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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERDALE DIVISION

CASE NO.: 

VANGUARD PLASTIC SURGERY, PLLC d/b/a 

VANGUARD AESTHETIC AND PLASTIC 

SURGERY,

Plaintiff,

vs.

AETNA LIFE INSURANCE COMPANY,

Defendants.

 

COMPLAINT AND DEMAND FOR JURY TRIAL

Introduction

Plaintiff Vanguard Plastic Surgery, PLLC d/b/a Vanguard Aesthetic & Plastic Surgery 

("Plaintiff'), a Florida corporation, sues Defendants Aetna Life Insurance Company (“Aetna” or 

“Defendant”), and alleges as follows:

1. This action concerns the unreasonably low rate at which Defendant reimbursed 

Plaintiff for medical services Plaintiff provided to the following patients covered under a health 

insurance plan insured, operated, and/or administered by Defendant: L.B.; B.H.; R.M.; R.S. 

(collectively “Patients”).

2. Plaintiff provided medically necessary services to Patients consisting of different 

complex surgical procedures.

3. The relevant surgeries were pre-authorized by Defendant. 

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4. Plaintiff performed all surgeries with the understanding and expectation that 

Defendant would reimburse Plaintiff for the services it provided to Patients at billed charges, 

rates equal to the fair market and/or the reasonable value of Plaintiff’s services. Plaintiff’s 

understanding and expectation in this regard was based upon Defendant’s preauthorization of the 

services, Defendant’s representations on the remittance documents it sent to Plaintiff, the course 

of dealing and course of performance between Defendant and Plaintiff, and the requirements of 

Florida law.

5. Instead, Defendant has wrongfully paid Plaintiff at rates below: (1) the "usual and 

customary provider charges" in violation of Section 641.513(5), Florida Statutes, for claims 

subject to those sections; and/or (2) the reasonable value of the services in the marketplace 

required under quantum meruit by the implied-in-fact contract and/or the implied-in-law contract 

between the parties; and/or (3) below the billed charges expected to be paid. 

6. Florida has a strong public policy of protecting both patients who receive medical 

services in Florida and physicians who provide medical services in Florida.

7. Section 641.513(5) furthers Florida's public policy by protecting members of 

managed care organizations from being balance billed for services subject to these statutes, and 

by protecting non-participating providers who provide services subject to these statutes from 

being unfairly or inadequately compensated for services they are legally required to perform.

8. Under Section 641.513(5), Defendant is obligated to pay Plaintiff, on claims 

subject to those sections, the lesser of Plaintiff’s billed charges and the "usual and customary 

provider charges for similar services in the community where the services were provided"; i.e., 

the fair market value of the services, as interpreted by Florida courts.

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9. For claims not subject to Section 641.513(5), Defendant is obligated to pay 

Plaintiff under their implied contracts and the doctrine of quantum meruit the lesser of Plaintiff’s 

billed charges or, if different, the reasonable value of the services Plaintiff's physicians rendered 

to Defendant's members. 

10. Defendant has already adjudicated these claims and determined that all of the 

claims at issue in this action were for covered services rendered to Patient, and Defendant has 

already paid all of the claims at issue, albeit at amounts representing a mere fraction of the 

applicable shared savings rates for the services, the "usual and customary provider charges" for 

the services, and/or the reasonable value of the services. Thus, this action concerns only the rate 

of payment and not the right to payment. This action does not include any claims in which benefits 

were denied, nor does it challenge any coverage determinations under ERISA. Furthermore, 

Defendant, as an out-of-network provider, does not seek payment under the plan.

11. In this action, Plaintiff is seeking to have Defendant comply with their obligation 

to pay Plaintiff at the rates that represent the "usual and customary provider charges" required by 

Section 641.513(5), and/or the reasonable value of Plaintiffs services in the marketplace required 

under quantum meruit based on their implied-in-fact and/or implied-in-law contracts.

12. For the claims at issue in this action, the conduct and relationship of Plaintiff and 

Defendant and the surrounding circumstances created an enforceable contract in law and in fact, 

as well as a statutory right. Further, Plaintiff did not agree to accept discounted rates from 

Defendant for its services and did not agree to be bound by the terms of Patient's plan or by 

Defendant’s reimbursement policies or rate schedules. Nevertheless, Defendant has not paid 

Plaintiff the usual and customary provider charges under Section 641.513(5), Florida Statutes, 

fair market or reasonable value of its services and/or the billed charges. 

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13. The impact of Defendant’s underpayments on the claims at issue is considerable 

and has left a balance due from Defendant exceeding the minimum jurisdictional limits of this 

Court.

Parties

14. Plaintiff is a Florida professional limited liability company with its principal place 

of business located in Broward County, Florida.

15. Defendant is a foreign for-profit corporation registered to do business in the state 

of Florida. At all material times, Defendant was a health insurer and/or health claims administrator 

actively engaged in the transaction of health insurance servicing in the state of Florida and

providing managed healthcare products and administrative services throughout Florida, including 

in Broward County, Florida.

Jurisdiction and Venue

16. The amount in controversy exceeds the sum of $30,000, exclusive of interest, costs, 

and attorneys’ fees.

17. Defendant operates, conducts, engages in, and carries on business in the state of 

Florida and has offices and agencies throughout the state of Florida.

18. As Defendant is a foreign for-profit corporation, this Court has jurisdiction pursuant 

to diversity jurisdiction.

19. Venue is proper in Broward County, Florida, because the Plaintiff provided the 

medical services at issue to the Patient in Broward County and because the payments to Plaintiff 

for those services were due in Broward County.

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Facts

General Facts

20. Plaintiff, through its physicians, provides medical services, including emergency 

services and care, reconstructive services, and other surgical services to patients in Broward 

County, Florida, including at Plantation General Hospital1, located in Plantation, Florida.

21. Plaintiff’s physicians are licensed medical doctors practicing in the state of Florida.

22. Plaintiff’s physicians specialize in complex reconstructive surgery, including flap 

procedures, tissue transfers, skin grafts, and other procedures that allow for complex repair of 

human tissue after traumatic injuries. 

23. Furthermore, Plaintiff’s Physicians are bound by their professional ethics and the 

medical standard of care to not only render emergency treatment, but also provide continuity of 

care in the interest of the patient.

24. Defendant provides coverage for healthcare services provided to members of its 

managed healthcare products in the state of Florida.

25. In exchange for premiums, fees, and/or other forms of compensation, Defendant 

agrees to administer claims and provide reimbursement for healthcare services rendered to 

members of its health insurance policies.

26. Furthermore, Defendant agrees to maintain a network of qualified physicians. By 

failing to do so, as was the case with each patient here, Defendant essentially made each patient 

a self-pay patient, in breach of its obligations to both the providers and patients. 

1 Plantation General Hospital has since been purchased and now operates as HCA University Hospital.

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27. Defendant failed to maintain a network that included providers qualified to perform 

procedures and medical services which are covered under the plan, specifically those services 

authorized on behalf of Patients L.B., B.H. and R.M. 

Patient’s Health Insurance Policy

28. At all material times, Patients were a member of a group health insurance policy 

for Broward County Schools issued, fully insured, and administered by Defendant, a health 

maintenance organization (“HMO”), which policy provided coverage for services received by 

Patient and provided in the state of Florida (the “Policy”).

Relevant Statutes

29. Section 641.513(5), Florida Statutes, provides as follows:

Reimbursement for services pursuant to this section by a provider who does not have a contract 

with the health maintenance organization shall be the lesser of: 

(a) The provider’s charges;

(b) The usual and customary provider charges for similar services in the 

community where the services were provided; or

(c) The charge mutually agreed to by the health maintenance organization and the 

provider within 60 days of the submittal of the claim.

Such reimbursement shall be net of any applicable copayment authorized pursuant 

to subsection (4).

30. Florida courts have interpreted the phrase “usual and customary provider charges 

for similar services in the community where the services were provided” under Section 641.513(5) 

to require payment of “fair market value” for the services rendered. Baker Cnty. Med. Servs. v. 

Aetna Health Mgmt., LLC, 31 So. 3d 842,845–46 (Fla. 1st DCA 2010).

