Marco Ochoa Versus Brad Aldrete, Aldrete & Sons Shoring Co., Inc. and State Farm Mutual Automobile Insurance Company

MARCO OCHOA NO. 21-C-632

VERSUS FIFTH CIRCUIT

BRAD ALDRETE, ALDRETE & SONS COURT OF APPEAL
SHORING CO., INC. AND STATE FARM
MUTUAL AUTOMOBILE INSURANCE STATE OF LOUISIANA
COMPANY

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 793-366, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

December 08, 2021

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.

WRIT GRANTED
FHW
JGG
JJM

COUNSEL FOR PLAINTIFF/RELATOR,
MARCO OCHOA
Miguel A. Elias
Paula J. Ferreira
Adam M. Klock
Mario D. Zavala, Jr.
Graham Brian
Donald A. Mau
Olivia L. Kinnear
Rashim J. Khan
Robert E. Duhon

COUNSEL FOR DEFENDANT/RESPONDENT,
BRAD ALDRETE, ALDRETE & SONS SHORING CO., INC. AND STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Nicholas C. Gristina
Andrew G. West
Gordon P. Guthrie, III

WICKER, J.,

Relator-plaintiff, Marco Ochoa, seeks review of the district court’s August 10,

2021 judgment in favor of Respondents-defendants, Brad Aldrete, Aldrete & Sons

Shoring Co., Inc., and State Farm Mutual Automobile Ins. Co. The district court

granted Respondents’ Motion in Limine to exclude the total medical expenses billed

by Relator’s medical providers and to limit Relator to only offering at trial evidence

of the medical expenses paid to his healthcare providers by the third-party

funding/factoring company, HMR Funding, LLC (hereinafter “HMRF”). For the

foregoing reasons, we grant the writ, vacate the August 10, 2021 judgment, and

remand this matter for further proceedings.

Pertinent Factual and Procedural History

On June 28, 2018, Mr. Ochoa was involved in a motor vehicle accident with

Brad Aldrete. Mr. Ochoa had limited financial resources to cover the costs of his

medical treatment for his alleged accident-related injuries. Prior to filing suit, his

medical providers, One Spine Institute - Dr. Peter Liechty; Crescent View Surgery

Center; and Louisiana Rehab Products, Inc., entered into an agreement with a third-

party medical funding/factoring company, HMR Funding, LLC, for it to purchase

Mr. Ochoa’s outstanding medical bills at a negotiated or discounted rate in exchange

for an assignment to collect the billed amount of the medical expenses from Mr.

Ochoa and the proceeds of the resolution of his claim. To obtain Mr. Ochoa’s

consent to that agreement, a representative for each medical provider, One Spine

Institute - Dr. Peter Liechty; Crescent View; and Louisiana Rehab Products, Inc.,

entered into an Assignment Agreement1 with Mr. Ochoa detailing, inter alia, his

personal responsibility to each provider and the providers’ assignment of its rights

to HMRF. No representative from HMRF signed the agreement.

1
The Assignment Agreements were executed on October 19, 2018 by Mr. Ochoa and a representative of One Spine
Institute - Dr. Peter Liechty and Crescent View Surgery Center, respectively. On November 7, 2018, Mr. Ochoa and
a representative of Louisiana Rehab Products, Inc. executed an Assignment Agreement.

On March 21, 2019, Mr. Ochoa filed suit against Brad Aldrete, Aldrete &

Sons Shoring Co., Inc., and State Farm Mutual Automobile Ins. Co. for damages and

injuries sustained in connection with the June 28, 2018 automobile accident.

On June 29, 2021, Respondents filed a Motion in Limine seeking to exclude

evidence as to the billed amount of medical specials and to limit Relator to only

presenting the actual amounts paid to his medical providers. In connection with their

motion, Respondents attached the Lien and Receivables Purchase and Assignment

Agreements between HMRF and One Spine Institute - Dr. Peter Liechty; Crescent

View; and Louisiana Rehab Products, Inc.2 Also submitted were the Master

Purchase Agreement between Benchmark Rehabilitation Partners, LLC and

HMRF3; the 1442 deposition transcript of Deborah Lukhard, a corporate

representative of HMRF; three Assignment Agreements executed by Relator and his

medical providers, One Spine Institute - Dr. Peter Liechty; Crescent View; and

Louisiana Rehab Products, Inc., respectively.

