Sued in Michigan for a Medical Bill- Need assistance with my answer

[BitsyM]

Hi all,

 

I received a Summons and Compliant on March 6th.   I was properly served and it is within the statute of limitations.  I am currently prepping my answer and affirmative defenses for submission to the court, and service to the plaintiff's attorney.

My story:  At the time of treatment by this medical provider, January 2016,  I had to see this provider as my secondary insurance from a car accident settlement required me to go there as a condition of continuing to pay for my treatment.  It is a neurologist and I have on-going migraines and neck issues from a car accident.  My bills are submitted through my primary insurance and then the secondary pays the remaining bill.  I went to see this neurologist and provided my insurance information and secondary insurance.  I went to an appointment and they advised me that I had an outstanding balance.  I once again provided the insurance information.   I believed everything was good to go as I never received anything in the mail and I went back to seeing my selected neurologist and not the one that I was required to be evaluated by, per the secondary insurance company.  In 2019 my father received a bill at his home and brought it to me.  I immediately contacted the neurologist office and let them know that they did not have the correct address.  I also advised that the insurance should have been billed and I would not have any out of pocket monies due.  I found out at this time that they had been attempting to bill the incorrect primary insurance.  Due to the length of time from the original evaluation, my primary insurance had changed and could no longer accept claims as it was over a year.  When I spoke to whomever answered the phone at the neurologist office, they told me that they would not bill the secondary insurance again as it was denied.  I explained to the person that they used the incorrect insurance, had the wrong address, never updated any of the information as requested, and I wanted to get this taken care of now that I knew that it was still outstanding.  The person on the phone ended up hanging up on me after we went back and forth.  

I received a letter from the plaintiff's attorney in December or January of 2021.  I sent a certified letter explaining everything above and received back an internal account inquiry from the neurologists office that lists me as "self-pay",  still has the incorrect address, and shows that they attempted to bill an insurance company that I did not have at the time of my evaluation.  The response letter from the attorney had a phone number and stated to call to discuss a payment arrangement.  I called the attorney the same day and left a voicemail message that I would like it to be paid via my secondary insurance that required me to go to that office.  I asked that the neurologists office please submit the bill to them as they are required to pay any bills that are not covered by my primary insurance.  I never received any response, or return phone call.

 

I received the summons and complaint.  The items in the complaint are as follows-

1. City that I live in.  It is correct and I will agree.

2. Plaintiff, at the express or implied request of Defendant sold and delivered certain reasonable, and necessary medical and/or psychology merchandise and/or services to or for Defendant, and/or his/her minor child, for the dates of service identified on the attached invoice.- The invoice that was attached had no information and had zero balance.  I am going to upload a redacted copy here.- I am going to deny, but need advise as to how to word my answer.

3. As a result Defendant is indebted to Plaintiff, on open account, a copy being attached in the principal amount of $475- I will deny 

4. Defendant has failed or neglected, despite demand, to pay the amount due- I will deny

 

Plaintiff requests judgement against the Defendant in the amount of $475 plus interest to the date of judgement, costs, and attorney fees.

 

If anyone can offer any help with my answers/affirmative defense, I would greatly appreciate any advice and help

 

 

[Clydesmom]

This is my opinion but I helped someone else on here with a similar situation (not identical) and it worked they won their case.  One defense I would raise is a failure to mitigate damages.  In this circumstance all they had to do was file the proper claim with the insurance carrier that mandated you use their office.  Their failure to submit the claim timely despite multiple requests to do so should not be your financial injury.  

This next one is novel but could work:  a laches defense.  This basically means they waited too long to pursue this.  Their failure to file the claim timely means that insurance now states they will not cover the visit because the provider waited to long to file/never filed timely.  NOT that they waited too long to file the lawsuit.  

This next part you need to decide how aggressive you are willing to be in defending this.  I would file a counter claim for negligence, billing fraud, deception and detrimental reliance.  My claim would be based on the fact that the insurance carrier mandated the Defendant use [office] and Defendant detrimentally relied upon [office and billing manager (use their name)] to timely file a claim with [carrier] which they failed to do.  Defendant was not supplied with necessary information to file their own claim including but not limited to CPT code(s) defining what service(s) were rendered to Defendant, ICD-10 diagnosis code(s) that cover services provided, and care/treatment plan necessary to process payment. 

On the negligence claim I would state that on [date 2016] Defendant did receive care at [provider] and disclosed full current address and [insurance carrier information as mandated by carrier] prior to seeing provider.  Plaintiff failed to submit a claim.  Defendant received notification of outstanding balance and again on [date] clarified correct insurance carrier information to provider who continue to bill the wrong carrier leading to the claim(s) to be denied.  In 2019 Plaintiff deceptively sent a billing notice to Defendant's father at an address Defendant did not live at.  As recent as 2021 Plaintiff continues to fail to update and utilize current correct information or acknowledge that care would have been paid at 100% had they properly filed a claim with the correct insurance carrier as they agreed to.  Deception is based on them refusing to contact you and using an address they were made aware that you did not reside at.