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31. Additionally, breast reconstruction is a federal mandate under the Women’s Health 

and Cancer Rights Act (“WHCRA”), enacted in 1998, which requires group health plans to cover 

and reimburse breast reconstruction after a mastectomy. This law, codified at 29 U.S.C. § 1185b, 

states:

(a) In general. A group health plan . . . shall provide, in case 

of a participant or beneficiary who is receiving benefits in 

connection with a mastectomy and who elects breast 

reconstruction in connection with such mastectomy, 

coverage for –

(1) all stages of reconstruction of the breast on which 

mastectomy has been performed . . . in a manner 

determined in consultation with the attending 

physician and the patient. Such coverage may be 

subject to annual deductibles and coinsurance 

provisions as may be deemed appropriate and as 

are consistent with those established for other 

benefits under the plan or coverage . . .

(c) Prohibitions. A group health plan, and a health 

insurance issuer offering group health insurance coverage in 

connection with a group health plan, may not –

(2) penalize or otherwise reduce or limit the 

reimbursement of an attending 

provider,

(d) Rule of construction. Nothing in this section shall 

be construed to prevent a group health plan or a health 

insurance issuer offering group health insurance coverage 

from negotiating the level and type of reimbursement with a 

provider for care provided in accordance with this section.

32. The structure of this statute is straightforward. 29 U.S.C. § 1185b(a) requires that 

post-mastectomy breast reconstruction surgery be covered. 29 U.S.C. § 1185b(c) prohibits any 

restrictions or limitations on the reimbursement rate for this type of surgery, whether performed 

by an in-network surgeon or an out-of-network surgeon, as compared to other types of surgery 

where a plan or insurer may reimburse based on an out-of-network reimbursement methodology 

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(such as “MRC”). However, 29 U.S.C. § 1185b(d), provides an exception to the strict requirement 

of 29 U.S.C. § 1185b(c): the plan or insurer may negotiate a lower reimbursement amount with 

the provider.

33. With respect to Aetna’s representation that “Per legislation governing this program, 

payment constitutes payment in full,” the WHCRA does not state that an insurer’s payment 

“constitutes payment in full.” The WHCRA states the opposite.

A. Patient L.B.

34. Plaintiff provided medically necessary services to Patient L.B. consisting of four 

different complex surgical procedures relating to Patient L.B.'s diagnosis of cancer in the left 

breast. These surgical procedures included a bilateral mastectomy, multiple stages of 

reconstruction, and other procedures necessary to treat infections and other physical complications 

from which Patient L.B. was suffering as a result of the bilateral mastectomy. Three of the 

surgeries at issue were pre authorized by the Defendant. One of the surgeries was performed on an 

emergency basis.

Patient L.B.’s First Surgery - June 11, 2020

35. On or about June 11, 2020, Patient L.B. presented to Plantation General Hospital 

for pre-authorized bilateral mastectomies and staged tissue expander reconstruction. 

36. On or about June 11, 2020, Plaintiff, through its physician, Dr. Weinstein 

performed the bilateral mastectomies. Immediately thereafter, Plaintiff’s physician, Dr. 

Ranganath, performed staged tissue expander reconstruction, which are covered benefits under 

Patient L.B.’s plan (“Patient L.B.’s First Surgery”). 

37. While Dr. Ranganath was out-of-network at all material times, Defendant 

recognized that its network did not have in-network providers with the skill and experience to 

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perform the above procedures. Therefore, Defendant granted Plaintiff an in-network exception, 

which applied to all continuing care by the provider. By granting the in-network exception, 

Defendant promised the patient that they will be held only to their in-network cost sharing 

obligation and that they are “assuming” the obligation of the balance bill. Thus, Defendant 

effectively assumed responsibility for Plaintiffs’ billed charges. By granting the in-network 

exception to the out-of-network provider Plaintiff, they are in essence contracting with him. (See 

In Network Exception Agreement – Attached herein as Exhibit “A”).

38. This is a particularly complex procedure and Plantation General Hospital is an innetwork facility.

Patient L.B.’s Second Surgery - February 10, 2021

39. On or about February 10, 2021, Patient L.B. presented to Plantation General 

Hospital for pre-authorized bilateral mastectomies and breast reconstruction.

40. Aetna issued prior authorization for the February 10, 2021 medically necessary 

services under prior authorization number 1720246110000000.

41. On or about February 2, 2021, Plaintiff, through its physician, Drs. Fletcher and 

Dreszer, provided medical services to Patient L.B. at Plantation General Hospital, which consisted 

of breast reconstruction using Deep Inferior Epigastric Perforator (DIEP) Flaps and bilateral breast 

scar revision due to a diagnosis of cancer of the left breast, which were covered benefits under 

Patient L.B.’s Plan (“Patient L.B.’s Second Surgery”).

42. A DIEP Flap is a cutting-edge breast reconstruction procedure that uses a flap of 

complete tissue, blood vessels, skin and fat from the woman’s lower abdomen as donor tissue. The 

flap is then transplanted to the chest where those removed blood vessels are reconnected to the 

vessels in the chest. The flap is then shaped into a new breast and the abdomen is surgically closed. 

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The procedure requires two micro-surgeons and at times, both a first and second assist, working 

together in unison for approximately 8-12 hours. There are few surgeons with proper training and 

skill to perform this complex procedure.

43. Dr. Fletcher assisted Dr. Dreszer for Patient L.B.’s Second Surgery.

44. Aetna entered into an agreement with Vanguard by which it granted Vanguard an 

In-Network Exception. In the letter from Aetna dated February 2, 2021, Aetna both represented 

and promised that the “service is approved at an in-network benefit level.” The member will be 

responsible only for in-network cost-sharing requirements. The provider identified to provide this 

service does not participate with this plan.” The letter further noted that all three components of 

the coverage approval process had been satisfied: verification of the member’s eligibility for 

coverage, verification that the member had coverage for the service, and verification that the 

approved service was medically necessary.

45. This letter was an In-Network Exception Agreement. More than just a verification 

of benefits, it formed a promise that Defendant Aetna would provide payment at the “in network 

benefit level” for the surgeries, which meant that the insured would not be liable for out-ofnetwork patient cost-sharing amounts such as deductibles, co-payments, co-insurance, and the 

balance of the bill. It was also a representation that Defendant would provide such a benefit or 

assume any financial obligation above the patient's in-network obligation. 

46. While Drs. Fletcher and Dreszer were out-of-network at all material times, Aetna 

recognized that its network did not have in-network providers with the skill and experience to 

perform the required procedure. Therefore, Aetna granted Plaintiff an in-network GAP exception, 

in a letter dated February 2, 2021, which applied to all continuing care by the provider.

47. After Drs. Dreszer and Fletcher performed the two pre-authorized breast 

reconstruction and/or revision surgeries, Aetna breached the In-Network Exception Agreement. 

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The in-network benefit level Defendant both represented and promised precluded out-of-network 

patient cost-sharing requirements, including charges that exceeded the out-of-network fee 

schedule (“balance bill”). Instead, Aetna reimbursed Vanguard based on what it said was the 

“maximum allowable” amount, for which it is usual and customary to receive payment-in-full or 

the maximum amount a plan will pay for a covered health care service for out-of-network 

providers. In-network providers, on the other hand, are paid based on a mutually negotiated 

contract rate between the insurance payor and the provider. Yet, Aetna reimbursed Plaintiff at 

unilaterally determined rates. In one Explanation of Benefit (“EOB”) sent to Plaintiff, Aetna 

stated that its payment was based on a self-invented methodology it called “reasonable and 

appropriate.” None of this constituted the value Defendant Aetna represented and promised, 

because the patient was left to pay the difference between the Plaintiff’s charges and Aetna’s 

“maximum allowable” amount.

48. Upon information and belief, Drs. Dreszer and Fletcher are two of the only 

physicians in the geographic area who are qualified to perform this procedure at Plantation 

General Hospital. Plantation General Hospital is an in-network facility.

Patient L.B.’s Emergency Third Surgery - February 12, 2021

49. On February 12, 2021, Patient L.B. returned to the operating room at Plantation 

General Hospital, at which time Dr. Dreszer performed a bilateral exploration and revision of 

reconstructed breasts as a result of Patient L.B.’s developing of hematoma plus venus and arterial 

thrombosis of her deep inferior epigastric perforator flap, which was also a covered benefit under 

Patient L.B.’s Plan (“Patient L.B.’s Emergency Third Surgery”). Thrombosis is a condition which 

requires immediate medical attention. Without immediate attention, Patient L.B.’s health can be 

put in serious jeopardy, potentially leading to serious impairment to Patient L.B.’s bodily 

functions, and/or serious dysfunction of Patient L.B.’s bodily organ(s) or part(s).