In their motion, Respondents argued that HMRF purchased the account

receivables from Mr. Ochoa’s medical providers at a significantly discounted rate,

cumulatively less than 42% of the billed amounts, in satisfaction of the medical bills,

and thus, Mr. Ochoa is not responsible to pay any amount over that which was paid

by the third-party financing company, HMRF. Ultimately, Respondents asserted that

the collateral source rule is inapplicable to this matter.

On July 13, 2021, Mr. Ochoa filed an Opposition to Respondents’ motion. He

averred that HMRF’s involvement with his medical providers should be excluded

on the grounds that the collateral source rule and La. C.E. art. 409 prohibits the

admissibility of such information at trial. Mr. Ochoa relies on Whitley v. Pinnacle

2
The Assignment Agreements between HMRF and Mr. Ochoa’s medical providers were not attached to the writ
application or in the opposition thereto. Because we are limited to our review of the documents attached to the writ
application, we are unable to review and opine as to agreements absent from the writ application.
3
The Master Purchase Agreement between HMRF and Benchmark Rehab was not attached to the writ application or
in the opposition thereto. Thus, we are unable to review and opine as to the agreement absent from the application
since we are limited to review of the documents included with the writ.
2

Entm't, Inc. of Delaware, CV 15-00595-BAJ-RLB, 2017 WL 1051188 (M.D. La.

Mar. 20, 2017), to support his position that there is no windfall or double recovery

by him, and that the billed amount for his medical expenses are costs he will actually

incur. Later that same day, Respondents filed a Reply to Mr. Ochoa’s opposition

wherein they re-urged that the collateral source rule does not apply, that Hoffman4

and Bozeman5 are controlling, and that Mr. Ochoa never entered into an agreement

with HMRF or negotiated with his medical providers regarding a discounted

payment to satisfy the billed amount of his medical bills.

At the July 22, 2021 hearing, after considering the arguments of the parties

and the evidence introduced, the district court took the matter under advisement. On

August 10, 2021, the district court rendered judgment, with written reasons6, in favor

of Respondents and against Mr. Ochoa. Mr. Ochoa seeks supervisory review.

Law and Analysis

The trial court is granted broad discretion in its evidentiary rulings, which are

not to be disturbed on appeal absent a clear abuse of discretion. Moonan v. Louisiana

Med. Mut. Ins. Co., 16-113 (La. App. 5 Cir. 9/22/16); 202 So.3d 529, 534, writ

denied, 16-2048 (La. 1/9/17); 214 So.3d 869 (internal citations omitted). A motion

in limine presents an evidentiary matter that is subject to the great discretion of the

trial court. Id. On appeal, the court must consider whether the complained-of ruling

was erroneous and whether the error prejudiced the plaintiff's case, otherwise a

reversal is not warranted. La. C.E. art. 103(A). Id. The determination is whether the

4
Hoffman v. 21st Century North American Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702.
5
Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, 697.
6
In the district court’s August 11, 2021 reasons for judgment, a discussion of Respondents First Motion in Limine
filed on July 24, 2020 has been contained therein. The issues presented and the ruling of the district court made in
connection with that motion are not before this Court, and have not been considered upon review of the matter before
us.
3

error, when compared to the record in its totality, has a substantial effect on the

outcome of the case, and it is the complainant's burden to so prove. Id.

The central issue before this Court is whether the collateral source rule applies

to the difference between the amounts billed by Mr. Ochoa’s medical providers and

the discounted amounts paid by HMRF, a third-party medical funding/factoring

company, to those providers in satisfaction of receivables when Mr. Ochoa remains

liable for the billed amount.

We first address if, pursuant to the Assignment Agreements, Mr. Ochoa is

liable for the remaining balance of the billed invoices after HMRF acquired, by

paying a negotiated or discounted amount of the medical invoices, the account

receivables from the medical providers.

As preliminary matter, we address the nature of the contracts between the

medical providers and Mr. Ochoa, and its bearing on HMRF.

Assignments of right are governed by La. C.C.P. art. 698, which provides:

An incorporeal right which has been assigned, whether
unconditionally or conditionally for purposes of collection
or security, shall be enforced judicially by:
(1) The assignor and the assignee, when the assignment is
partial; or
(2) The assignee, when the entire right is assigned.

A cause of action in tort is both an incorporeal movable thing and property

that is owned under Louisiana law. See La. C.C. arts. 448, 461, and 473; Heyse v.

