Opinion No. (1989) ( 1989 )

ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OFFICIAL OPINION OF THE ATTORNEY GENERAL THAT WOULD DISCUSS, BASED UPON HYPOTHETICAL FACTS YOU HAVE PROVIDED, THE CIRCUMSTANCES UNDER WHICH 36 O.S. 6055(A) (1988) IS VIOLATED. SECTION 36 O.S. 6055 WHICH PROVIDES ACCIDENT OR HEALTH BENEFITS, STATES IN PERTINENT PART:

"THE PRACTITIONER SHALL BE EQUALLY COMPENSATED FOR SUCH SERVICES OR PROCEDURES ON THE BASIS OF CHARGES PREVAILING IN THE SAME COMMUNITY FOR SIMILAR SERVICES OR PROCEDURES TO SIMILARLY ILL OR INJURED PERSONS REGARDLESS OF THE BRANCH OF THE HEALING ARTS TO WHICH HE MAY BELONG, PROVIDED SUCH PROFESSION PRACTITIONER DOES NOT PERMIT FALSE AND FRAUDULENT ADVERTISING OR SUCH PROFESSION OR PRACTITIONER DOES NOT AID OR ABET THE INSURED TO VIOLATE THE TERMS OF THE CONTRACT OR THE AGREEMENT."

BECAUSE THE ANSWER TO YOUR QUESTION CANNOT BE PROVIDED AS A MATTER OF LAW, BUT MUST RATHER HINGE UPON THE EXISTENCE OF FACTS OF EACH PARTICULAR CASE, IT IS NOT POSSIBLE FOR THE ATTORNEY GENERAL TO RESOLVE YOUR QUESTION BY THE ISSUANCE OF AN OFFICIAL OPINION. 74 O.S. 18B(E), WHICH REQUIRES THE ATTORNEY GENERAL TO SUBMIT HIS OPINION ON ALL QUESTIONS OF LAW SUBMITTED TO HIM, DOES NOT ENVISION THE ISSUANCE OF OPINIONS, THE RESULT OF WHICH IS DETERMINED BY VARIABLE FACTUAL ISSUES. THE ATTORNEY GENERAL IS NOT AUTHORIZED BY LAW TO RECEIVE EVIDENCE OR TO COMMAND THE PRODUCTION OF EVIDENTIARY MATERIALS BY SUBPOENA OR UNDER OATH. THAT DIFFICULTY IS ESPECIALLY PERTINENT TO YOUR REQUEST INASMUCH AS THE ISSUE AS TO WHETHER OR NOT PARTICULAR CONDUCT AIDS OR ABETS A VIOLATION OF A CONTRACT TERM IS INVARIABLY GOING TO TURN UPON MATTERS WHICH CAN ONLY BE RESOLVED IN AN EVIDENTIARY HEARING. AS YOU CAN SEE, THE ANSWER TO THIS QUESTION TURNS FIRST UPON THE PROVISIONS OF THE INSURANCE CONTRACT WHICH WOULD REQUIRE AN EXAMINATION AND INTERPRETATION OF STANDARD CONTRACT LANGUAGE, NOT TO MENTION LANGUAGE PECULIAR TO INDIVIDUAL CONTRACTS AND WOULD REQUIRE THE ATTORNEY GENERAL TO DETERMINE WHETHER PARTICULAR CONDUCT VIOLATES THE AIDING AND ABETTING PROHIBITION. THAT DETERMINATION CANNOT BE MADE ON THE BASIS OF HYPOTHETICAL FACTS. IMPORTANT FACTS WHICH ARE OMITTED IN THE HYPOTHETICAL MAY WELL REVERSE THE ANSWER. IT IS TO BE DOUBTED THAT ANY HYPOTHETICAL COULD BE CONSTRUCTED THAT WOULD HOLD ENOUGH FACTS CONSTANT TO PROVIDE A MEANINGFUL ANSWER.

IN SUM, THIS IS THE KIND OF QUESTION THAT CANNOT BE RESOLVED APART FROM THE COURTS. I REGRET THAT A MEANINGFUL ANSWER APPLYING SOME UNIFORM AND UNIVERSAL PRINCIPAL OF LAW IS NOT AVAILABLE BUT I AM SURE YOU WILL UNDERSTAND WHY THAT IS THE CASE.

(NED BASTOW)