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50. The medical services rendered by Drs. Fletcher and Dreszer on February 12, 2021 

constitute inadvertent and/or continuity of care stemming from the first two procedures, which 

Drs. Fletcher and Dreszer’s professional ethics require him to provide in the best interest of the 

patient and which was covered as continuity of care when applying an in-network exception.

51. On February 12, 2021, Plaintiff, through its physicians, provided a continuation of 

treatment and/or inadvertent care required to address emergent conditions, as defined in F.S. 

641.47, stemming from Patient L.B.’s First Surgery on April 3, 2019.

Patient L.B.’s Fourth Surgery - August 20, 2021

52. On or about August 20, 2021, Patient L.B. presented to Plantation General Hospital 

for continuous treatment of her left breast cancer diagnosis and corresponding bilateral 

mastectomies and breast reconstruction procedures.

53. Aetna issued prior authorization for the August 20, 2021 medically necessary 

services under prior authorization number 8180928110000000. 

54. On August 20, 2021, Dr. Fletcher performed breast reconstruction and revision 

surgery with fat grafting from Patient L.B.’s abdomen (“Patient L.B.’s Fourth Surgery”). 

55. The medical services rendered by Drs. Fletcher on August 20, 2021 constitute 

continuity of care stemming from Patient L.B.’s earlier procedures, which was covered as 

continuity of care when applying an in-network exception.

56. While Drs. Fletcher was out-of-network at all material times, Aetna recognized that 

its network did not have in-network providers with the skill and experience to perform the required 

procedure. Therefore, Aetna granted Plaintiff an in-network GAP exception, in a letter dated 

February 2, 2021, which applied to all continuing care by the provider, including Patient L.B.’s 

Fourth Surgery. 

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57. After Dr. Fletcher performed the two pre-authorized breast reconstruction and/or 

revision surgeries, Aetna breached the In-Network Exception Agreement. The in-network benefit 

level Defendant both represented and promised precluded out-of-network patient cost-sharing 

requirements, including charges that exceeded the out-of-network fee schedule (“balance bill”). 

Instead, Aetna did not reimburse Vanguard for Patient L.B.’s Fourth Surgery. In-network 

providers, on the other hand, are paid based on a mutually negotiated contract rate between the 

insurance payor and the provider. None of this constituted the value Defendant Aetna represented 

and promised, because the patient was left to pay the difference between the Plaintiff’s charges 

and Aetna’s “maximum allowable” amount.

Defendant’s Underpayment of Patient L.B. Claims

58. Plaintiff submitted claims for reimbursement for the services Plaintiff provided to 

Patient L.B. as part of L.B.’s Surgeries (collectively, the “Patient B.H. Claims”).

59. Plaintiff submitted Patient L.B. Claims to Defendant as the designated claims 

administrator responsible for adjudicating Patient L.B. Claims on behalf of Patient L.B.’s policy.

60. Plaintiff’s charges for the services it provided as part of Patient L.B.’s First Surgery 

totaled $122,975.00, of which Aetna paid $2,594.96.

61. Plaintiff’s charges for the services it provided as part of Patient L.B.’s Second 

Surgery totaled $331,722.00, of which Aetna paid $3,058.23. 

62. Plaintiff’s charges for the services it provided as part of Patient L.B.’s Emergency 

Third Surgery totaled $203,510.00, of which Aetna paid $1,690.48.

63. Plaintiff’s charges for the services it provided as part of Patient L.B.’s Fourth 

Surgery totaled $51,483.00, of which Aetna paid $0.00.

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64. Thus, Plaintiff’s charges for the services underlying Patient L.B. Claims totaled 

$709,690.00.

65. Defendant paid Plaintiff a total of $7,343.67 on Patient L.B. Claims, which is a 

mere 1% of Plaintiff’s charges for the services at issue and nowhere near the amount Defendant is 

required to pay to Plaintiff.

66. Defendant issued the remittance notices of its foregoing underpayments on Patient 

L.B.’s Claims to Plaintiff in Fort Lauderdale, Florida.

67. Plaintiff never agreed to accept discounted rates from Defendant or to be bound by 

Defendant’s reimbursement policies or rate schedules with respect to Patient L.B. Claims.

68. Plaintiff justifiably relied on the terms included in the In-Network Exception 

Agreement. The In-Network Exception Agreement was addressed to the Plaintiff, provided terms 

for payment and identified the specific physician and CPT codes which were the services in 

essence being contracted for. 

69. Additionally, Defendant’s course of dealing and course of performance with 

Plaintiff was to administer claims for services based on 80% of the Fair Health rate when a 

payment amount could not be determined by the In-Network Exception Agreement. (See 

attached letters establishing Defendant’s course of conduct related to non-party patients –

attached herein as Exhibit “B”). 

70. Plaintiff’s course of dealing and course of performance with Defendant 

consistently demonstrates that Defendant pays Plaintiff 80% of the Fair Health amount for the 

CPT codes billed, particularly when their network does not include physicians with adequate 

experience or skill level to perform a medically necessary procedure. Baker Cnty. Med. Servs. v. 

Aetna Health Mgmt., LLC, 31 So. 3d 842,845–46 (Fla. 1st DCA 2010).

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71. Defendant already adjudicated Patient L.B. Claims and determined they were for 

covered services under the Policy.

72. Defendant has at all material times acknowledged and approved Plaintiff’s 

rendering of the medical services underlying Patient L.B. Claims, including by pre authorizing 

Plaintiff’s provision of services to Patient as part of the Patient L.B’s surgeries, as corroborated 

through an In-Network Exception Agreement, and, upon information and belief, by authorizing 

Patient L.B.’s admission to Plantation General Hospital on or about June 11, 2020 and thereafter 

on February 10, 2021, and continued treatment of the Plaintiff’s medical condition for which she 

presented for on February 12, 2021 and August 20, 2021.

73. Defendant was and is aware that Plaintiff provided medical services to Patient L.B. 

and billed Defendant for the medical services Plaintiff’s physicians provided to Patient L.B. with 

the expectation and understanding that its services had been approved by Defendant and that it 

would be reimbursed by Defendant at rates reflecting the “in-network benefit level” including but 

not limited to 80% of the Fair Health rate, the billed charges/reasonable value in the marketplace, 

or quantum meruit, of the medical services Plaintiff provided.

74. Defendant in fact determined Plaintiff’s medical services were covered services and 

paid Plaintiff for the medical services it provided to Patient L.B., albeit at rates inappropriately 

below Plaintiff’s billed charges and the reasonable value in the marketplace.

75. The rates at which Defendant paid Patient L.B. Claims are significantly less than 

the billed charges and the reasonable value of the services in the marketplace. Furthermore, the 

rates paid by Defendant for Patient L.B.’s claims are not reflective of the “in-network benefit level”

including but not limited to the 80% Fair Health rate promised by nature of entering into the InNetwork Exception Agreement.

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76. Defendant’s refusal to pay Plaintiff the billed charges and/or reasonable value of 

the medical services Plaintiff provided to Patient L.B. has caused Plaintiff to suffer damages in an 

amount equal to the difference between the amounts Defendant paid on Patient L.B. Claims and 

the reasonable value of the services Plaintiff provided, plus Plaintiff’s loss of use of that money. 

The difference between the amounts Defendant paid and Plaintiff’s billed charges totals 

$702,346.33.

77. All necessary conditions precedent for Defendant to perform its obligations 

pursuant to the applicable express contracts between the parties occurred or were performed, 

excused, and/or waived.

B. Patient B.H.

78. Plaintiff provided medically necessary services to Patient B.H. consisting of two 

different complex surgical procedures relating to Patient B.H.'s recovery from breast cancer. 

These surgical procedures included a bilateral breast scar revision, abdominal symptomatic scar 

revision, liposuction of the lateral breasts as well as fat grafting to correct symmetry. 

Additionally, Patient B.H. required a bilateral breast reconstruction for contour deformities. Both 

surgeries performed by Plaintiff were pre-authorized by Defendant. 

79. Aetna recognized that it lacked an adequate network of providers with the skill 

and experience to perform the required procedures. As such, Aetna entered into an agreement 

with Vanguard by which it granted Vanguard an In-Network Exception Agreement for both 

breast reconstruction surgeries. In the letter from Aetna dated March 14, 2019, Aetna both 

represented and promised that the “service is approved at an in-network benefit level.” The 

member will be responsible only for in-network cost-sharing requirements. The provider 

identified to provide this service does not participate with this plan.” The letter further noted that 

all three components of the coverage approval process had been satisfied: verification of the 

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member’s eligibility for coverage, verification that the member had coverage for the service, and 

verification that the approved service was medically necessary.