Defendant sees actual damages of $475 and punitive damages in the amount of $1000 for Plaintiff's fraud, deception, negligence and detrimental reliance.

If you private message me your answer I can help you adjust it before you file.

[Clydesmom]

In the other case I helped on the I gave the poster here the discover to demand (we will get to that if it goes that far) and the provider never answered.  When they went to court the poster was ready to defend it based on our discussions here.  The provider's lawyer actually showed and the Judge shredded him for not answering the discovery and filing a frivolous case.  These cases do not come up often where a provider screws up this bad but when they do they can be won.

[BitsyM]

Thanks @Clydesmom.  I'm revising my Answer.  I'm going to private message you as soon as I finish up that part.  I really appreciate you taking the time to read, respond, and assist!

[Clydesmom]

DELETE the pdf now.  You didn't redact your name on page 3

[Brotherskeeper]

@BitsyM Here is some info you may find useful. Although you won't have a jury trial, understanding what a jury must find in order to find for you helps you to craft your facts and proof. 

 

Stockmeyer, Norman Otto, General Principles of Contract Damages (2002). MICHIGAN LAW OF DAMAGES AND OTHER REMEDIES, Barbara A. Patek, Patrick McLain, Mark Granzotto, and Norman Otto Stockmeyer, eds., ICLE, 2002, Available at SSRN: https://ssrn.com/abstract=1733163

Chapter 13: General Principles of Contract Damages [1]  

2. Pleadings and Proofs

§13.14 Although mitigation is not among the common affirmative defenses listed as examples in MCR 2.111(F)(3)(a), the supreme court has held that failure to mitigate damages is an affirmative defense. Fothergill v McKay Press, 374 Mich 138, 132 NW2d 144 (1965); Higgins v Lawrence, 107 Mich App 178, 309 NW2d 194 (1981). Thus, the defense is waived if not raised in the defendant’s responsive pleading or by an amended pleading. MCR 2.111(F) (2). An amended pleading is allowed only by the written consent of the adverse party or by leave of the court, unless the pleading is filed within 14 days after it is served and it does not require a response. MCR 2.118. Mitigation should, therefore, be pleaded as an affirmative defense in the responsive pleading to avoid the expense and uncertainty of trying to raise it by motion later.

While the plaintiff has the duty to mitigate damages, it is the defendant who has the burden of proving the plaintiff’s failure to mitigate. Ambassador Steel Co v Ewald Steel Co, 33 Mich App 495, 190 NW2d 275 (1971); see also Reinardy v Bruzzese, 368 Mich 688, 118 NW2d 952 (1962); Froling v Bischoff, 73 Mich App 496, 252 NW2d 832 (1977); Hines v Grand Trunk W RR, 151 Mich App 585, 391 NW2d 750 (1985); Lawrence v Will Darrah & Assocs, 445 Mich 1, 516 NW2d 43 (1994). However, the line between proof of mitigation and proof of damages, which the plaintiff must establish, is sometimes difficult to draw. In Benfield v HK Porter Co, 1 Mich App 543, 137 NW2d 273 (1965), plaintiff, a sales representative, sued for breach of an employment contract. An essential element of plaintiff’s claim was proof of damages— the lost profits. The court held that plaintiff could meet his burden of proof if he showed not only average monthly commissions earned before the alleged breach, but also the expenses saved by not performing the contract (or alternatively, that there were no expenses saved by defendant’s breach of the contract). The court rejected the argument that expenses were an element of mitigation and held that, because plaintiff had failed to prove any offset for expenses, he had failed to prove lost profits.

If the defendant does not plead and prove a failure to mitigate and, further, does not request a jury instruction on mitigation, the defendant may not argue in closing that the plaintiff failed to mitigate. Hines. Moreover, if there is evidence that the plaintiff did comply with the duty to mitigate and no evidence that the plaintiff failed in this duty, an instruction on mitigation is not proper. Id.

3. Jury Instruction

§13.15 Mitigation is a question of fact for the jury. An appellate court will not second-guess a jury on the issue, absent overwhelming evidence to the contrary. Device Trading, Ltd v Viking Corp, 105 Mich App 517, 307 NW2d 362 (1981). The applicable jury instruction is M Civ JI 142.35:

In fixing the amount of damages, you should not include any loss that [name of party] could have prevented by exercising reasonable care and diligence when [he / she / it] learned or should have learned of the breach. The burden is on [name of party being sued on contract] to prove that [name of party] failed to minimize [his / her / its] damages and that the damages should be reduced by a particular amount as a result.

In employment cases, use M Civ JI 105.41, which is more specific about mitigation for loss of compensation.