Health Ins. Plan of Greater NY v Calvary Hosp.

[*1] Health Ins. Plan of Greater N.Y. v Calvary Hosp. 2004 NY Slip Op 51382(U) Decided on November 8, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2004
Supreme Court, New York County

HEALTH INSURANCE PLAN OF GREATER NEW YORK, Plaintiff,

against

CALVARY HOSPITAL, Defendant.



104064-04

Rosalyn Richter, J.

In 1999, the New York Legislature enacted the Access to End of Life Care Law, codified at Public Health Law § 4406-e and Insurance Law § 4805 ("End of Life Care Law"). This law, as amended, provides that every health care plan that provides coverage for acute care services shall, if certain conditions are met, provide enrollees who are diagnosed with advanced cancer with coverage for acute care services at an acute care facility specializing in the treatment of terminally ill patients. Such coverage is mandated where the patient's attending health care practitioner certifies that the patient has no hope of reversal of primary disease and fewer than sixty days to live, and where the attending health care practitioner, in consultation with the medical director of the acute care facility, determines that the patient's care would appropriately be provided by the facility.

In this declaratory judgment action, plainitff Health Insurance Plan of Greater New York ("HIP"), a health care plan, seeks a declaration that the patient's "attending health care practitioner", as referenced in the statute, may not be employed by or compensated by the acute care facility that will ultimately be caring for the patient. The complaint alleges that following enactment of the End of Life Care Law, defendant Calvary Hospital ("Calvary"), a voluntary not-for-profit acute care facility specializing in palliative care for terminally ill cancer patients, has taken the position that it is entitled to "self-refer" patients. In other words, HIP maintains that Calvary believes that one of its own doctors can make the requisite certification under the End of Life Care Law in situations where the patient's attending health care practitioner at another hospital declines to do so, or where the patient does not already have an attending doctor.

The complaint sets forth in detail the facts underlying the case of a patient named MH, a former HIP enrollee and one of Calvary's alleged self-referrals. According to the complaint, on August 12, 2003, MH was hospitalized at Montefiore Hospital and Medical Center and diagnosed by a Montefiore physician as suffering from cancer. The complaint alleges that MH was subsequently transferred to Calvary on August 16, 2003 without the requisite certification by the Montefiore physician or any of MH's prior attending physicians under the End of Life Care Law. HIP contends that on August 29, 2003, after repeated written and oral requests, Calvary finally faxed to HIP a copy of a pre-printed "self-referral" form for MH. This form, which requested MH's admission to Calvary, was addressed to Calvary's Medical Director and was signed by a physician [*2]alleged to be employed by Calvary.

On September 25, 2003, HIP served notice of its intention to appeal Calvary's decision to admit MH under the End of Life Care Law. Pursuant to the provisions of the Public Health Law, HIP then initiated an expedited external appeal with the appellate agent designated to review such matters.[FN1] On November 7, 2003, the appellate agent upheld HIP's decision and concluded that MH's admission to Calvary was not medically necessary because MH was terminal and his treatment at Calvary was merely palliative.[FN2] The appellate agent's decision did not address the issue of Calvary's purported self-referral. On February 12, 2004, MH died.

The complaint states that, notwithstanding the appellate agent's decision, Calvary has engaged in tortious conduct in an effort to "intimidate and coerce [HIP's] adherence" to Calvary's purported interpretation of the End of Life Care Law. In particular, HIP contends that Calvary importuned WNBC-TV to broadcast a news segment on March 10, 2004 related to MH's care at Calvary. HIP alleges that during the broadcast, Calvary made false and defamatory statements about HIP's handling of the MH matter. Specifically, HIP maintains that Calvary staff stated that HIP was perpetuating a "rip-off", was improperly diverting money from HIP subscribers, was breaking the spirit of the End of Life Care Law and are "at the point" of actually breaking that law. Because of Calvary's alleged behavior, HIP seeks a declaration that "self-referrals" are not permitted by the End of Life Care Law. No court has addressed the merits of the issue raised by HIP here.

In this motion, Calvary moves for summary judgment dismissing the complaint on the grounds that the MH matter is moot and there is no current justiciable controversy between the parties requiring an interpretation of the End of Life Care Law. Calvary further argues that HIP's request for declaratory relief is premature and impermissibly seeks an advisory opinion from this Court. HIP maintains that the matter is not moot and that a justiciable controversy exists based on the statements made by Calvary's representatives during the WNBC-TV news broadcast and other conduct on Calvary's part. HIP also argues that an exception to the mootness doctrine applies because the parties' dispute is likely to recur and will otherwise evade judicial review. HIP also cross-moves for summary judgment granting the declaratory relief sought.