Fidelity & Casualty Co. of New York, 255 La. 127, 229 So.2d 724, 726 (La. 1969);

Conrad v. Swiss Chalet Picnic Grounds & Catering Service, 96–606 (La. App. 5

Cir. 12/30/96), 686 So.2d 1055. No particular form or words are necessary to

constitute a valid assignment. Katz v. Saruessen, 476 So.2d 16, 19 (La. App. 5 Cir.

1985).

Further, all rights may be assigned, with the exception of those pertaining to

obligations that are strictly personal. La. C.C. art. 2642. Strictly personal obligations

on the part of an obligee are those for which the performance is intended for the
4

benefit of the obligee exclusively. La. C.C. art. 1766. It is well settled that most

litigious rights can be assigned, transferred, or inherited and are therefore not strictly

personal. La. C.C. art. 2652; Guidry v. Theriot, 377 So.2d 319, 324 (La. 1979)

(victim's action for recovery of tort damages is not strictly personal).

Upon review of the documents attached to the writ application, the

Assignment Agreements executed by Mr. Ochoa and by the medical providers, One

Spine Institute - Dr. Peter Liechty, Crescent View, and Louisiana Rehab Products,

Inc., respectively, contain identical language and provisions. The pertinent sections

of the Assignment Agreements are as follows:

1. Assignment Of Proceeds And Acknowledgment of
Lien. Patient hereby irrevocably assigns, transfers, and
conveys to Medical Provider, and its assigns, all right, title
and interest in and to any proceeds recovered by Patient,
or on Patient’s behalf, arising out of any claim, settlement,
mediation, litigation, arbitration, verdict, judgment, or
other collection activity related to the Incident, regardless
of the source of such proceeds (collectively, the
“Proceeds”), in the Expense Amount. Patient
acknowledges and agrees that, notwithstanding the
existence of this Agreement, Patient remains directly
responsible for all medical expenses arising out of the
Services provided by Medical Provider to Patient, and the
parties’ entering into this Agreement does not constitute a
waiver by Medical Provider of any right to collect the
Expense Amount from Patient. This Agreement does not
make Medical Provider’s ability to collect the Expense
Amount, or Patient’s responsibility to pay the Expense
Amount, contingent on the receipt of the Proceeds or on
Patient’s prevailing on the claims arising out of the
Incident. This assignment is in addition to and does not
negate the lien Medical Provider, or its assigns, has on the
Proceeds, and the parties acknowledge the existence and
enforceability of such lien.

6. Medical Providers’ Intent To Assign Rights. Patient
acknowledges that Medical Provider intends to assign its
rights under this agreement to HMR Funding, LLC, a
Delaware limited liability company, or its affiliates
(collectively, “HMRF”). Patient agrees that such
assignment is permitted under this Agreement. Patient
agrees that upon such assignment, all obligations Patient
owes under this agreement, including without limitation
the obligation to pay the Proceeds, shall be obligations
owed to HMRF and that HMRF shall have all rights of
Medical Provider under this Agreement, including without
5

limitation the right to collect the Proceeds, remedies upon
Patient’s breach, and any right to indemnification.

Based on the language of the agreements, clearly One Spine Institute - Dr.

Peter Liechty, Crescent View Surgery Center, and Louisiana Rehab Products each

intended to assign its rights to HMRF to collect the Medical Lien and the remaining

balance of the billed amount for medical treatment received by Mr. Ochoa in

connection with the June 29, 2018 accident. Specifically, One Spine Institute - Dr.

Peter Liechty, Crescent View Surgery Center, and Louisiana Rehab Products

expressly and explicitly stated that Mr. Ochoa (the Patient) consents to “all

obligations Patient owes under this agreement, including without limitation the

obligation to pay the Proceeds, shall be obligations owed to HMRF and that HMRF

shall have all rights of Medical Provider under this Agreement, including without

limitation the right to collect the Proceeds, remedies upon Patient’s breach, and any

right to indemnification.” These words fully and unequivocally lead to the

conclusion that One Spine Institute - Dr. Peter Liechty, Crescent View Surgery

Center, and Louisiana Rehab Products assigned all of its rights to HMRF when a

representative of each provider along with Mr. Ochoa signed the agreements. We

find that One Spine Institute - Dr. Peter Liechty, Crescent View Surgery View, and

Louisiana Rehab Products rights were not strictly personal and therefore assignable.

