Blue Cross & Blue Shield of Georgia, Inc. v. Shirley , 305 Ga. App. 434 ( 2010 )

ADAMS, Judge,

dissenting.

I respectfully dissent because the issue in this case is one of fact, not law, and a jury decided that fact in favor of the plaintiff. Accordingly, the case of Michna v. Blue Cross and Blue Shield of Ga., 288 Ga. App. 112 (653 SE2d 377) (2007), is not controlling. Moreover, there is no evidence in the record to show that the policy at issue in Michna is exactly the same policy at issue here nor that the hospital in that case had the same policies and procedures.

(a) In the present case, Melanie Shirley had purchased an “Individual Hospital/Surgical Contract” from Blue Cross and Blue Shield of Georgia. The contract was designed to offer only “catastrophic coverage.” The contract states that its intent “is to provide benefits for basic inpatient services and outpatient surgical care when medically necessary. Strict limitations apply to other outpatient services.” The contract adds that,

[f]or example, this Contract does not cover outpatient medical care including Physician office visits, prescription drugs, nervous and mental care, maternity care, physical therapy, durable medical equipment and many other services. Exclusions are explained more fully in Article 9.

In Article 9, the contract specifically excludes benefits for “[outpatient medical care including Physician office visits.” But the contract also expressly provides that “Hospital Inpatient Benefits” are available “if you are admitted as a bed patient to a Hospital on the order of a licensed Physician.” And “Physician Services are covered for in-hospital medical care. . . .” The contract defines “Admission” as this: “Begins the first day you become a registered Hospital bed patient and continues until you are discharged.” Finally, as Blue Cross admits, the contract it authored does not define “inpatient,” “outpatient,” or “bed patient.” Although the policy provides that “the rules and regulations of the Hospital . . . control admission policies,” it appears that no written rules and regulations were introduced into evidence.

Construed in favor of the verdict, the evidence shows that on June 5, 2006 in the afternoon, Shirley went to the emergency room with complaints of chest pain. She was initially seen in the emergency room, but, on the orders of a physician, Shirley spent the night of June 5-6 in the main part of the hospital in order to undergo treatment and testing. She was placed in a room with a bed and bath and served two or three hospital meals during her stay. On June 6, the hospital sought precertification from Blue Cross for Shirley’s inpatient status. Blue Cross’s own records, which were based on information received from the hospital, indicate that initially, her case was classified “inpatient medical” and that she had been admitted to the hospital. Shirley testified that after being given a clean bill of health, she was discharged on the afternoon of June 6. Blue Cross records also indicate the exact time of admission and discharge: “Admit: 6/5/2006 5:48 PM” and “Disch: 6/6/2006 4:17 PM.”

Six days after Shirley’s discharge, however, Blue Cross received a fax from the hospital that said “this is a[n] observation case. Thanks.” The fax also included a four-page “Clinical Review Summary Report” that indicated “Patient is [sic] observation and will discharge home with no needs.” Blue Cross admitted that it voided the precertification request and denied coverage of Shirley’s hospital stay expenses based on this fax and claim form, as well as the language of Shirley’s contract. Blue Cross admitted that when it denied the claim it did so based on a different version of the contract than Shirley’s actual policy. Blue Cross later asserted that it also denied the claim because the hospital claim form did not include a charge for room and board.

Although the Blue Cross representative testified that “bed patient” means the hospital charged for room and board, she admitted the contract does not say that, although a later version of the contract does. She also testified that “observation means outpatient in the insurance industry,” but she testified that there is nothing in the contract to that effect. The director of business services for the hospital testified that one of the forms sent to Blue Cross was coded “131,” which, she testified, means Shirley was considered an “outpatient discharge.” She testified that the clerk who inputs the information that generates the claim form must indicate whether the physician’s order indicates “inpatient admission or outpatient admission, or observation admission.” She testified that “observation is considered outpatient services.” But she admitted that she did not look at any of the rest of Shirley’s medical records and that other records would be relevant to the main issue; for instance, it would be relevant if the doctor’s orders indicated that the patient had been “admitted.” Shirley presented evidence that a dictionary definition of inpatient is “a patient who is lodged and fed in a hospital, clinic, et cetera, while receiving treatment.”