Under CPLR § 3001, a court may render a declaratory judgment as to the "rights and other legal relations of the parties to a justiciable controversy". A justiciable controversy exists only where there is an actual controversy affecting the parties' rights. Bolt Associates v. Diamonds-In-The-Roth, Inc., 119 AD2d 524 (1st Dept. 1986); United Water New Rochelle, Inc. v. City of New York, 275 AD2d 464 (2d Dept. 2000)("[a] cause of action for declaratory relief must present a concrete, actual controversy for adjudication"). In other words, there must be a "real dispute between adverse parties , involving substantial legal interests, for which a declaration of rights will [*3]have some practical effect." Downe v. Rothman, 215 AD2d 716, 717 (2d Dept. 1995). Thus, a plaintiff is not entitled to a declaratory judgment absent concrete legal issues presented in actual disputes, not abstractions. Winkler v. Spinnato, 134 AD2d 66 (2d Dept. 1987).

Moreover, a declaratory judgment should not be granted where it would be nothing more than an advisory opinion. Cuomo v. Long Island Lighting Co., 71 NY2d 349 (1988); First State Insurance Company v. J & S United Amusement Corp., 114 AD2d 812 (1st Dept. 1985). It is well-settled that courts are not permitted to render advisory opinions, determine abstract, moot or hypothetical questions, or issue decisions that "can have no immediate effect and may never resolve anything". New York Public Interest Research Group v. Carey, 42 NY2d 527, 531(1977); Matter of the Liquidation of Ideal Mutual Insurance Company v. Ruedlinger, 174 AD2d 420 (1st Dept. 1991). Thus, "the 'courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass.'" Phoenix Tenants Association v. 6465 Realty Co., 119 AD2d 427 (1st Dept. 1986), quoting New York Public Interest Research Group v. Carey, 42 NY2d at 531.

Applying these principles, the Court concludes that this action must be dismissed because the parties' dispute is moot and does not present an actual justiciable controversy. HIP's request for a declaratory judgment stems from a dispute over whether Calvary's care and treatment of a single patient, MH, who is no longer alive, met the requirements set forth the End of Life Care Law. But MH's case ended in November 2003, when the external appellate agent upheld HIP's refusal to pay for MH's care. Since the time HIP prevailed on its external appeal, Calvary has not brought any action against HIP for the value of the services it provided to MH, and has absorbed the cost of the treatment, which Calvary estimates to be over $100,000. Indeed, HIP does not claim that it paid for or expects to receive any further demands from Calvary to pay for MH's care since HIP prevailed in the external appeal. Thus, since there is no pending claim or dispute between the parties concerning HIP's obligation to reimburse Calvary for the care and treatment of MH, HIP's request for a declaratory judgment is moot.

Nevertheless, HIP argues that a controversy exists because Calvary has taken the position that it is entitled to "self-refer" patients by having one of its own employees make the requisite certification under the End of Life Care Law. However, in its answer, Calvary denies that it self-refers patients and affirmatively states that Calvary does not take the position that it may comply with the End of Life Care Law by self-certifying patients for admission. And in an affidavit submitted in support of its motion, Calvary states that when a hospital inpatient is being referred to Calvary for inpatient admission under the End of Life Care Law, the medical certification required under the law should be made by a practitioner who is providing care to the patient at the referring hospital.

In response, HIP submits no evidence that Calvary in fact takes the position that it is entitled to self-refer patients under the End of Life Care Law. Although HIP contends that Calvary's position was made clear in the MH case, Calvary has submitted evidence showing that physicians from Montefiore Hospital referred MH to Calvary. In any event, the fact that Calvary may have engaged in one instance of self-referral in connection with a case that concluded a year ago does not mean that there is a present controversy between the parties.

In essence, HIP seeks a determination as to how the End of Life Care Law should be interpreted in a future hypothetical case that may or may not occur. However, this Court can not [*4]render such an advisory opinion. See Furlong v. New York State Workers' Compensation Board, 97 AD2d 357 (1st Dept. 1983)(("[i]nasmuch as the dispute between the parties is dependent upon the possible happening of a future event, which may not occur, the request for declaratory judgment relief is at best premature and would embroil the court in a determination which would amount to no more than an advisory opinion"). In the absence of a present controversy between the parties, this action should be dismissed.