We now address whether the Assignment Agreements contained any

provisions such that HMRF could hold Mr. Ochoa liable for the full amount of the

billed medical invoices for treatment rendered by the medical providers.

The interpretation of a contract is the determination of the common intent of

the parties. La. C.C. art. 2045. For purposes of interpreting a contract, a contract is

“ambiguous” when it lacks a provision bearing on the issue, its written terms are

susceptible to more than one interpretation, there is uncertainty as to its provisions,

or the parties' intent cannot be ascertained from the language used. Lomark, Inc. v.

LavigneBaker Petroleum, L.L.C., 12-389 (La. App. 5 Cir. 2/21/13); 110 So.3d 1107,
6

writ denied, 13-0654 (La. 4/26/13); 112 So.3d 848 (internal citations omitted). The

common intent of the parties to a contract is determined in accordance with the

general, ordinary, plain and popular meaning of the words used in the contract. Id.

(internal citations omitted). Although parol evidence is inadmissible to vary the

terms of a written contract, when the terms of a written contract are susceptible to

more than one interpretation, or there is uncertainty or ambiguity as to its provisions,

or the intent of the parties cannot be ascertained from the language employed, parol

evidence is admissible to clarify the ambiguity and to show the intention of the

parties. Id. (internal citations omitted).

In their opposition, Respondents make substantively and substantially the

same arguments they made before the trial court in their motion at issue.

Respondents contend that Mr. Ochoa’s medical providers were fully compensated

when HMRF purchased the account receivables at a significantly discounted rate of

42%, that is $120,250.00, when the outstanding bills totaled $286,070.50 – a

difference of $165,820.50. In its written reasons for judgment, the district court gave

significant consideration to the testimony of Deborah Lukhard, a corporate

representative of HMRF, who testified in a 1442 deposition that it has not “gone

personally after any of the patients for failure to pay the full medical expense.”

It is well established that “when the words of a contract are clear and explicit

and lead to no absurd consequences, no further interpretation may be made in search

of the parties’ intent.” La. C.C. art. 2046; Perfection Metal & Supply Co. v. Indep.

Supply of N.O. Inc., 97-800 (La. App. 5 Cir. 1/14/98); 707 So.2d 86 (internal

citations omitted). Testimonial or other evidence may not be admitted to negate or

vary the contents of an act under private signature, although evidence may be

admissible in the interest of justice to prove vices of content or subsequent oral

modifications of a contract. La. C.C. art. 1848; Id. (internal citations omitted).

7

Consideration of this evidence by the district court was improper to confirm

not if the right exists, but if HMRF actually exercises its right to litigate claims

against injured plaintiffs to recoup the unpaid difference between the amount HMRF

paid for the receivables and the amount billed by the medical providers. On its face,

the provisions and terms of the Assignment Agreements are unambiguous regarding

Mr. Ochoa’s responsibility to pay the total amount billed by his medical providers.

Thus, we find that pursuant to the language and provisions contained in the

Assignment Agreements executed by Mr. Ochoa and his medical providers, Mr.

Ochoa remains liable to HMRF for the full amount of the billed medical invoices for

treatment received in connection with the June 28, 2018 accident.

Next, we address whether the collateral source rule applies to the difference

between the amount billed by Mr. Ochoa’s medical providers and the discounted

amount paid by HMRF.

Louisiana courts embrace and apply the collateral source rule, which is a rule

of evidence and damages. Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692,

697. Under the collateral source rule, a tortfeasor may not benefit, and an injured

plaintiff's tort recovery may not be reduced, because of monies received by the

plaintiff from sources independent of the tortfeasor's procuration or contribution. Id.

at 698. Hence, the payments received from the independent source are not deducted

from the award the aggrieved party would otherwise receive from the wrongdoer,

and, a tortfeasor's liability to an injured plaintiff should be the same, regardless of

whether or not the plaintiff had the foresight to obtain insurance. Id.

In Bozeman, our Supreme Court explained that where a plaintiff's “patrimony

has been diminished in some way” to obtain collateral source payments, such as with

private insurance or Medicare, then a plaintiff is entitled to the benefit of the bargain

and may recover the full value of the medical services, including the “write-off”

amount. Id. at 705–06. However, a plaintiff may not recover “write-off” amounts as

8

damages where no consideration is provided by the plaintiff for the benefit. Id. at

705. Thus, there are two primary considerations for determining whether the

collateral source rule applies: “(1) whether application of the rule will further the

major policy goal of tort deterrence; and (2) whether the victim, by having a

collateral source available as a source of recovery, either paid for such benefit or

suffered some diminution in his or her patrimony because of the availability of the

benefit, such that no actual windfall or double recovery would result from

application of the rule.” Lockett v. UV Ins. Risk Retention Grp., Inc., 15-166 (La.

