Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—Fla. Dist. App.: Hospital liens are not covered by Florida consumer protection law, (Jul 9, 2013)

By Jody Coultas, J.D.

Filing a hospital lien does not meet the definition of “trade or commerce” for purposes of the Florida Deceptive and Unfair Trade Practices Act (DUTPA), according to a Florida district court of appeals (Baker v. Baptist Hospital, Inc., July 5, 2013, Wolf, J.).

Marc Baker sought to represent a class of individuals who had hospital liens asserted against them in Escambia County by Baptist Hospital, Inc. for medical care received at hospitals located in Santa Rosa County, arguing that the practice of filing hospital liens in Escambia County for care rendered in Santa Rosa County was not authorized by law and was deceptive.

A trial court held that the liens were not authorized, directed Baptist to lift any such liens, and enjoined Baptist from filing such liens in the future. However, the court held that filing a hospital lien was not “trade or commerce” such that the practice was subject to DUTPA.

The DUTPA prohibits unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce is defined as advertising, soliciting, providing, offering, or distributing—whether by sale, rental, or otherwise—of any good or service, or any property—whether tangible or intangible—or any other article, commodity, or thing of value, wherever situated.

Filing of a hospital lien is the pursuit of a legal remedy and, thus, not within the definition of “trade or commerce,” according to the court. Although one district court has held that debt collection by the party that extends credit may be subject to DUTPA, the court did not classify the filing of a statutory hospital lien as debt collection. The filing of the lien does not demand a payment, but rather puts parties on notice of the lienor’s secured interest and is part of the exercise of legal remedies. Baker’s argument that the filing of a hospital lien was a “billing practice” was also dismissed. A bill is a mere claim of a right to be paid, while a lien is a securing of the right to be paid. Securing of the legal right to be paid is not essential to the trade or commercial relationship.

The case is No. 1D12-5135.

Attorneys: R. Jason Richards (Aylstock, Witkin, Kreis & Overholtz, PLLC) for Marc Baker. J. Nixon Daniel, III (Beggs & Lane, RLLP) for Baptist Hospital, Inc.

Companies: Baptist Hospital, Inc.

Cases: StateUnfairTradePractices FloridaNews