Thus, the main issue in this case is whether Shirley should be considered an inpatient or “bed patient” as opposed to an outpatient under the terms of the contract when she was treated at the hospital on June 5 and 6, 2006.

“Contract construction is a three-step process.” (Punctuation and footnote omitted.) Tillman Park v. Dabbs-Williams Gen. Contractors, 298 Ga. App. 27, 29 (679 SE2d 67) (2009). If there is no ambiguity, the court determines the meaning of the agreement; if there is ambiguity, the court applies the rules of contract construction; if those rules do not resolve the ambiguity, a question of fact remains for the jury. Livoti v. Aycock, 263 Ga. App. 897, 901-902 (2) (590 SE2d 159) (2003).

Here, there is ambiguity because “inpatient” apparently has more than one meaning. The majority opinion concludes that a person is not an inpatient if he is not charged for room and board and the stay is less than 24 hours despite the fact that the contract does not say that. Yet, under the Family Medical Leave Act, “inpatient care” simply means an overnight stay:

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in [29 CFR] § 825.113 (b), or any subsequent treatment in connection with such inpatient care.

29 CFR § 825.114. And Webster’s has defined the term to mean “a patient who is lodged and fed in a hospital, clinic, etc. while receiving treatment.” Webster’s New World Dictionary 697 (3d College ed. 1988). See also American Heritage Dictionary of the English Language 932 (3d ed. 1992) (defining “inpatient” as “[a] patient who is admitted to a hospital or clinic for treatment that requires at least one overnight stay”). None of these definitions require that the patient be charged for room and board in order to be considered an inpatient, although they may require that the patient be provided room and board. One definition turns on whether the person is “admitted” for “an overnight stay.” Thus, it is simply not true that the “usual and common meaning” of “inpatient” must include the fact that the patient was charged for room and board or that they stayed more than 24 hours. Even if some definitions include those requirements, clearly other definitions do not; hence, ambiguity.

Moving on to the rules of construction, under Georgia law, insurance policies are “liberally construed in favor of [coverage], and the conditions and provisions of contracts of insurance will be strictly construed against the insurer who prepares such contracts.” (Citation and punctuation omitted.) Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224, 226 (1) (a) (603 SE2d 298) (2004). Construed against Blue Cross, the meaning of inpatient, therefore, can reasonably be construed to mean when the patient is admitted to a room for an overnight stay. The trial judge instructed the jury that “the correct path to determining whether the Plaintiff was an inpatient is to determine whether she was admitted to the hospital.” Thus, evidence, which was conflicting, was submitted to the jury to answer that question.

The jury was authorized to disbelieve Blue Cross’s testimony about industry practices, and it obviously decided that Shirley had been admitted to the hospital and that therefore she was considered an inpatient. There was evidence to support this conclusion, and therefore the judgment should be affirmed.

The case of Michna is not controlling. First, there is no evidence to show that the two cases involve the identical contract or the same hospital. In fact in the present case, Blue Cross’s representative testified that Shirley’s contract did not require a room and board charge in order to establish inpatient status whereas a subsequent version of the contract did. Second, in Michna, the trial court, on summary judgment, considered evidence as to the customs and practices of the hospital and insurance businesses to the effect that a hospital stay of less than 24 hours would be considered an outpatient visit. Michna, 288 Ga. App. at 115. Here, no such evidence was presented. Furthermore, the jury here was authorized to disbelieve the one statement made asserting that in the insurance industry, an “admission” for “observation” was considered an outpatient visit. Finally, Shirley presented evidence in this case in the form of hospital records and Blue Cross records indicating that she had been admitted to the hospital, which, as even the Court in Michna, agrees, was the “correct path to determining whether [the patient] was an ‘inpatient.’ ” Perhaps Michna was not admitted to the hospital. But evidence was presented to the jury in this case to show that Shirley was.

