Consultants in Pain Med. v. Ellen Boyle Duncan

690 S.W.3d 739

CONSULTANTS IN PAIN MEDICINE, PLLC and David Blanton, Appellants

v.ELLEN BOYLE DUNCAN, PLLC and Ellen Boyle Duncan, M.D., Appellees

No. 04-22-00749-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 13, 2024

From the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 2022-CI-04954, Honorable Laura Salinas, Judge Presiding

APPELLANT ATTORNEY: Kayla Miller, Christopher M. Raney, Heidi Jean Gumienny, Gordon Rees Scully Mansukhani LLP, 1900 West Loop S., Ste. 1000, Houston, TX 77027, Susanne L. Burton, Burton Law Finn, P.O. Box 690801, San Antonio, TX 78269-0801.

APPELLEE ATTORNEY: Samuel V. Houston, III, Houston Dunn, PLLC, 4040 Broadway St., Ste. 515, San Antonio, TX 78209, Diana M. Geis, Herbert S. Hill, Curl Stahl Geis, PC, 700 N. St. Mary’s Street, Ste. 1800, San Antonio, TX 78205.

Sitting: Rebeca C. Martinez, Chief Justice, Liza A. Rodriguez, Justice, Sandee Bryan Marion, Chief Justice (Retired)¹

OPINION

Opinion by: Rebeca C. Martinez, Chief Justice

Appellees Ellen Boyle Duncan, PLLC ("Duncan, PLLC") and Ellen Boyle Duncan, M.D., sued appellants Consultants in Pain Medicine, PLLC ("CIPM") and David Blanton for defamation. Appellants filed a motion to dismiss the claim pursuant to the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-011. The trial court denied the motion and awarded appellees their attorney’s fees in a dismissal order. In two additional orders, the trial court allowed some contested affidavit testimony and disallowed other contested affidavit testimony submitted in connection with the matter. Appellants appeal from these orders. For the reasons that follow, we affirm the trial court’s three orders in all respects, save that we reverse and render judgment de- nying appellees’ request for attorney’s fees and costs.

Background

I. Appellants’ Evidentiary Issue

[1] In determining a TCPA motion a court "consider[s] the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). Appellants contend, in their last issue, that the trial court erred by excluding portions of Blanton’s affidavit in support of appellants’ TCPA motion and by allowing portions of Duncan’s affidavit in opposition to the motion. We consider appellants’ last issue first because our resolution of the issue frames our review of their remaining issues, which concern whether the parties met their respective TCPA burdens and the propriety of attorney’s fees.

We overrule the evidentiary issue because appellants have not established harm from any asserted evidentiary errors. Texas Rule of Appellate Procedure 44.1 provides, "No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of … probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1. Here, even if we review the TCPA motion and the award of attorney’s fees in a favorable light to appellants by considering (1) Blanton’s affidavit in full, (2) only the uncontested portions of Duncan’s affidavit, and (3) the other uncontested documents that the parties attach to their trial-court briefing, we must affirm the trial court’s denial of appellants’ TCPA motion. Additionally, regardless of whether we consider the matter with or without the contested evidence, our analysis as to whether the trial court erred by awarding attorney’s fees is unchanged. The contested evidence has no bearing on whether the TCPA motion was brought solely for delay, and the contested evidence, whether allowed or disallowed, does not alter our conclusion that appellants’ TCPA motion was "arguably meritable," so as to preclude the trial court from finding the motion frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(b). Therefore, we must overrule appellants’ evidentiary issue because appellants have not shown harm from any asserted evidentiary errors. See Tex. R. App. P. 44.1; nee also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 907 (Tex. 2000) (overruling evidentiary issue because, even if trial court erred by admitting evidence, "[t]he jury had sufficient evidence on which to base its verdict even disregarding the [challenged evidence]"); Straehla v. AL Glob. Servs., LLC, 619 S.W.3d 795, 805 n.4 (Tex. App.—San Antonio 2020, pet. denied) (overruling evidentiary issue in TCPA appeal because, assuming rulings were erroneous, appellate court could not conclude that any error probably caused the rendition of an improper judgment). We recite the facts directly below and within our analysis as if the trial court had not made the contested evidentiary rulings.

