Burke no longer catching fouls for Lakin rookies

Steve Korris Feb. 22, 2007, 4:50am

Richard Burke

In one of Richard Burke's last court appearances for the Lakin Law Firm, his colleague Dennis Barton argued that an insurer must pay every penny of a medical bill -- unless the doctor charged a million dollars for wiping a nose.

Burke used to fix other Lakin attorneys' foul-ups before being fired last month. But these days he alleges that the firm no longer has enough expertise to maintain class actions. The nose wipe moment bears him out.

It happened Dec. 15, in the court of Circuit Judge Barbara Crowder. New to the job, she had not held a hearing on a class action.

Safeco Insurance wanted her to dismiss a suit of chiropractor Frank Bemis.

Bemis claims he billed Safeco for a $75 treatment and Safeco paid $63.95.

Barton and Burke wanted Crowder to consolidate the suit with a similar suit in the court of Circuit Judge Andy Matoesian.

Crowder asked which motion she should hear first. She said the motion to consolidate was filed after the motion to dismiss.

Barton said, "The motion to consolidate was filed several months before - Oh I'm sorry. I guess it was. I'm sorry. You're right."

He argued anyway that she should hear his motion first.

"There is no reason to waste the court's time by exploring other issues of merit when if the court decides to consolidate, the case will be before Judge Matoesian," Barton said.

Crowder said she was curious why that did not occur to them before they set a briefing schedule and filed memos on the motion to dismiss.

"After reviewing the discovery we did see that this case was the same interests, the same plaintiffs, the same parties, the same interests as Shipley v. Safeco," Barton said. "Obviously not the same party, but both Dr. Shipley and Dr. Bemis do have the same interests."

For Safeco, Cari Dawson of Atlanta said, "They filed Bemis after Shipley and Eavenson." Dawson said there was no need for the third action.

"Mr. Bemis is within the classes of Eavenson and Shipley," she said. "His interests are protected by those two prior actions."

Crowder asked Barton, "You didn't have to file three separate cases but you chose to?"

"We believe that the remainder of their motion to dismiss – It does not go to – The motion to consolidate would be mooted out by the court's decision just from a practicality side view and the court's own economies," Barton said.

Crowder said she would hear the motion to dismiss.

Regarding the $63.95 payment on a $75 treatment, Dawson said, "There may be any number of different reasons that a charge may be adjusted or in many instances the charges are paid precisely as the medical provider has submitted them with no reduction whatsoever."

She said Bemis claimed breach of contract though he had no contract with Safeco.

She showed Crowder an "explanation of review" that Safeco sent Bemis.

"There is nothing that you know, that says we promise to pay you this or you are guaranteed that you're going to get exactly what you are charging," Dawson said.

Dawson also said Bemis provided no evidence of unjust enrichment.

"Where the plaintiff has provided nothing, the defendant has received nothing, then there can be no unjust enrichment," Dawson said.

She said Bemis claimed violation of the Illinois Consumer Fraud Act though the Illinois Supreme Court held that breach of contract cannot constitute a violation of the act.

In response Barton said an assignment of insurance proceeds from the patient to Bemis entitled Bemis to payment.

"We're not alleging that they're a proper party because they issued the policy," he said. "We allege that they are a proper party because they took part in the breaching of the contract."

Barton said the policy provided reasonable and necessary charges.

"So if Dr. Bemis would have charged a million dollars to wipe somebody's nose – sure, that's not reasonable," Barton said.

"If Dr. Bemis charges something that is reasonable he deserves 100 percent," he said. "But again, what does that mean? The term itself is ambiguous."

"We're saying that they're not paying reasonable, and they're not paying reasonable because they are using biased computer software."

He said that if Crowder found no contract between Safeco and Bemis, he would plead consumer fraud in the alternative.

In response Dawson said Bemis never saw the policy providing reasonable and necessary payments.

She said Bemis saw only the explanation of review, or EOR.

"It clearly states, if you've got questions call this number," she said. "Here is what was reduced."

John McMullin, local counsel for Safeco, said plaintiffs wanted to make Bemis a third party beneficiary.

He said a third party beneficiary must be named in a contract or the contract must contain a strong clause to that effect.

At last Burke spoke up.

"They said that our complaint was about, if a doctor sends a bill he gets whatever – well, whatever he wants," he said.

"That is not what the complaint says. It's not what any of these med pay cases are about in this courthouse that we have been filing."

He said third party vendors sell themselves to insurers by cutting reimbursement rates.

"They are making a fraudulent representation to all of these providers on this EOR that they have in fact done a bona fide analysis of reasonable and customary charges," he said. "And we say that's false. They do not."

He warmed up for a tribute to class action philosophy.

"When you do those few bucks hundreds of thousands, if not millions, of times, you save tens if not hundreds of millions of dollars that you otherwise would have had to pay to doctors," Burke said.

In response Dawson asked Crowder to read the complaint.

Dawson said, "Mr. Burke can't replead his complaint orally before you today."

She said the complaint does not mention the explanation of review.

McMullin said the patient's assignment did not give Bemis any rights.

"What they are calling an assignment sure ain't an assignment based on anything I have ever seen," he said.

Crowder said, "The arguments have been excellent."

"This was something I had not had that much familiarity with before I read through everything," Crowder said.

She said she would reread everything.

"This is like my first time I'm reading all this stuff, so I'm game," she said. "I am at this moment in your world a blank slate."

As of Feb. 21, Crowder had not ruled.

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