80. This letter was an In-Network Exception Agreement. More than just a verification 

of benefits, it formed a promise that Defendant Aetna would provide payment at the “in network 

benefit level” for the surgeries, which meant that the insured would not be liable for out-of-network 

patient cost-sharing amounts such as deductibles, co-payments, co-insurance, and the balance of 

the bill. By granting the in-network exception, Defendant promised the patient that they will be 

held only to their in-network cost sharing obligation and that they are “assuming” the obligation 

of the balance bill. Thus, Defendant effectively assumed responsibility for Plaintiffs’ billed 

charges. By granting the in-network exception to the out-of-network provider Plaintiff, they are in 

essence contracting with him. (See In Network Exception Agreement – Attached herein as 

Exhibit “C”).

81. After Drs. Dreszer and Fletcher performed the two pre-authorized breast 

reconstruction and/or revision surgeries, Aetna breached the In-Network Exception Agreement. 

The in-network benefit level Defendant both represented and promised precluded out-of-network 

patient cost-sharing requirements, including charges that exceeded the out-of-network fee 

schedule (“balance bill”). Instead, Aetna reimbursed Vanguard based on what it said was the 

“maximum allowable” amount, for which it is usual and customary to receive payment-in-full or 

the maximum amount a plan will pay for a covered health care service for out-of-network 

providers. In-network providers, on the other hand, are paid based on a mutually negotiated 

contract rate between the insurance payor and the provider. Yet, Aetna reimbursed Plaintiff at 

unilaterally determined rates. In one Explanation of Benefit (“EOB”) sent to Plaintiff, Aetna 

stated that its payment was based on a self-invented methodology it called “reasonable and 

appropriate.” None of this constituted the value Defendant Aetna represented and promised, 

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because the patient was left to pay the difference between the Plaintiff’s charges and Aetna’s 

“maximum allowable” amount.

Patient B.H.’s First Surgery – March 26, 2018

82. On or about March 26, 2018, Patient B.H. presented to Plantation General 

Hospital for a pre-authorized bilateral breast scar revision, abdominal symptomatic scar revision, 

liposuction of the lateral breasts as well as fat grafting to correct symmetry.

83. Aetna issued prior authorization for the March 26, 2018 medically necessary 

services under prior authorization number 311198401.

84. On or about March 26, 2018, Plaintiff, through its physician, Drs. Fletcher and 

Dreszer, provided medical services to Patient B.H. at Plantation General Hospital, which 

consisted of bilateral breast scar revision, abdominal symptomatic scar revision, liposuction of 

the lateral breasts as well as fat grafting to correct symmetry due to a prior diagnosis of breast 

cancer, all of which were covered benefits under Patient B.H.’s Plan (“Patient B.H.’s First 

Surgery”).

85. While Drs. Fletcher and Dreszer were out-of-network at all material times, Aetna 

recognized that its network did not have in-network providers with the skill and experience to 

perform the required procedure. Therefore, Aetna granted Plaintiff an in-network GAP exception, 

in a letter dated March 14, 2018, which applied to all continuing care by the provider.

86. Upon information and belief, Drs. Dreszer and Fletcher are two of the only 

physicians in the geographic area who are qualified to perform this procedure at Plantation 

General Hospital. Plantation General Hospital is an in-network facility.

Patient B.H.’s Second Surgery – March 28, 2019

87. On March 28, 2019, Patient B.H. presented at Surgery Center of Fort Lauderdale, 

at which time Dr. Dreszer performed a bilateral reconstruction of breasts with contour 

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deformities, which was also a covered benefit under Patient B.H.’s Plan (“Patient B.H.’s Second 

Surgery”).

88. The medical services rendered by Dr. Dreszer on March 28, 2019 constitutes 

continuity of care stemming from the first procedure, which Dr. Dreszer’s professional ethics 

require him to provide in the best interest of the patient and which was covered as continuity of 

care when applying an in-network exception.

89. On March 28, 2019, Plaintiff, through its physicians, provided a continuation of 

treatment, as defined in F.S. 641.47, stemming from Patient B.H.’s First Surgery on March 26, 

2019.

Defendant’s Underpayment of Patient B.H. Claims

90. Plaintiff submitted claims for reimbursement for the services Plaintiff provided to 

Patient B.H. as part of B.H.’s Surgeries (collectively, the “Patient B.H. Claims”).

91. Plaintiff submitted Patient B.H. Claims to Defendant as the designated claims 

administrator responsible for adjudicating Patient B.H. Claims on behalf of Patient B.H.’s policy.

92. Plaintiff’s charges for the services it provided as part of Patient B.H.’s First Surgery 

totaled $17,791, of which Aetna paid $1,024.85.

93. Plaintiff’s charges for the services it provided as part of Patient B.H.’s Second 

Surgery totaled $49,048, of which Aetna paid $1,204.53 for his services.

94. Thus, Plaintiff’s charges for the services underlying Patient B.H. Claims totaled 

$66,839.

95. Defendant paid Plaintiff a total of $3,448.58 on Patient B.H. Claims, which is a 

mere 5% of Plaintiff’s charges for the services at issue and nowhere near the amount Defendant is 

required to pay to Plaintiff.

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96. Defendant issued the remittance notices of its foregoing underpayments on Patient 

B.H.’s Claims to Plaintiff in Fort Lauderdale, Florida.

97. Plaintiff never agreed to accept discounted rates from Defendant or to be bound by 

Defendant’s reimbursement policies or rate schedules with respect to Patient B.H. Claims. Despite 

this, AETNA issued a misleading Explanation of Benefits for Plaintiff’s Claims citing payment at 

a percentage of “the negotiated rate” - yet no rate was negotiated between Plaintiff and AETNA.

98. Upon information and belief, Defendant’s course of dealing and course of 

performance with Plaintiff was to administer claims for services, including emergency care, 

continuation of care and/or inadvertent services, based on the reasonable value of the services 

and/or billed charges. 

99. The amounts Defendant paid to Plaintiff for the services underlying Patient B.H.

Claims for all three surgeries do not correspond with the statutory language mandated under 

Florida law. 

100. Defendant already adjudicated Patient B.H. Claims and determined they were for 

covered services under the Policy.

101. Defendant has at all material times acknowledged and approved Plaintiff’s 

rendering of the medical services underlying Patient B.H. Claims, including by pre authorizing 

Plaintiff’s provision of services to Patient as part of the Patient B.H First and Second surgeries, as 

corroborated through an In-Network Exception Agreement, and, upon information and belief, by 

authorizing Patient B.H’s admission to Plantation General Hospital on or about February 10, 2021,

February 12, 2021 and August 20, 2021 for the treatment of Patient B.H,’s emergency medical 

conditions and/or continued treatment. 

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102. Plaintiff justifiably relied on the terms included in the In-Network Exception 

Agreement. The In-Network Exception Agreement was addressed to the Plaintiff, provided terms 

for payment and identified the specific physician and CPT codes which were the services in 

essence being contracted for. 

103. Additionally, Defendant’s course of dealing and course of performance with 

Plaintiff was to administer claims for services based on 80% of the Fair Health rate when a 

payment amount could not be determined by the In-Network Exception Agreement. (See 

attached letters establishing Defendant’s course of conduct related to non-party patients –

attached herein as Exhibit “B”). 

104. Plaintiff’s course of dealing and course of performance with Defendant 

consistently demonstrates that Defendant pays Plaintiff 80% of the Fair Health amount for the 

CPT codes billed, particularly when their network does not include physicians with adequate 

experience or skill level to perform a medically necessary procedure. Baker Cnty. Med. Servs. v. 

Aetna Health Mgmt., LLC, 31 So. 3d 842,845–46 (Fla. 1st DCA 2010).

105. Defendant was and is aware that Plaintiff provided medical services to Patient 

B.H. and billed Defendant for the medical services Plaintiff’s physicians provided to Patient B.H. 

with the expectation and understanding that its services had been approved by Defendant and that 

it would be reimbursed by Defendant at rates reflecting (a) lesser of (i) Plaintiff’s billed charges 

or (ii) the “usual and customary provider charges for similar services” (i.e., fair market value), as 

provided by Section 641.513(5), for claims subject to this section, and/or (b) the reasonable value 

in the marketplace, or quantum meruit, of the medical services Plaintiff provided, for claims 

determined to be not subject to Section 641.513(5).

