"NOVEL THEORY" PREVENT CLASS ACTION CERTIFICATION

In Baker v. PHC-Minden, L.P., 49-122 (La. App. 2 Cir. 8/13/14), the court determined that lawsuits brought pursuant to the Health Care Consumer Billing and Disclosure Protection Act (“the Act”) could not be brought as a class action at this time. In general, the Act provides that a contracted health care provider is prohibited from discount billing, dual billing, attempting to collect from, or collecting from an insured a “health insurance issuer liability” or any amount in excess of the contracted reimbursement rate for covered health care services. Recently, the Supreme Court ruled in Anderson v. Ochsner Health Sys., 13-2970 (La. 7/1/14) -- So.3d-- that a private right of action is created by the Act. However, no jurisprudence yet exists to define this right of action.In rejecting class status, the Second Circuit commented that a “court must have experience with a tort in the form of several individual actions before it can certify issues in a way that preserves judicial resources [i.e, class actions.]” Furthermore, the court observed that Louisiana courts will deny class certification when presented with novel and untested legal theories. Because a private action under the Act is a novel issue with no development in the case law, the court reversed the class certification of the trial court.