App. 5 Cir. 11/19/15), 180 So. 3d 557, 570; citing Bellard v. Am. Cent. Ins. Co., 980

So. 2d 654, 669 (La. 2008).

In Hoffman v. 21st Century North American Ins. Co., our Supreme Court

declined to apply the collateral source rule to an attorney-negotiated medical

discount. 14-2279 (La. 10/2/15), 209 So.3d 702. In Simmons v. Cornerstone

Investments, LLC, the Supreme Court reasoned that “allowing the plaintiff to recover

an amount for which he has not paid, and for which he has no obligation to pay, is

at cross purposes with the basic principles of tort recovery in our Civil Code.” 18-

0735 (La. 5/8/19); 282 So.3d 199, 205. Ultimately, it held that the collateral source

rule does not apply to a discount in the amount of medical expenses paid by workers’

compensation because “any recovery in addition to the reduced amount of medical

bills would be a windfall to Plaintiff and against the rationale behind the collateral

source rule.” Id. In other words, for the collateral source rule to apply to ‘write-off’

amounts of medical expenses that were billed but not paid because a third-party

negotiated to pay a lesser amount, the plaintiff must give some consideration for the

benefit obtained or otherwise suffer a diminution of patrimony.” Miciotto v. United

States, 270 Fed. Appx. 301, 303 (5th Cir. 2008) (per curiam) (citing Bozeman, 879

So. 2d at 705–06).

9

In the case at bar, the agreement between HMRF and One Spine Institute - Dr.

Peter Liechty, Crescent View Surgical Center, and Louisiana Rehab Products,

respectively, provides no discount to Mr. Ochoa. Further, Mr. Ochoa did not

negotiate any of the discounted amounts or sign a contract with HMRF. Respondents

admit this undisputed fact in their opposition to the writ application. Rather, the

medical providers assigned to HMRF the right to recover the full amount billed to

Mr. Ochoa, and he remains personally liable for the full amount billed. Mr. Ochoa’s

attorney has not negotiated a discount of the total amounts owed by him, which must

be passed on to the tortfeasor under Hoffman. In his writ application, Mr. Ochoa

contends that the total amounts billed is the appropriate measure of damages, despite

HMRF’s purchase of the receivables at a discounted rate, which represents HMRF’s

profit, because he is still required to pay the full costs of his medical expenses.

Respondents argue that the instant matter is similar to Hoffman because Mr. Ochoa

will not be responsible for the full amount of the medical bills. In support of their

contention, they submitted the 1442 deposition transcript of Ms. Lukhard, a

corporate representative of HMRF, who testified that HMRF has not pursued any

injured patients for failure to pay the full amount billed by the medical provider.

As previously discussed, parol evidence is inadmissible to vary the terms of a

written contract. Moreover, any discounts or write-offs obtained through

negotiations by a health insurer, Patterson v. State Farm Mut. Automobile Ins. Co.,

244 So. 3d 800, 803-04 (La. App. 2 Cir. 2017), or a plaintiff individually, Lockett v.

UV Ins. Risk Retention Grp., Inc., 180 So. 3d 557, 571-71 (La. App. 5 Cir. 2015),

are subject to the collateral source rule, and therefore are not deducted from

plaintiff’s recoverable medical expenses.

In Whitley, a federal magistrate court held that the exception to the collateral

source doctrine did not apply and denied a motion in limine to exclude evidence of

total amount billed for medical treatment, noting that “while [the funding company]

10

received a discount upfront, at most, this difference between the customary cost—

which plaintiff has to pay in full—and the discounted rate consists of the profit [the

funding company] receives for agreeing to finance the medical costs up-front.”

Whitley v. Pinnacle Entm't, Inc. of Delaware, 2017 WL 1051188 (M.D. La. Mar. 20,

2017). It reasoned that plaintiff is entitled to present evidence of the total costs she

is actually obligated to pay, which, under the terms of the operative financing

agreements, are the full billed costs. Id.

