Commonwealth of Kentucky Court of Appeals

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1 RENDERED: AUGUST 30, 2013; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR JOSEPH B. ZEHNER, M.D. APPELLANT APPEAL FROM LOGAN CIRCUIT COURT v. HONORABLE TYLER L. GILL, JUDGE ACTION NO. 10-CI TERRI STANLEY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, COMBS, AND LAMBERT, JUDGES. COMBS, JUDGE: Joseph B. Zehner, M.D., appeals from the judgment of the Logan Circuit Court entered March 9, After our review, we affirm. In November 2007, Terri Stanley agreed to provide billing services for Zehner s medical practice. Stanley used medical billing software known as Medisoft to integrate necessary data and to submit the claims (mostly Medicare and Medicaid) electronically.

2 In December 2009, Zehner hired Jamie L. Zehner, his daughter, as a part-time employee of the practice. Jamie Zehner allegedly uncovered numerous billing errors and omissions. Stanley did not provide billing services to the practice after February A dispute arose concerning Stanley s compensation for January and February 2010, and the parties were unable to resolve it. As a result, Stanley filed a complaint against Zehner in Logan District Court in September 2010 seeking to collect $3, under the terms of the parties written agreement. In December 2010, Zehner, pro se, filed a complaint against Stanley in Logan Circuit Court. In his complaint, Zehner alleged that Stanley had converted his property to her own use by retaining electronic data generated by the accounting software program. Zehner also alleged that Stanley had breached the parties contract by failing to file claims on a timely basis and by failing to return all the billing and non-billing data that she had collected in conjunction with her use of Medisoft. Finally, Zehner sought to collect what he termed Brandt fees since he had expended time and money for the good of all practicing physicians. 1 Complaint at 3. Stanley answered the complaint and denied the allegations against 1 Brandt fees refer to attorney fees recoverable as tort damages in California. They arise from an insurer s wrongful conduct that compelled an insured to retain an attorney to obtain benefits due under an insurance contract. See Brandt v. Superior Court, 693 P.2d 796 (1985). -2-

3 her. She filed a counterclaim against Zehner seeking compensatory and punitive damages. After several delays, a trial by jury was held on January 23 and January 24, Zehner was not represented by counsel. After a brief period of deliberation, the jury found in Stanley s favor. In the court s judgment entered on March 9, 2012, Stanley was awarded damages of $3,624.56, plus court costs, and $10, in attorney s fees. Zehner s motion for a new trial was denied. This appeal followed. Zehner s appellate brief does not conform to the substantive requirements of Kentucky Rule[s] of Civil Procedure (CR) since it fails to provide supportive references to the record and statements indicating whether the issues cited were properly preserved for review and, if so, in what manner. Although there are many other deficiencies in the brief filed by Zehner, we have nonetheless elected not to strike his brief pursuant to the provisions of CR enabling us to do so. However, as a result of these patent deficiencies, we do elect to review the issues raised in the brief only for manifest injustice. Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010). Zehner argues first that the trial court erred by failing to grant the motion to continue which he filed on the morning of trial. In his motion, Zehner explained that each of the three witnesses whom he intended to call was -3-

4 unavailable. However, one of the three witnesses testified at trial; so there was no prejudice with respect to her testimony. While the record indicates that the second witness was scheduled to testify in another proceeding, her testimony in the other case was set for the day after the Logan Circuit Court proceedings had concluded. Zehner should have been aware of his witnesses potential conflict far in advance of the morning of trial. The third witness was Zehner s daughter. We are not persuaded that the testimony which she might have presented was essential to his case, and Zehner has not specified if or how it would have been critical. The trial court has broad discretion to grant or deny a continuance. Grant v. Dortch, 993 S.W.2d 506, 508 (Ky. App. 1999), citing Pelfrey v. Commonwealth, 842 S.W.2d 524, 525 (Ky.1993). The Logan Circuit Court did not abuse its considerable discretion by denying Zehner s motion to continue. Next, Zehner argues that the trial court erred by failing to permit the jury to review certain guidelines prepared in 1998 by the Office of Inspector General of the Department of Health and Human Services. These guidelines were developed to assist healthcare providers and third-party billing companies in avoiding or curing billing fraud and abuse. The guidelines addressed numerous issues, including: (1) the potential for coding abuses in the claims submission process; (2) policies and procedures regarding the creation, distribution, retention, and destruction of documents, and (3) procedures pertaining to communication -4-

5 between the healthcare provider and the third-party billing entity. Nothing in Zehner s brief indicates that he was prohibited from asking questions with respect to Stanley s familiarity with these guidelines. The terms of the parties agreement indicate that Stanley was well aware of the guidance provided to third-party medical billing companies by the Department of Health and Human Services. Next, Zehner contends that the court erred by failing to instruct the jury that it could award punitive damages against Stanley. Since the jury found in Stanley s favor, we cannot agree that Zehner could have been prejudiced by this alleged error. Zehner also contends that the court erred by deleting the word digital from the final jury instruction pertaining to Stanley s alleged conversion of patient account information. We have reviewed the disputed instruction, and we conclude that there was no prejudicial error. Finally, Zehner contends that the parties contract as well as the judgment are voidable, claiming that Stanley misrepresented to the jury that she was unable to make clinical coding decisions and that she misrepresented the extent to which she agreed to do more than simply process bills that had already been coded by Zehner or his staff. Zehner contends that Stanley s testimony with respect to these issues rendered her incompetent to fulfill her contract and undermined the validity of the judgment. We disagree. -5-

6 Stanley s testimony was critical to an understanding of the parties agreement. Stanley was under no obligation by law or by their contract to code bills for her client s practice. Instead, under the terms of the contract, Stanley agreed to: enter the patient and insurance information provided by Zehner or his staff; load the applicable CPT (a coding system that describes medical, surgical, and diagnostic services) and ICD-9 (a coding system that describes signs, symptoms, injuries, diseases, and conditions) codes; file Medicare, Medicaid, and other insurance claims electronically or otherwise; post charges and payments to patient accounts; revisit accounts receivable; refile insurance rejections; stay alert to fraud and potential coding abuse; provide monthly accounting updates; and provide monthly statements to patients. Under the very terms of the parties agreement, Zehner was required to provide to Stanley the required procedure codes along with the corresponding diagnosis codes. Zehner s argument lacks a basis in fact as well as in law. Since Zehner has not demonstrated that he suffered a manifest injustice, the judgment of the Logan Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Joseph B. Zehner, MD, pro se Russellville, Kentucky BRIEF FOR APPELLEE: Fred G. Greene Russellville, Kentucky -6-

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