II. Factual Background

CIPM operates a pain-management medical practice and is comprised of several members who are either physicians or single-member professional limited liability companies owned by physicians. Blanton is CIPM’s CEO. Duncan is a physician and sole member of Duncan, PLLC, and Duncan, PLLC was a member of CIPM until it withdrew as a member, effective March 15, 2022.

By late 2020, Duncan and some of CIPM’s other physician members had begun using an amniotic stem cell product called "Fluid Flow" to treat pain. In the spring of 2021, Blanton advised CIPM members that Medicare was considering the exclusion of some amniotic stem cell treatments from reimbursement, and, around that time, the members of CIPM stopped using Fluid Flow.

In late 2021, Blanton and CIPM members began discussing the potential repayment of Fluid Flow claims that had been paid earlier by Medicare. According to Blanton, five of the then-six members of CIPM agreed to repay their respective claims, but Duncan did not. Duncan contends that she did not refuse to commit to repayment but that she first sought an independent audit.

On December 22, 2021, CIPM received a letter from Qlarant Integrity Solutions, LLC ("Qlarant"), which is a Unified Program Integrity Contractor ("UPIC") for the Centers for Medicare & Medicaid Services ("CMS"). The letter states that Qlarant "will be conducting a review of selected claims you have submitted to Medicare and/or Medicaid" and Qlarant "[had] chosen specific claims from a universe of claims … that met specific criteria." Em closed as an attachment was a list of nineteen claims selected for review. Blanton avers that all of these claims involve Fluid Flow.

Qlarant’s letter states:

Qlarant is authorized to reopen claims due to the rules cited in 42 CFR § 405.986. Good cause for reopening may be established when new and material evidence was not available or known at the time of the original determination or decision and may result in a different conclusion, or the evidence that was considered in making the determination or decision clearly shows on its face that an obvious error was made at the time of the determination or decision. The letter requests "documentation to support the medical necessity of services billed" and warns:

If the requested documentation is not received within 30 days, the service(s) will be considered nonverifiable, which may result in:

• A determination that an overpayment has been made.

• Any overpayment identified in a Statistically Valid Random Sample (SVRS) may be projected to the universe of claims processed during the time frame described above.

• A request for suspension of your Medicare payments in accordance with 42 C.F.R. § 405.371(a)(1).

• Revocation: Failure to complay [sic] with this medical records request could lead to revocation under 42 C.F.R. § 424.535(a)(10).

• A decision being made by the Office of Inspector General, DHHS, to exclude you and/or your organization from Medicare, Medicaid and all Federal health care programs in accordance with § 1128(b)(11) of the Social Security Act.

The letter concludes:

Our clinical staff will review the documentation you submit for each of the claims, to determine if the services billed are reasonable and necessary in accordance with Section 1862(a)(1)(A) of the Social Security Act and meet all other requirements for Medicare and/or Medicaid coverage. Along with our claims payment determination, we will make a determination of liability decision for services that are subject to the provisions of § 1879 of the Social Security Act ("the Act") and a determination in accordance with § 1870 of the Act (as towhether you are without fault for any overpayments).

You will be informed of the review results in our Medical Review Findings Letter. We will include a list of all claims reviewed, and the specific reasons for any denial or re-coding of the claims. You will be provided with an explanation of how any overpayment amount was determined, the reason you are responsible for the incorrect payment, and the amount of the overpayment.

On January 11, 2022, Blanton, on behalf of CIPM, wrote a response to Qlarant and enclosed the medical records Qlarant had requested. After a short summary of the enclosures, the letter states: "In addition, the following information is offered as we believe it may be relevant to your review and the resolution of this matter." Following the statement, under a heading titled "Voluntary Refunds Made," is an assertion: "CIPM has identified some overpayments and commenced the process for voluntary refunds and/or claim adjustments prior to the receipt of your letter. Some of the voluntary refunds may include claims in your review." Next follows a heading: "Independent Contracted Physician Refuses to Return Funds," and the text that follows provides in full:

CIPM is a Texas professional limited liability company which is wholly owned equally by six (6) managing members who each operate their own Division in CIPM. All collections are distributed to the Division that rendered the services. There is no professional practice unit or Division operating outside of these six Divisions of CIPM

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