In the present case, just like the plaintiff in Whitley, Mr. Ochoa is responsible

for the full amounts billed by his medical providers pursuant to the Assignment

Agreements, and thus, he is entitled to present evidence of the total costs he is

obligated to pay. Accordingly, Respondents have failed to prove that Mr. Ochoa is

not liable for the amounts billed by his medical providers. Since Mr. Ochoa has not

actually received a benefit from the discount negotiated between the third-party

funding company and the healthcare providers, Respondents cannot subtract that

discount from a theoretical damage award to Mr. Ochoa. Respondents may not

introduce evidence regarding this financial arrangement to argue that Mr. Ochoa’s

recovery in this litigation should be limited to the discounted rate paid by HMRF to

Mr. Ochoa’s healthcare providers.

Next, we address whether Mr. Ochoa was in bad faith relative to the

customary and reasonableness of his medical expenses such that a diminution in his

bills was appropriate. In its written reasons for judgment, the district court reasoned

that because Mr. Ochoa acknowledged in the Assignment Agreements that the billed

amounts may differ from other patients who were not funded by a third-party entity,

the healthcare provider may receive a larger percentage of the amounts billed. The

district court explained that it considered an affidavit and report furnished by Nancy

Michalski, a registered nurse in California, who reviewed the medical bills of Mr.

Ochoa’s three medical providers.

11

Louisiana courts routinely state that the trier of fact commits reversible error

if it finds that the plaintiff has incurred past medical expenses because of the

defendant's negligence, but then does not award the plaintiff the full amount of those

expenses. Gunn v. Robertson, 01-347 (La. App. 5 Cir. 11/14/01); 801 So.2d 555,

564, writ denied, 02-0170 (La. 3/22/02); 811 So.2d 942, and writ denied, 02-0176

(La. 3/22/02); 811 So.2d 942. In Gunn, this Court explained that a “tortfeasor is

required to pay for medical treatment of his victim, even over treatment or

unnecessary treatment, unless such treatment was incurred by the victim in bad

faith.” Id. This Court also stated that a “trier of fact is in error for failing to award

the full amount of medical expenses” when proved by a preponderance of the

evidence. Id.

A jury could only reduce plaintiff's award for past medical expenses if it found

that not all of his injuries were caused by defendant's negligence or that he incurred

unnecessary treatment in bad faith. Simon v. Lacoste, 05-550 (La. App. 3 Cir.

12/30/05), 918 So.2d 1102, 1104-05. Bad faith exists where plaintiffs continue

treatment, despite having already been healed, for the sole purpose of increasing

their damages. Bass v. Allstate Ins. Co., 32,652 (La. App. 2 Cir. 1/26/00), 750 So.2d

460. Similarly, a plaintiff's deliberate exaggeration of the impact of a vehicle

collision and the extent any alleged injuries may constitute “bad faith.” Hamilton v.

Wild, 40,410 (La. App. 2 Cir. 12/14/05), 917 So.2d 695. On the other hand, courts

will not find bad faith on the part of a plaintiff simply because the trier of fact

disagrees with a course of treatment. Vines v. Wood, 34,555 (La. App. 2 Cir. 4/4/01),

785 So.2d 126, 131.

Upon review of the documents attached to the writ application, we point out

that neither the affidavit nor the report furnished by Nancy Michalski is contained

in the attachments of the writ application and in the opposition thereto. Nevertheless,

this Court will address the merits of Respondents’ contention since neither document

12

has any direct bearing on their assertions. Ultimately, Respondents apparently do not

object to the treatment received by Mr. Ochoa, but they dispute the costs of his

treatment.

Simply put, no such evidence of bad faith exists in this instant writ application.

Instead, Respondents aver that Mr. Ochoa was overcharged for treatment and

procedures performed at One Spine Institute - Dr. Peter Liechty and Crescent View

Surgery View. They further asserted that HMRF did not perform any investigation

to determine if the medical expenses billed are reasonable. Also, the district court,

in its written reasons for judgment, stated that Mr. Ochoa was in bad faith for

accepting treatment that may be billed at a different rate than billed for patients who

were not funded by a third-party entity.