106. Defendant in fact determined Plaintiff’s medical services were covered services and 

paid Plaintiff for the medical services it provided to Patient B.H., albeit at rates inappropriately 

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below Plaintiff’s billed charges, the fair market value, and the usual and customary rates for 

Plaintiff’s services in the marketplace. Furthermore, the rates paid by Defendant for Patient L.B.’s 

claims are not reflective of the “in-network benefit level” including but not limited to 80% of the 

Fair Health rate promised by nature of entering into the In-Network Exception Agreement.

107. The rates at which Defendant paid Patient B.H.’s Claims are significantly less than 

the rates required by Florida law. For claims covered by Section 641.513(5), Defendant has not 

paid Plaintiff the lesser of its billed charges or the fair market value of the services provided. For 

claims not covered by those sections, Defendant has not paid Plaintiff the usual and customary 

rates for the services or the reasonable value of the services in the marketplace.

108. Defendant’s refusal to pay Plaintiff the billed charges and/or reasonable value of 

the medical services Plaintiff provided to Patient B.H. has caused Plaintiff to suffer damages in an 

amount equal to the difference between the amounts Defendant paid on Patient B.H. Claims and 

the reasonable value of the services Plaintiff provided, plus Plaintiff’s loss of use of that money. 

The difference between the amounts Defendant paid and Plaintiff’s billed charges totals 

$632,390.42.

109. All necessary conditions precedent for Defendant to perform its obligations 

pursuant to the applicable express contracts between the parties occurred or were performed, 

excused, and/or waived.

C. Patient R.M.

110. Plaintiff provided medically necessary services to Patient R.M. relating breast 

reconstruction following a mastectomy due to Patient R.M.'s diagnosis of right breast cancer. The 

surgical procedure included a breast implant exchange.

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111. The follow-up surgery performed by Plaintiff was pre-authorized by Defendant. 

Aetna entered into an agreement with Vanguard by which it granted Vanguard an In-Network 

Exception Agreement for the implant exchange procedure, which also constituted continuity of 

care from Patient’s initial, preauthorized breast reconstruction and mastectomy procedures. In the 

letter from Aetna dated May 21, 2018, Aetna both represented and promised that the “Service is 

approved at an in-network benefit level”. The member will be responsible only for in-network 

cost-sharing requirements. The provider identified to provide this service does not participate with 

this plan.” The letter further noted that all three components of the coverage approval process had 

been satisfied: verification of the member’s eligibility for coverage, verification that the member 

had coverage for the service, and verification that the approved service was medically necessary.

112. This letter was an In-Network Exception Agreement. More than just a verification 

of benefits, it formed a promise that Defendant Aetna would provide payment at the “in network 

benefit level” for the surgeries, which meant that the insured would not be liable for out-of-network 

patient cost-sharing amounts such as deductibles, co-payments, co-insurance, and the balance of 

the bill. By granting the in-network exception, Defendant promised the patient that they will be 

held only to their in-network cost sharing obligation and that they are “assuming” the obligation 

of the balance bill. Thus, Defendant effectively assumed responsibility for Plaintiffs’ billed 

charges. By granting the in-network exception to the out-of-network provider Plaintiff, they are in 

essence contracting with him. It was also a representation that Defendant would provide such a 

benefit or assume any financial obligation above the patient's in-network obligation. (See In 

Network Exception Agreement – Attached herein as Exhibit “D”).

113. After Drs. Dreszer and Fletcher performed the two pre-authorized breast 

reconstruction and/or revision surgeries, Aetna breached the In-Network Exception Agreement. 

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The in-network benefit level Defendant both represented and promised precluded out-of-network 

patient cost-sharing requirements, including charges that exceeded the out-of-network fee schedule 

(“balance bill”). Instead, Defendant reimbursed Plaintiff based on what it said was the “maximum 

allowable” amount, for which it is usual and customary to receive payment-in-full or the maximum 

amount a plan will pay for a covered health care service for out-of-network providers. In-network 

providers, on the other hand, are paid based on a mutually negotiated contract rate between the 

insurance payor and the provider. Yet, Aetna reimbursed Plaintiff at unilaterally determined rates. 

In one Explanation of Benefit (“EOB”) sent to Plaintiff, Aetna stated that its payment was based 

on a self-invented methodology it called “reasonable and appropriate.” None of this constituted 

the value Defendant Aetna represented and promised, because the patient was left to pay the 

difference between the Plaintiff’s charges and Aetna’s “maximum allowable” amount.

Patient R.M.’s Surgery – May 25, 2018

114. On or about May 25, 2018, Patient R.M. presented to Plantation General Hospital 

for a pre-authorized implant exchange, related to Patient R.M.’s prior breast reconstruction 

following a mastectomy due to Patient R.M.'s diagnosis of right breast cancer.

115. Defendant previously issued authorization for the Patient R.M.s mastectomy and 

breast reconstruction. Patient R.M.’s subsequent, medically necessary services on May 25, 2018 

constitute continuity of care and are therefore covered under Defendant’s prior authorization.

116. On or about May 25, 2018, Plaintiff, through its physician, Dr. Fletcher, provided 

medical services to Patient R.M. at Plantation General Hospital, which consisted of implant 

exchange, all of which were covered benefits under Patient R.M.’s Plan (“Patient R.M. Surgery”).

117. While Dr. Fletcher was out-of-network at all material times, Defendant recognized 

that its network did not have in-network providers with the skill and experience to perform the 

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required procedure. Therefore, Aetna granted Plaintiff an in-network GAP exception for the May 

25, 2018 procedure in a letter dated May 21, 2018.

118. Upon information and belief, Vanguard’s Drs. Dreszer and Fletcher are two of the 

only physicians in the geographic area who are qualified to perform this procedure at Plantation 

General Hospital. Plantation General Hospital is an in-network facility.

Defendant’s Underpayment of Patient R.M. Claims

119. Plaintiff submitted claims for reimbursement for the services Plaintiff provided to 

Patient R.M. as part of Patient R.M.’s Surgery (“Patient R.M. Claim”).

120. Plaintiff submitted Patient R.M.’s Claim to Defendant as the designated claims 

administrator responsible for adjudicating Patient R.M. Claim on behalf of Patient R.M.’s policy.

121. Plaintiff’s charges for the services it provided as part of Patient R.M.’s Surgery 

totaled $30,886.50, of which Aetna paid $9,592.58.

122. Defendant paid Plaintiff a mere 3% of Plaintiff’s charges for the services at issue, 

nowhere near the amount Defendant is required to pay to Plaintiff.

123. Defendant issued the remittance notices of its foregoing underpayments on Patient 

R.M.’s. Claims to Plaintiff in Fort Lauderdale, Florida.

124. Plaintiff never agreed to accept discounted rates from Defendant or to be bound by 

Defendant’s reimbursement policies or rate schedules with respect to Patient R.M.’s. Claims.

125. Upon information and belief, Defendant’s course of dealing and course of 

performance with Plaintiff was to administer claims for services at the Patient R.M.’s in-network 

rate.

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126. Patient R.M. underwent previous surgeries related to the surgery at issue in this 

claim. These prior claims were paid at the in-network benefit level.2 Accordingly, Patient R.M.’s 

Surgery at issue constituted a continuation of care and an in-network exception was granted by 

Aetna, therefore the claim must be reimbursed in the same manner as the previous claims.

127. Defendant already adjudicated Patient R.M. Claims and determined they were for 

covered services under the Policy.

128. Defendant has at all material times acknowledged and approved Plaintiff’s 

rendering of the medical services underlying Patient R.M. Claims, including by pre authorizing 

Plaintiff’s provision of services to Patient R.M., as corroborated through an In-Network Exception 

Agreement, and, upon information and belief, by authorizing Patient R.M.’s admission to 

Plantation General Hospital on or about May 25, 2018 and/or continued treatment of the Patient 

R.M.’s medical condition.

129. Defendant was and is aware that Plaintiff provided medical services to Patient R.M. 

and billed Defendant for the medical services Plaintiff’s physicians provided to Patient R.M. with 

the expectation and understanding that its services had been approved by Defendant and that it 

would be reimbursed by Defendant at rates reflecting the “in-network benefit level” including but 

not limited to 80% of the Fair Health rate, the billed charges/reasonable value in the marketplace, 

or quantum meruit, of the medical services Plaintiff provided.

130. Plaintiff justifiably relied on the terms included in the In-Network Exception 

Agreement. The In-Network Exception Agreement was addressed to the Plaintiff, provided terms 

for payment and identified the specific physician and CPT codes which were the services in 

essence being contracted for. 

