UPDATE ON IMPORTANT FEDERAL AND STATE CASES INVOLVING MEDICAL DEBT AND 440.13
By Paul A. Herman, Esq., Joel A. Brown, Esq., & Robert A. Friedman, Esq.
February 18, 2021
The following is an update of two recent important decisions involving both state and federal debt collection statutes as they apply to cases in which an injured employee received a collection notice/bill for medical services provided for the accident and injuries occurring in the course and scope of employment. As the attorney of record on both the trial and appellate levels we are proud that these decisions are positively impacting the rights of injured workers against medical providers/creditors and debt collectors who attempt to collect payment from them in violation of F.S. §440.13.
Moreover, these medical debt collection practices have an enormous impact on the Florida Workers’ Compensation industry. According to information obtained from the Office of the Judge of Compensation Claims (OJCC) in the Division of Administrative Hearings (DOAH), nearly 30% of first Petitions for Benefits (PFBs) and 11.5% of all PFBs filed in Florida from January 1, 2015 through December 31, 2020 involved at least one collection notice or bill sent by a medical provider to an injured employee. All sources agree that this practice which to date has remained unchecked, has been costly to the industry in time, resources and payment of benefits and fees. Most of these collection notices were sent in violation of Section 440.13 and therefore violated State and/or Federal collection laws, the FCCPA and FDCPA respectively. Florida’s FCCPA is more liberal than the federal FDCPA in that it applies to all creditors while the FDCPA applies to debt collectors only. Both statutes call for the imposition of a statutory penalty, actual damages, punitive damages in certain cases and the payment of reasonable attorney’s fees and costs in prosecuting the case.
At the federal level, our firm prevailed at the 11th Circuit Court of Appeals in an unpublished opinion upholding the groundbreaking FDCPA case in the Southern District of Florida on orders granting our motion for summary judgment and dismissing the debt collector’s motion for reconsideration. This was a case of first impression and the only case of its kind involving a state workers’ comp statute and the FDCPA at this level in the country. Last year was the decision in Kottler v Gulf Coast Collection Bureau Inc. 460 F.Supp.3d 1282 (2020) with a well thought out and thorough ruling from Judge Bloom in which the least sophisticated consumer standard must apply in that if the claimant believes that the collection notice is just that, an attempt to collect a medical debt for services for a comp accident and injuries, then that is what it is. More importantly, the debt collector cannot raise the defense of a bona fide error if they rely exclusively on the information provided by the original creditor as to the validity and nature of the debt without doing anything more. A debt collector asserting the bona fide error defense must show by a preponderance of the evidence that its violation…: (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error. This seems to apply to virtually all creditors, whether they be original medical service providers or third-party debt collectors. The decision was appealed to the 11th Circuit Court of Appeals, usually the deathbed for consumer cases.
During the pendency of the Kottler appeal, an 11th Circuit opinion came out that raised the bar for satisfying the federal Article III standing requirement in FDCPA cases, Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990 (11th Cir. 2020), was published on July 6, 2020 and. Yet we were able to navigate those swirling waters through testimony, careful pleading and litigation strategies. Although Trichell poses extreme risks to any FDCPA cases that are not well executed and yet the 11th Circuit (D.C. Docket No. 0:19-cv-61190-BB) upheld Kottler in a straightforward five-page unpublished decision in which the 3-member panel reviewed de novo both the standing and summary judgment in favor of our client.
Days later, with the 11th Circuit decision cited as supplemental authority, the Honorable Oscar Rodriguez-Fonts, Circuit Court Judge in the 11th Circuit for Miami Dade County dismissed a motion to dismiss the case (pending since October 2020) in the class action case of Rocha v Baptist Health South Florida, Inc. (case no: 2020-004343-CA-01 section: CA27) with similar issues to Kottler but instead involving a violation of the Florida consumer collection practices act (FCCPA). The stage is now set for certification of the class and the impact could be dramatic.
The impact may even be more far reaching as our co-counsel in Rocha is also part of the team that procured the 2nd DCA’s decision in Davis v Sheridan Healthcare as the single-most important development in workers’ comp law and state court FCCPA cases. Davis held that circuit courts have jurisdiction to hear debt collection harassment lawsuits brought by injured workers against workers comp medical providers. The 2nd DCA certified the issue to the Florida Supreme Court on a question of great public importance in two consolidated class actions, Laboratory Corporation of America v Patty Davis, and Sheridan Healthcare Inc. v. Patty Davis, Case Nos.: SC19-1923 and SC19-1936. Importantly, the Worker’s Compensation Section of the Florida Bar filed an amicus brief in support of the injured worker on the cases’ lynchpin issue. Oral argument was already held and though it seemed to go well for the claimant, the filing of this supplemental authority we hope will push the Court to uphold the 2nd DCA ruling.
For those of you who have entrusted your clients and cases to our care, and understand the nuanced work involved in putting these matters together for successful prosecution, we thank you. We also hope this article solidifies your faith in the job we have done to date and will continue to do moving forward with the knowledge and expertise in this special area of the law that protects the individual claimant from unnecessary and unwarranted debt collection and credit reporting. Additionally, it is nice to see that the legal world outside the practice of workers comp realizes the inherent protections afforded to injured employees by the Florida Workers’ Comp Act to be free from harassment and fear of financial ruin as this is something they are neither responsible for nor have any control in stopping.
Paul A. Herman, Esq.
Consumer Advocates Law Group, PLLC
Joel A. Brown, Esq. and Robert A. Friedman, Esq.
Friedman & Brown, LLC.