELD
Attorneys For:
Defendant,
Highmark, Inc., d/b/a
Pennsylvania Blue Shield
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
NO. 99-4000
CERTIFICATE OF SERVICE
I hereby certify that the attached pleading or document was served upon the following
counsel by first class U.S. Mail, postage prepaid, and addressed as follows:
Spero T. Lappas, Esquire
Serratelli, Schiff nan, Brown & Calhoon
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
Dated: July 22, 2003
and
AP
By:,
4203421
MORTENSEN
James A. Youn , Esquire
Michael J. Bunts, Esquire
Counsel for Defendant
Highmark, Inc., d/b/a Pennsylvania Blue
Shield
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