2 The claims numbers for these prior surgeries are ET352JNNY01 and ET352JNNY02.

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131. Additionally, Defendant’s course of dealing and course of performance with 

Plaintiff was to administer claims for services based on 80% of the Fair Health rate when a 

payment amount could not be determined by the In-Network Exception Agreement. (See 

attached letters establishing Defendant’s course of conduct related to non-party patients –

attached herein as Exhibit “B”). 

132. Plaintiff’s course of dealing and course of performance with Defendant 

consistently demonstrates that Defendant pays Plaintiff 80% of the Fair Health amount for the 

CPT codes billed, particularly when their network does not include physicians with adequate 

experience or skill level to perform a medically necessary procedure. Baker Cnty. Med. Servs. v. 

Aetna Health Mgmt., LLC, 31 So. 3d 842,845–46 (Fla. 1st DCA 2010).

133. Defendant in fact determined Plaintiff’s medical services were covered services and 

paid Plaintiff for the medical services it provided to Patient R.M., albeit at rates inappropriately 

below Plaintiff’s billed charges and the reasonable value in the marketplace.

134. The rates at which Defendant paid Patient R.M. Claims are significantly less than 

the billed charges, the value or reasonable value of the services in the marketplace. Furthermore, 

the rates paid by Defendant for Patient L.B.’s claims are not reflective of the “in-network benefit 

level” including but not limited to 80% of the Fair Health rate promised by nature of entering into

the In-Network Exception Agreement.

135. Defendant’s refusal to pay Plaintiff the billed charges and/or reasonable value of 

the medical services Plaintiff provided to Patient R.M. has caused Plaintiff to suffer damages in 

an amount equal to the difference between the amounts Defendant paid on Patient R.M. Claims 

and the reasonable value of the services Plaintiff provided, plus Plaintiff’s loss of use of that 

money. The difference between the amounts Defendant paid and Plaintiff’s billed charges totals 

$21,293.92. 

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136. All necessary conditions precedent for Defendant to perform its obligations 

pursuant to the applicable express contracts between the parties occurred or were performed, 

excused, and/or waived.

D. Patient R.S.

137. Plaintiff provided medically necessary services to Patient R.S. consisting of 

emergency reconstructive surgery of Patient R.S.’s right hand stemming from a complex laceration 

of his right hand and partial amputation of his right finger. The surgery was performed on an 

emergency basis.

Patient R.S.’s Surgery - January 11, 2019

138. On or about January 11, 2019, Patient R.S. presented to the emergency department 

of Broward Health Medical Center for emergency treatment of his right hand. 

139. Patient R.S. suffered a complex laceration to the right hand with partial amputation 

of his right long finger. 

140. Plaintiff’s physician, Dr. Fletcher, was the on-call specialist at the time and 

performed reconstructive surgery of Patient’s right hand and finger.

141. The surgical procedures included revision of the amputation, repair of the complex 

laceration, local tissue rearrangement, irrigation and debridement of the wounds, and other 

procedures necessary to treat Patient R.S. 

Defendant’s Underpayment of Patient R.S. Claims

142. Plaintiff submitted claims for reimbursement for the services Plaintiff provided to 

Patient R.S. as part of Patient R.S.’s Surgeries (collectively, “Patient R.S. Claims”). 

143. Plaintiff submitted Patient R.S. Claims to Defendant as the designated claims 

administrator responsible for adjudicating Patient R.S. Claims on behalf of Patient’s policy.

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144. Plaintiff’s charges for the services it provided as part of the Patient R.S.’s Surgery 

totaled $14,693.00 for Dr. Fletcher, of which Aetna paid $1,655.69 for his services. 

145. Defendant paid Plaintiff a total of $1,655.69 on Patient R.S. Claims, which is a 

mere 11.3% of Plaintiff’s charges for the services at issue and nowhere near the amount Defendant 

is required to pay to Plaintiff under Florida law.

146. Defendant issued the remittance notices of its foregoing underpayments on Patient 

R.S. Claims to Plaintiff in Fort Lauderdale, Florida.

147. Plaintiff never agreed to accept discounted rates from Defendant or to be bound by 

Defendant’s reimbursement policies or rate schedules with respect to Patient R.S. Claims. Despite 

this, AETNA issued a misleading Explanation of Benefits for Plaintiff’s Claims citing “the 

member’s plan provides benefits for covered expenses at the reasonable charge for the service in 

the geographic area where it is provided” - yet AETNA did not cover expenses at a reasonable 

charge.

148. Upon information and belief, Defendant’s course of dealing and course of 

performance with Plaintiff was to administer claims for services provided as emergent care and/or 

inadvertent services, like Patient R.S. Claims for the services underlying Patient R.S.’s emergency 

Surgery, based on the billed charges and/or the reasonable value of the services.

149. The amounts Defendant paid to Plaintiff for the services underlying Patient R.S. 

Claims for Patient R.S.’s Surgery does not correspond with the statutory language mandated under 

Florida law. 

150. Defendant already adjudicated Patient R.S.’s Claims and determined they were for 

covered services under the Policy. 

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151. Defendant has at all material times acknowledged and approved Plaintiff’s 

rendering of the medical services underlying Patient R.S. Claims, and upon information and belief, 

by authorizing Patient R.S’s admission to Broward Health Medical Center’s emergency 

department on or about January 11, 2019 for the treatment of Patient R.S’s emergency medical 

conditions.

152. Defendant was and is aware that Plaintiff provided medical services to Patient R.S. 

and billed Defendant for the medical services Plaintiff’s physicians provided to Patient R.S. with 

the expectation and understanding that its services had been approved by Defendant and that it 

would be reimbursed by Defendant at rates reflecting (a) lesser of (i) Plaintiff’s billed charges or 

(ii) the “usual and customary provider charges for similar services” (i.e., fair market value), as 

provided by Section 641.513(5), for claims subject to this section, and/or (b) the reasonable value 

in the marketplace, or quantum meruit, of the medical services Plaintiff provided, for claims 

determined to be not subject to Section 641.513(5).

153. Defendant in fact determined Plaintiff’s medical services were covered services and 

paid Plaintiff for the medical services it provided to Patient R.S., albeit at rates inappropriately 

below Plaintiff’s billed charges, the fair market value, and/or the usual and customary rates for 

Plaintiff’s services in the marketplace.

154. The rates at which Defendant paid Patient R.S. Claims are significantly less than 

the rates required by Florida law. For claims covered by Section 641.513(5), Defendant has not 

paid Plaintiff the lesser of its billed charges or the fair market value of the services provided. For 

claims not covered by those sections, Defendant has not paid Plaintiff his billed charges and/or the 

reasonable value of the services in the marketplace.

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155. Defendant’s refusal to pay Plaintiff the billed charges, fair market value and/or the 

reasonable value of the medical services Plaintiff provided to Patient R.S. has caused Plaintiff to 

suffer damages in an amount equal to the difference between the amounts Defendant paid on 

Patient R.S. Claims and the fair market value and reasonable value of the services Plaintiff 

provided, plus Plaintiff’s loss of use of that money. The difference between the amounts Defendant 

paid and Plaintiff’s billed charges totals $13,037.11.

156. All necessary conditions precedent for Defendant to perform its obligations 

pursuant to Section 641.513(5) and/or the applicable express or implied contracts between the 

parties occurred or were performed, excused, and/or waived.

COUNT I

Breach of Contract

(As to Patients L.B., B.H. and R.M.)

157. Plaintiff repeats and realleges each preceding allegation of this Complaint as if set 

forth at length herein.

158. Defendant entered into In-Network Exception Agreements with Plaintiff governing 

surgical procedures performed by Plaintiff on Patients L.B.3, B.H.4 and R.M.5.

159. The In-Network Exception Agreements set forth the terms of the Parties’ contract 

for services, specifically, the physician to perform the procedure, the specific medical services to 

be covered by Defendant, how Aetna would determine the amount to be paid, and dates within 

which their offer for payment was valid. Plaintiff accepted these terms and reasonably relied on 

them in rendering services to Patients L.B., B.H. and R.M.

160. Thus, the parties entered into valid contracts.

3 Patient L.B. Contract was expressed in a letter dated February 2, 2021.

4 Patient B.H. Contract was expressed in a letter dated March 14, 2019.

5 Patient R.M. Contact was expressed in a letter dated May 21, 2018

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161. The In-Network Exception Agreement stated: “Approved at the in-network benefit 

level...The member will be responsible only for in-network cost-sharing requirements.”