(b) As a part of her proof, Shirley introduced certified records from the hospital, which Blue Cross stipulated were business records of the hospital. These records contain numerous references to Shirley being “admitted” to the hospital and to her being an “inpatient.”¹⁶ On appeal, Blue Cross contends the records were improperly admitted over its objection. Blue Cross argues that medical records containing diagnostic opinions and conclusions do not fall within the business records exception to the hearsay rule and that, therefore, the medical records should not have been admitted.

At trial, Blue Cross objected to the introduction of any medical opinions found in those records. Shirley explained that she wished to admit the records for the limited purpose of showing that she had been admitted to the hospital and that she was considered an inpatient. Shirley agreed that medical opinion information was irrelevant to the case and she offered to allow Blue Cross to redact that information. Although Blue Cross argued the point, ultimately counsel for Blue Cross stated, “Well, Your Honor, I have no problem if you want to admit them for that limited purpose.” The records were then admitted over objection. The court instructed the jury that the documents were admitted “solely as evidence by which you might determine whether the Plaintiff was an inpatient or an outpatient.” No reversible error is present.

First, once a record is properly classified as a business record, it “shall be admissible in evidence in proof of the act, transaction, occurrence, or event.” OCGA § 24-3-14 (b). And although diagnostic opinions of persons not before the court may not be admissible under the business records exception, see, e.g., Baker v. State, 251 Ga. 464, 464 (2) (306 SE2d 917) (1983), the records in this case were introduced only for the limited purposes of showing whether Shirley had been admitted to the hospital. Although Blue Cross complains that such records should not be admitted in toto, it never objected on this ground below.

Second, Blue Cross indicated that it had no problem with admitting the records for the specified limited purpose and it failed to respond to Shirley’s offer to redact objectionable material. “Induced error is impermissible. Edwards v. State, 235 Ga. 603, 604 (221 SE2d 28) [(1975)]. A party cannot claim error ... where he himself committed or invited the error. . . . [Cit.]” (Punctuation omitted.) Westmoreland v. State, 192 Ga. App. 173, 176 (2) (b) (384 SE2d 249) (1989).

Decided July 15, 2010 Reconsideration denied July 30, 2010 Troutman Sanders, Jaime L. Theriot, for appellant. Jason C. Waymire, for appellee.

Third, Blue Cross complains that the jury may have relied on one or more portions of the medical records that constitute hearsay. But out of a 50-page document, Blue Cross has not identified any specific hearsay statements to which it now objects, and it has not explained how it was harmed thereby. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Punctuation and footnote omitted.) Albarran v. State, 249 Ga. App. 331, 334 (4) (548 SE2d 440) (2001). See also Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008).

Finally, Blue Cross itself introduced one of the hospital records to which it now objects; it admitted the “Admission Orders,” through the testimony of a hospital administrator in order to show whether Shirley had been admitted to the hospital.¹⁷ The witness also testified that all of the medical records could be relevant to a determination about a patient’s status. Thus, Blue Cross’s own witness indicated that it was the forms themselves that were relevant to the principal issue. Moreover, Blue Cross has not shown how the hospital record it introduced was different from any of the other hospital records nor why the other records should be considered harmful whereas this one was not.

In short, I would hold that there was no reversible error regarding admission of the hospital records.

I am authorized to state that Judge Johnson and Judge Doyle join in this dissent.

16 The records showed that a nurse completed a “checklist for inpatients” regarding Shirley on June 5, as well as another form that indicates it was to be completed “on Admission.” Shirley’s diagnosis of chest pain is shown on her “Standard Chest Pain Admission Orders.” The same form showed that Shirley’s “status” was initially marked “Inpatient” but changed to “Observation.” It also shows that she was admitted or transferred to “telemetry.” Other forms for “admission data” were completed. These forms were all part of a seven-page “Admission Nursing Assessment” form that was completed on June 5. Another hospital form states that “Consulting Physician will admit patient.” Another identifies the “Admitting Physician” as “Bhaskar R Reddy MD, Cardiology.”

17 That form indicates that Shirley’s status was initially marked “Inpatient” but changed to “Observation” at some undetermined point.