We disagree. There is no evidence that Mr. Ochoa acted in bad faith by

continuing treatment, despite having already been healed, for the sole purpose of

increasing his damages. Respondents have not submitted any proof that Mr. Ochoa

has deliberately exaggerated the impact of the June 28, 2018 accident and the extent

of his alleged injuries in connection with same. Further, the testimony of Nancy

Michalski alone is insufficient to meet the standard set forth by Louisiana

jurisprudence regarding a plaintiff’s bad faith relative to the customary and

reasonableness of his medical expenses. Louisiana law is clear that “[e]ven if a tort

victim has been overcharged for medical treatment, the tortfeasor is liable for the

expenses unless they were incurred by the victim in bad faith.” Lair v. Carriker, 574

So.2d 551, 553 (La. App. 3d Cir. 1991) (internal citations omitted). Accordingly,

whether a treating physician overcharged a plaintiff for medical service is not within

the jury’s purview. See La. C.C. arts. 2315, 2315.6, 2316, and 2317.

Lastly, we address Respondents’ arguments regarding La. R.S. 22:18747 and

La. C.C. art. 2652. While Respondents did raise the applicability of La. R.S. 22:1874

7
La. R.S. 22:1874 provides, in pertinent part, as follows:

13

and La. C.C. art. 2652 in support of their motion in the district court below, the

district court did not address those arguments and the judgment makes no mention

of same. As a general rule, appellate courts will not consider issues that were not

addressed by the trial court. Stone v. Lakes of Chateau N., L.L.C., 16-529 (La. App.

5 Cir. 12/14/16); 208 So.3d 1053, writ denied, 2017-0087 (La. 2/24/17). In its

reasons for judgment, the district court merely referenced the applicability of La

C.C. art. 2652 relative to HMRF’s right to recovery in connection with Mr. Ochoa’s

medical providers’ assignment. Once the court made its findings regarding the issues

presented in the motion, any additional statements in its reasons for judgment

discussing whether defendants could prevail under certain theories of law were not

essential to the judgment. Thus, the court's comments on these issues are purely

obiter dicta, and are not binding on the parties. We further point out that La C.C. art.

2652 permits the debtor to extinguish an obligation when the litigious right is

assigned, but it has no application to transfers of rights before a suit is filed; it neither

authorizes nor prohibits such transfers, but is silent on the subject. King v. Illinois

Nat. Ins. Co., 43,237 (La. App. 2 Cir. 6/4/08); 986 So.2d 839, writ granted, 08-1491

(La. 10/10/08); 993 So.2d 1271, and aff'd, 08-1491 (La. 4/3/09); 9 So.3d 780. Here,

A. (1) A contracted health care provider shall be prohibited from discount billing,
dual billing, attempting to collect from, or collecting from an enrollee or insured
a health insurance issuer liability or any amount in excess of the contracted
reimbursement rate for covered health care services.
(2) No contracted health care provider shall bill, attempt to collect from, or collect
from an enrollee or insured any amounts other than those representing
coinsurance, copayments, deductibles, noncovered or noncontracted health care
services, or other amounts identified by the health insurance issuer on an
explanation of benefits as an amount for which the enrollee or insured is liable.
(3) However, in the event that any billing, attempt to collect from, or the collection
from an enrollee or insured of any amount other than those representing
copayment, deductible, coinsurance, payment for noncovered or noncontracted
health care services, or other amounts identified by the health insurance issuer as
the liability of the enrollee or insured is based on information received from a
health insurance issuer, the contracted health care provider shall not be in
violation of this Subsection.
***
B. No contracted health care provider may maintain any action at law against an
enrollee or insured for a health insurance issuer liability or for payment of any
amount in excess of the contracted reimbursement rate for such services. In the
event of such an action, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorney fees and court costs. However, nothing in
this Subsection shall be construed to prohibit a contracted health care provider
from maintaining any action at law against an enrollee or insured after a health
insurance issuer determines that the health insurance issuer is not liable for the
health care services rendered.

14

the Assignment Agreements were executed on October 19, 2018 and November 7,

2018, but suit was not filed until March 21, 2019, which was well after the

agreements had been executed. Thus, Louisiana's litigious redemption statute is

inapplicable in the instant matter.

Regarding La. R.S. 22:1874, the Balance Billing Act, it prohibits a health care

provider from collecting or attempting to collect amounts from an insured patient in

excess of the contracted reimbursement rate, a practice referred to as “balance

billing.” Leet v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par., 18-1148 (La. App.