Accordingly, Defendant assumed the responsibility of paying the balance of the Plaintiff’s billed 

charges.

162. When a specific pricing cannot be determined by the In-Network Exception 

Agreement, course of dealing and performance reflects that Defendant pays 80% of the Fair Health 

rate for the CPT codes billed. 

163. After receiving the contract, Plaintiff performed Patients’ L.B., B.H., R.M. 

surgeries referenced in each respective In- Network Exception Agreement.

164. Defendant failed to perform its obligations under the In-Network Exception 

Agreements in that Plaintiff was paid less than the “in-network benefit level”, less than 80% of the 

Fair Health rate and less than the billed charges and/or reasonable value of Plaintiff’s services, 

when an in-network benefit level was not applicable.

165. Additionally, Defendant failed to perform its obligation under the In-Network 

Exception Agreements in that the member was responsible for more than in-network cost-sharing 

requirements, and Plaintiff was not paid the balance of their billed charges assumed by Defendant.

166. As a result of Defendant’s breach, Plaintiff sustained damages as follows:

a. Patient L.B. - $702,346.33

b. Patient B.H. - $632,390. 42

c. Patient R.M. - $21,293.92

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

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prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT II

Breach of Implied-in-Fact Contract - Fair Market Value

(As to Patient R.S.)

167. Plaintiff repeats and realleges each preceding allegation of this Complaint as if set 

forth at length herein.

168. At all material times, Defendant knew or should have known that Plaintiff was an 

out-of-network medical provider that provided medical services and staffing at Plantation General 

Hospital.

169. At all material times, Defendant knew or should have known that Plaintiff is 

obligated by law to provide emergency services and care to Defendant’s members, including 

Patient R.S., and that Defendant is obligated by law to cover those services.

170. At all material times, Defendant is obligated to cover and pay for medical services 

Patient R.S. received at Plantation General Hospital and Broward Health Medical Center, 

respectively. 

171. At all material times, Defendant is aware of its obligation to non--contracted 

providers like Plaintiff and was aware that Plaintiff provided medical services to Patient R.S with 

the reasonable expectation and understanding that Plaintiff would be reimbursed by Defendant at 

rates, under quantum meruit, reflecting the reasonable value of its services in the marketplace. 

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172. A contract implied-in-fact was doubtless established through Defendant’s 

knowledge that services were being rendered and both sides intended for compensation to be paid, 

with the parties possessing the compensation intention through the course of their past dealings or 

otherwise. 

173. At all material times, Defendant knew that Plaintiff had not agreed to accept 

discounted rates from Defendant for Patient R.S.’s Claims and had not agreed to be bound by 

Defendant’s reimbursement policies or rate schedules.

174. With full knowledge of their obligations and the surrounding circumstances as 

described in detail above, Defendant, as it pertains to Patient R.S.:

a. approved of Patient R.S. presenting to Broward Health Medical Center's 

emergency department in Ft. Lauderdale, Florida, on the dates listed above;

b. approved of Plaintiff providing medical services to Patient R.S. as part of 

Patient R.S.’s surgery; and

c. impliedly agreed to pay Plaintiff the reasonable value in the marketplace for 

those medical services.

175. Plaintiff submitted Patient R.S.’s Claims seeking reimbursement at rates 

representing the reasonable value of the services rendered.

176. Plaintiff submitted Patient R.S.’s Claims to Defendant as the designated 

administrator responsible for adjudicating Patient R.S.’s Claims on behalf of Patient R.S.’s Plan.

177. Defendant acknowledged its obligation and responsibility for payment and their 

approval of Plaintiff performing medical services as part of Patient R.S.’s Surgeries by paying 

some of Plaintiff’s claims for those services, albeit at a rate far below that to which Plaintiff is 

entitled.

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WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT III

Breach of Implied-in-Fact Contract – Fair Market Value

(In the alternative, as to Patients L.B., B.H. and R.M.)

178. Plaintiff repeats and realleges each preceding allegation of this Complaint as if set 

forth at length herein.

179. At all material times, Defendant knew or should have known that Plaintiff was an 

out-of-network medical provider that provided medical services and staffing at Plantation General 

Hospital, as acknowledged in the In-Network Exception Agreement.

180. At all material times, Defendant knew or should have known that Plaintiff provided 

the pre-authorized, medically necessary services, and that Defendant is obligated to cover those 

services.

181. At all material times, Defendant is obligated to cover and pay for medical services 

Patients L.B., B.H. and R.M. received at Plantation General Hospital. 

182. At all material times, Defendant is aware of its obligation to non-contracted 

providers like Plaintiff and was aware that Plaintiff provided medical services to Patients L.B., 

B.H. and R.M. with the reasonable expectation and understanding that Plaintiff would be 

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reimbursed by Defendant at rates, under quantum meruit, reflecting the reasonable value of its 

services in the marketplace. 

183. A contract implied-in-fact was doubtless established through Defendant’s 

knowledge that services were being rendered and both sides intended for compensation to be paid, 

with the parties possessing the compensation intention through the course of their past dealings or 

otherwise. 

184. At all material times, Defendant knew that Plaintiff had not agreed to accept 

discounted rates from Defendant for Patients L.B., B.H. and R.M.’s Claims and had not agreed to 

be bound by Defendant’s reimbursement policies or rate schedules.

185. With full knowledge of their obligations and the surrounding circumstances as 

described in detail above, Defendant, as it pertains to Patients L.B., B.H. and R.M.:

a. approved of Patients L.B., B.H. and R.M. presenting to Plantation General 

Hospital in Plantation, Florida, on the dates incorporated above;

b. approved of Plaintiff providing medical services to Patients L.B., B.H. and 

R.M. as part of Patients L.B., B.H. and R.M.’s surgery; and

c. impliedly agreed to pay Plaintiff at an “in-network benefit level” or the

reasonable value in the marketplace for those medical services in the “innetwork benefit level” could not be determined.

186. Plaintiff submitted Patients L.B., B.H. and R.M.’s Claims seeking reimbursement 

at rates representing the reasonable value of the services rendered.

187. Plaintiff submitted Patients L.B., B.H. and R.M.’s Claims to Defendant as the 

designated administrator responsible for adjudicating Patients L.B., B.H. and R.M.’s Claims on 

behalf of Patients L.B., B.H. and R.M.’s Plan.

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188. Defendant acknowledged its obligation and responsibility for payment and their 

approval of Plaintiff performing medical services as part of Patients L.B., B.H. and R.M.’s 

Surgeries by paying some of Plaintiff’s claims for those services, albeit at a rate far below that to 

which Plaintiff is entitled.

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT IV

Breach of the Warranty of Good Faith and Fair Dealing

(As to Patients L.B., B.H., R.M., R.S.)

189. Plaintiff repeats and realleges each preceding allegation of this Amended 

Complaint as if set forth at length herein.

190. The law implies in every contractual relationship, including that between Plaintiff 

and Defendant here, a warranty of good faith and fair dealing, which requires each party to the 

agreement to act in a manner that is consistent with the other party’s reasonable expectations.

191. Defendant violated the implied warranty of good faith and fair dealing with respect 

to its contracts and implied contracts with Plaintiff through acts of misdirection, provision of 

misinformation, refusal to uphold the basic terms which it set, and generally engaging in 

unjustified wrongful conduct upon performance.

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

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Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT V

Negligent Misrepresentation

(As to Patients L.B., B.H., R.M., R.S.)

192. Plaintiff repeats and realleges each preceding allegation of this Complaint as if set 

forth at length herein.

193. Through Defendant’s representations to Plaintiff regarding the amount that it would 

pay to Plaintiff for services performed on Patients L.B., B.H., R.M., and R.S. (collectively 

“Patients”), Aetna provided information to Plaintiff in the course of its business or in the course 

of a transaction that Defendant had a pecuniary interest.

194. Defendant’s representations to Plaintiff regarding authorization and payment for 

services relative to insured Patients were false, as exhibited by the In-Network Exception 

Agreement.

195. Defendant did not exercise reasonable care or competence in obtaining or 

communicating the information to Plaintiff.

196. Plaintiff justifiably relied upon Defendant’s representations and performed services 

on Patients based on the same.

197. As a direct and proximate result of Defendant’s misrepresentations to Plaintiff 

regarding authorization and payment for services relative to insured Patients, Plaintiff has 

sustained damages.

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WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT VI

Promissory Estoppel

(In the alternative, as to Patients L.B., B.H., R.M., and R.S.)