HIP unpersuasively argues that Calvary "negated" and "revived" mootness when it publicly accused HIP of violating the letter and spirit of the End of Life Care Law in the WNBC-TV news broadcast, which was broadcast a month after MH's death. To begin, HIP cites no case law to support its proposition that a moot case can be "negated" or "revived" by remarks made during a television show. The mere fact that Calvary expressed its dissatisfaction with HIP's actions in connection with the MH case can not serve to revive a matter that ended months before when the external appellate agent upheld HIP's decision. Indeed, such an argument, if accepted, could have far-reaching consequences and prevent public dialogue and commentary on legal disputes that have technically ended. Nor is there any merit to HIP's assertion that idle cocktail party chatter between HIP's CEO and Calvary's CEO makes this controversy justiciable, particularly in light of the fact that the conversation made no reference to self-certification. Furthermore, there is absolutely no indication in this record that this cocktail party conversation led to any further legal or administrative action on the MH case.

Finally, HIP argues that even if the controversy is moot, it is nevertheless justiciable. It is true that, in certain instances, a court can grant declaratory relief on matters that are moot. In order to do so, it must find the following factors: (1) repetition of the controversy between the same parties or others is likely; (2) the case involves a phenomenon typically evading judicial review; (3) the case involves significant or important questions not previously passed upon; and (4) the case involves a matter of public importance. See In re Storar, 52 NY2d 363, 369-70 (1981). HIP has failed to establish the threshold requirement that the controversy between the parties is likely to recur. In support of this ground, HIP merely states that Calvary will in the future seek reimbursement for services rendered to patients. However, HIP has not submitted any evidence in admissible form to show that the specific controversy in issue i.e., Calvary's self-referring patients under the End of Life Care Act is likely to recur. Indeed, aside from the MH matter, HIP has not submitted any evidence that Calvary, or any other acute care facility, has engaged in self-referral.[FN3] Calvary, on the other hand, asserts that the MH case is the only external review ever pursued by HIP against Calvary under the End of Life Care Law.[FN4]

Nor has HIP established that any future controversy will evade review. To the contrary, HIP

specifically acknowledges that it can bring an action for restitution against Calvary should Calvary engage in the practice of self-referral in connection with a future patient. Clearly, in such a restitution action, the court can rule on whether the End of Life Care Law permits self-referrals. In addition, any hypothetical future instance of purported self referral would be subject to the same [*5]external appeal process HIP successfully utilized in the MH matter. The parties do not address whether a court action to challenge the results of an external appeal is possible under the law and no Court has ever decided that issue. Thus, no precedent exists to establish that HIP could not bring a court challenge to the decision of an appellate agent if it turned on the issue of self-certification. Thus, HIP has failed to convince the Court that the exception to the mootness doctrine is applicable here. Accordingly, it is

ORDERED that Calvary's motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed and the Clerk is directed to enter judgment accordingly;[FN5] and it is further

ORDERED that HIP's cross-motion for summary judgment on the merits is denied in light of the dismissal of the action.

This constitutes the decision and order of the Court.

November 8, 2004

Justice Rosalyn Richter Footnotes

Footnote 1: Public Health Law § 4406-e[3] provides that if the health care plan disagrees with the admission of or provision or continuation of care for the patient at the acute care facility, the health care plan shall initiate an expedited external appeal. The statute provides that the decision of the external appellate agent is binding on all parties.

Footnote 2: Although not before the Court, it appears as if the appellate agent misconstrued the applicability of the End of Life Care Law, which mandates, under certain conditions, such palliative care for terminally ill patients.

Footnote 3: Since no other facility is a party to this action, the Court cannot determine what they are doing.

Footnote 4: Although HIP disputes this assertion, it has not provided this Court with any specific cases, other than the MH matter, where Calvary has engaged in self-referral.

Footnote 5: Where dismissal of a declaratory judgment is not on the merits, but on procedural grounds, there is no need to declare the rights of the parties. Compare Combustion Engineering, Inc. v. Travelers Indemnity Company, 53 NY2d 875 (1981), with Lanza v. Wagner, 11 NY2d 317 (1962).