1 Cir. 2/28/19); 274 So.3d 583, 588. An insured has an implied right of action under

the Balance Billing Act grounded in individual restitution where a health care

provider collects or attempts to collect amounts from the insured patient in excess of

the contracted reimbursement rate. Id; citing Anderson v. Ochsner Health System,

13-2970 (La. 7/1/14), 172 So.3d 579, 583-585. Moreover, where a health care

provider asserts a lien pursuant to La. R.S. 9:47523 for the full amount of

undiscounted charges, that practice constitutes “an action at law” prohibited by La.

R.S. 22:1874(B), thus entitling the insured injured person to a private right of action

under the express language of La. R.S. 22:1874(B). Id; citing Anderson, 172 So.3d

at 585.

We reject Respondents’ argument that La. R.S. 22:1874 is applicable under

the facts present in this matter, and find their reasoning and characterization of the

Balance Billing Act is misplaced. The act was designed to protect an insured injured

party who was enrolled with and paid premiums to a health insurance issuer, who

contracted with health care providers for discounted rates for medical treatment. In

Emigh, the Louisiana Supreme Court addressed the existence of a cause of action by

an insured against her insurer for a contracted provider's failure to bill her the

negotiated group discounts for health care costs. Emigh v. West Calcasieu Cameron

Hosp., 13-2985 (La. 7/1/14), 145 So. 3d 369, 374-75. The Supreme Court found that

15

the object of the contract between an insured and her insurer is not only to pay

covered medical bills, but also to secure reduced health care costs and tender

payment for those negotiated, discounted costs. Id.

In the present case, a health insurance insurer has not been involved in this

litigation. Moreover, HMRF is not a health insurance insurer that Mr. Ouchoa has

made payments to or insured by for his medical treatment. Mr. Ouchoa has not

presented any health insurance to pay for the medical treatment he has received at

One Spine Institute - Dr. Peter Liechty, Crescent View Surgical Center, and

Louisiana Rehab Products. Thus, we find that Respondents argument lacks merit.

In their opposition to the writ application, Respondents aver that they are

entitled to challenge Dr. Liechty’s credibility and opinion at trial by introducing into

the record his agreements with HMRF. As a general rule, appellate courts will not

consider issues raised for the first time on appeal, which are not pleaded in the court

below and which the trial court has not addressed. Stone v. Lakes of Chateau N.,

L.L.C., 16-529 (La. App. 5 Cir. 12/14/16); 208 So.3d 1053, writ denied, 2017-0087

(La. 2/24/17). This issue is not before this Court since Respondents did not brief this

issue in their Motion in Limine, and thus, we decline to address it.

For the reasons discussed herein, we grant this writ application and set aside

the district court’s judgment in favor of Brad Aldrete, Aldrete & Sons Shoring Co.,

Inc., and State Farm Mutual Automobile Ins. Co. We hold that (1) pursuant to the

language and provisions contained in the Assignment Agreements executed by Mr.

Ochoa and his medical providers, Mr. Ochoa remains liable to HMRF for the full

amount of the billed medical invoices for treatment received in connection with the

June 28, 2018 accident; (2) Mr. Ochoa is entitled to present evidence of the total

medical costs he is obligated to pay; (3) Brad Aldrete, Aldrete & Sons Shoring Co.,

Inc., and State Farm Mutual Automobile Ins. Co. may not introduce evidence

regarding the financial arrangement to argue that Mr. Ochoa’s recovery in this

16

litigation should be limited to the discounted rate paid by HMRF; and (4) Mr.

Ochoa’s medical expenses may not be reduced since there is no evidence that he

acted in bad faith. We further remand this matter for further proceedings consistent

with this opinion.

WRIT GRANTED

17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 8, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-C-632
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
DONALD A. MAU (RELATOR) MARIO D. ZAVALA, JR. (RELATOR) MIGUEL A. ELIAS (RELATOR)
ANDREW G. WEST (RESPONDENT) NICHOLAS C. GRISTINA (RESPONDENT)

MAILED
ADAM M. KLOCK (RELATOR) GORDON P. GUTHRIE, III (RESPONDENT)
GRAHAM BRIAN (RELATOR) ATTORNEY AT LAW
OLIVIA L. KINNEAR (RELATOR) 704 CARONDELET STREET
PAULA J. FERREIRA (RELATOR) NEW ORLEANS, LA 70130
RASHIM J. KHAN (RELATOR)
ROBERT E. DUHON (RELATOR)
ATTORNEYS AT LAW
4224 WILLIAMS BOULEVARD
KENNER, LA 70065