198. Plaintiff repeats and realleges each preceding allegation of this Amended 

Complaint as if set forth at length herein.

199. Defendant’s representations prior to the performance of the services, regarding the 

amount that it would pay to Plaintiff for services performed on L.B., B.H., R.M., and R.S.

(collectively “Patients”), represented a promise.

200. Defendant knew or should have known that Plaintiff would rely upon Defendant’s 

promise to pay Plaintiff for services performed on Patients.

201. Plaintiff substantially and justifiably relied upon said promises and performed 

services on Patients based on this reliance.

202. Defendant’s actions therefore caused Plaintiff to suffer a detriment of definite and 

substantial nature in reliance on the promises made by Defendant that it would pay the amount that 

it represented for the authorized services performed on Patients.

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203. As a direct and proximate result of Defendant’s failure to fulfill its promise to pay 

at an “in-network benefit level” including but not limited to the “usual and customary rates” for 

the pre-authorized surgical services provided by Plaintiff to Patients, Plaintiff has been damaged.

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the medical services at issue and the billed charges and/or reasonable value of those 

services in the marketplace, as determined by the finder of fact, together with an award of 

prejudgment interest, costs, and such other and further relief as the Court may deem just and 

proper.

COUNT VII

Violation of Section 641.513(5)- Emergency Services

(L.B.’s Third Surgery - February 12, 2021)

204. Plaintiff repeats and realleges each preceding allegation of this Amended 

Complaint as if set forth at length herein.

205. Section 641.513(5) imposes a duty on Defendant, as a managed care organization 

to reimburse Plaintiff for Patient L.B.’s Emergency Claims according to the statutes’ dictates.

206. Pursuant to Section 641.513(5), reimbursement for services pursuant to this section 

by a provider who does not have a contract with the health maintenance organization shall be the 

lesser of:

(a) The provider's charges;

(b) The usual and customary provider charges for similar services in the 

community where the services were provided; or

(c) The charge mutually agreed to by the health maintenance organization 

and the provider within 60 days of the submittal of the claim.

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Such reimbursement shall be net of any applicable copayment authorized pursuant to 

subsection (4). F.S. 641.513(5).

207. Plaintiff has a private right of action under Section 641.513(5) to enforce the 

statutes’ provisions against Defendant.

208. At all material times, Plaintiff was a non-participating emergency medical provider 

that staffed the emergency department at Plantation General Hospital.

209. The medical services Plaintiff provided to Patient L.B. as part of her Emergency 

Third Surgery were emergency services and care as defined in Section 641.47(8), Florida Statutes 

and/or were a continuation of care stemming from covered non-emergency services and/or 

inadvertent services, rendered to Patient L.B. at Plantation General Hospital on February 10, 2021. 

210. Plaintiff submitted the Patient L.B. Claims for the emergency services it provided 

to Patient L.B. (“Patient L.B. Emergency Claims”), which were subject to Section 641.513(5), to 

Defendant.

211. Defendant, as a managed care organization licensed and/or operating in the state 

of Florida, was responsible for payment of the Patient L.B. Emergency Claims.

212. Patient L.B. Emergency Claims set forth Plaintiff’s billed charges for the 

emergency services it provided to Patient L.B. on February 12, 2021.

213. Defendant determined the Patient L.B. Emergency Claims was a covered 

emergency service. 

214. Plaintiff and Defendant did not mutually agree on a specific charge for any of the 

Patient L.B. Emergency Claims. Plaintiff did not agree to accept discounted rates from Defendant 

for Patient L.B. Emergency Claims, nor did it agree to be bound by Defendant’s reimbursement 

policies or rate schedules with respect to Patient L.B. Emergency Claims.

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215. Defendant violated Section 641.513(5) by failing to pay Plaintiff the “usual and 

customary provider charges for similar services in the community where the services were 

provided” for the Patient L.B. Emergency Claims.

216. As a result of Defendant’s failure to fulfill its legal obligations to reimburse Plaintiff 

in accordance with Section 641.513(5), Plaintiff has suffered injury and is entitled to monetary 

damages from Defendant.

217. Plaintiff seeks compensatory damages, as permitted by applicable law, in an 

amount equal to the difference between the amounts Defendant paid to Plaintiff for the Patient 

L.B. Emergency Claims and the fair market value of the medical services underlying the Patient 

L.B. Emergency Claims, plus interest.

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the Patient L.B. Emergency Claims and the fair market value of the medical services 

underlying Patient L.B. Emergency Claims, as determined by the finder of fact, together with an 

award of prejudgment interest, costs, and such other and further relief as the Court may deem just 

and proper.

COUNT VIII

Violation of Section 641.513(5)- Emergency Services

(R.S.’s Surgery - January 11, 2019)

218. Plaintiff repeats and realleges each preceding allegation of this Amended 

Complaint as if set forth at length herein.

219. Section 641.513(5) imposes a duty on Defendant, as a managed care organization 

to reimburse Plaintiff for Patient R.S. Emergency Claims according to the statutes’ dictates.

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220. Pursuant to Section 641.513(5), reimbursement for services pursuant to this section 

by a provider who does not have a contract with the health maintenance organization shall be the 

lesser of:

(a) The provider's charges;

(b) The usual and customary provider charges for similar services in the 

community where the services were provided; or

(c) The charge mutually agreed to by the health maintenance organization 

and the provider within 60 days of the submittal of the claim.

Such reimbursement shall be net of any applicable copayment authorized pursuant to 

subsection (4). F.S. 641.513(5).

221. Plaintiff has a private right of action under Section 641.513(5) to enforce the 

statutes’ provisions against Defendant.

222. At all material times, Plaintiff was a non-participating emergency medical provider 

that staffed the emergency department at Broward Health Medical Center. 

223. The medical services Plaintiff provided to Patient R.S. as part of his surgery were 

emergency services and care as defined in Section 641.47(8), Florida Statutes and/or inadvertent 

services. 

224. Plaintiff submitted the Patient R.S. Claims for the emergency services it provided 

to Patient R.S. (“Patient R.S. Emergency Claims”), which were subject to Section 641.513(5), to 

Defendant.

225. Defendant, as a managed care organization licensed and/or operating in the state of 

Florida, was responsible for payment of the Patient R.S. Emergency Claims.

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226. Patient R.S. Emergency Claims set forth Plaintiff’s billed charges for the 

emergency services it provided to Patient R.S. on January 11, 2019.

227. Defendant determined the Patient R.S. Emergency Claims was a covered 

emergency service. 

228. Plaintiff and Defendant did not mutually agree on a specific charge for any of the

Patient R.S. Emergency Claims. Plaintiff did not agree to accept discounted rates from Defendant 

for Patient R.S. Emergency Claims, nor did it agree to be bound by Defendant’s reimbursement 

policies or rate schedules with respect to Patient R.S. Emergency Claims.

229. Defendant violated Section 641.513(5) by failing to pay Plaintiff the “usual and 

customary provider charges for similar services in the community where the services were 

provided” for the Patient R.S. Emergency Claims.

230. As a result of Defendant’s failure to fulfill its legal obligations to reimburse Plaintiff 

in accordance with Section 641.513(5), Plaintiff has suffered injury and is entitled to monetary 

damages from Defendant.

231. Plaintiff seeks compensatory damages, as permitted by applicable law, in an 

amount equal to the difference between the amounts Defendant paid to Plaintiff for the Patient 

R.S. Emergency Claims and the fair market value of the medical services underlying the Patient 

R.S. Emergency Claims, plus interest.

WHEREFORE, Plaintiff prays that this Court enter a judgment against Defendant and in 

favor of Plaintiff in an amount representing the difference between the amounts Defendant paid to 

Plaintiff for the Patient R.S. Emergency Claims and the fair market value of the medical services 

underlying Patient R.S. Emergency Claims, as determined by the finder of fact, together with an 

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award of prejudgment interest, costs, and such other and further relief as the Court may deem just 

and proper.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury of all issues so triable.

DATED this 4th day of October, 2022. 

Respectfully submitted,

DI PIETRO PARTNERS, PLLC

901 East Las Olas Blvd, Suite 202

Fort Lauderdale, FL 33301

Primary Email Address:

service@ddpalaw.com

Secondary Email Address:

nicole@ddpalaw.com

Telephone: (954) 712-3070

Facsimile: (954) 337-3824

/s/ Nicole Martell

NICOLE MARTELL, ESQ.

Florida Bar No.: 100172

nicole@ddpalaw.com

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