The Georgia Court of Appeals revived a putative class action claiming a Macon hospital placed a lien for unreasonably high medical charges on a personal injury plaintiff's settlement.

The three-judge panel ruled that the man's claims for fraud, racketeering and other claims were supported by enough evidence to survive a motion to dismiss. 

The suit involves similar claims to another class action pending in the Georgia Supreme Court against a Columbus hospital and involves many of the same plaintiffs lawyers.

Plaintiff Francis Clouthier accused the Medical Center of Central Georgia of knowingly assessing inflated rates and attempting to extract more than a reasonable charge from him.

The hospital had filed a lien based on its "chargemaster" or "sticker price" rates, which reflect fees for particular services that do not reflect any discounts or reductions.

A trial judge ruled that, because MCCG had not overtly sworn that its charged rates were "reasonable" as required by Georgia's medical lien statute, it did not say anything false. Accordingly, the judge threw out Clouthier's claims.

But the Sept. 20 opinion by Presiding Judge Yvette Miller, with concurrence of Judges Brian Rickman and Clyde Reese, said the law requires that a patient be provided "verified statement" detailing the amount owed.

"Conceivably," wrote Miller, "evidence may be introduced that MCCG did the above while knowing that it would not actually be able to recover on the lien in the amount claimed and also knowing that Clouthier cannot freely spend the settlement money while the lien is in effect."

"We emphasize that we are at the motion-to-dismiss stage, prior to the completion of discovery, and we are not considering whether Clouthier's claims will ultimately prove meritorious or the likelihood that Clouthier will indeed be able to introduce evidence to support his claims," Miller added.

Clothier is represented by Charles Gower, Charles Gower Jr., Miranda Brash and Shaun O'Hara of Columbus' Charles A. Gower P.C; Michael Terry, Frank Lowrey IV and Michael Baumrind of Bondurant, Mixson & Elmore; and William Noland of Macon's Noland Law Firm.

In an email, Terry said their client "appreciates the careful and scholarly opinion written by the Court of Appeals."

Terry noted that Georgia appellate precedent supports the proposition that the comparative rates hospitals charge for the same procedure are relevant to discerning their reasonableness.

"Hopefully," said Terry, "the hospitals will take seriously the appellate courts' repeated pronouncements and do the right thing."

MCCG lawyer Roy Meeks Jr. represents the hospital with Taylor English Duma colleague Amanda Spieir.  

"Of course we are disappointed, but not totally surprised by the ruling in light of comments from the bench at oral argument," said Meeks via email. "Judge Miller had just authored the Bowden opinion [the one now before the Supreme Court] in November of 2018, so we knew we had an uphill battle."

Meeks said an appeal is likely, but "no final decision will be made until we see if the Supreme Court provides further guidance in the pending Bowden case before our appeal deadline runs."

According to the opinion, Clouthier was involved in a tractor-trailer crash in 2016 and taken to MCCG's emergency room for treatment.

Learning that there might have been a third party responsible for the wreck, the hospital filed a medical lien for $56,856 on "any and all causes of action accruing to [Clouthier] on account of injuries giving rise to such causes of action and that necessitated hospital care."

Clouthier settled the case confidentially, then filed a complaint and petition for class action against the hospital in Bibb County State Court.

Clouthier claimed MCCG knew the chargemaster rate was not reasonable and also accused the hospital of fraud, negligent misrepresentation and violation of Georgia's Racketeering Influenced and Corrupt Organizations law. 

MCCG filed a motion to dismiss, arguing that its lien comported with the law and did not contain any false information.

Bibb County State Court Chief Judge Jeffrey Hanson found that Clouthier's claims required that MCCG be shown to have engaged in "false swearing" or "negligent misrepresentation" as to whether its charges were reasonable to survive dismissal. 

At the appeals court , Miller noted, "The trial court reasoned that the language of the lien affidavit did not show that MCCG ever swore that the lien amount was reasonable and that MCCG therefore never made a false statement" and dismissed the case. 

In reversing Hanson, she cited several opinions supporting the theory that overt acts may not be necessary to support a finding of fraud, and that even strategic silence can be a fraudulent act. 

"Thus, MCCG need not have overtly and falsely sworn that its claimed lien amount was reasonable in order for Clouthier to have pleaded a fraud claim, and the trial court erred in ruling otherwise," Miller said.

The same allegations underpin the negligent misrepresentation claims, which were also wrongly dismissed, she said. 

As to the racketeering claims, "[e]ven assuming that MCCG did not make a false statement in its lien affidavit, a careful examination of Clouthier's complaint reveals that he stated a claim for relief under Georgia's RICO Act."

"Theft by deception, or even an attempt thereof, may constitute racketeering activity," under the law, she said. 

Clouthier claimed that MCCG "has a practice of filing sworn liens for the chargemaster rates, that he and other putative class members had no knowledge of this scheme," and that the hospital "did not disclose to them that it only collected approximately 29 percent of the chargemaster rates from nearly all of its other patients," Miller wrote. 

"In sum, it does not appear to a legal certainty that Clouthier would be entitled to no relief under any state of facts which could be proved in support of his claims," the opinion said. 

Miller also penned a 2-1 opinion last year allowing a similar class action to proceed against the Columbus Medical Center; the Georgia Supreme Court has yet to rule in that case.