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PhoneDOCTORx, LLC v. Healthbridge Mgmt., Inc.

United States District Court, D. Massachusetts

November 7, 2014

PHONEDOCTORX, LLC, Plaintiff and Counterclaim-Defendant,
v.
HEALTHBRIDGE MANAGEMENT, INC.; HEALTHBRIDGE MANAGEMENT, LLC; 221 FITZGERALD DRIVE OPERATING COMPANY, LLC; and 64 PERFORMANCE DRIVE OPERATING COMPANY, LLC, Defendants and Counterclaim-Plaintiffs, and 49 THOMAS PATTEN DRIVE OPERATING COMPANY, LLC; 312 MILLBURY AVENUE OPERATING COMPANY, LLC; 2101 WASHINGTON STREET OPERATING COMPANY, LLC; 750 WOBURN STREET OPERATING COMPANY, LLC; 57 OLD ROAD TO NINE ACRE CORNER OPERATING COMPANY, LLC; 178 LOWELL STREET OPERATING COMPANY, LLC; 199 ANDOVER STREET OPERATING COMPANY, LLC; PARK, MARION, AND VERNON STREET OPERATING COMPANY, LLC; 548 ELM STREET OPERATING COMPANY, LLC; and 265 ESSEX STREET OPERATING COMPANY, LLC, Counterclaim-Plaintiffs

Page 153

For PhoneDOCTORx, LLC, Plaintiff, Counter Defendant: Michael J. Sullivan, LEAD ATTORNEY, Ashcroft Sullivan LLC, Boston, MA; Amy D. Barry, Ashcroft Law Firm, Boston, MA.

For Healthbridge Management, LLC, Healthbridge Management, Inc., Now known as DES Holding Co., INC., Defendants, Counter Claimant: Joseph M. Desmond, William H. Wynne, Morrison Mahoney LLP, Boston, MA.

For 221 Fitzgerald Drive Operating Company, LLC, doing business as New Bedford Health Care Center, 64 Performance Drive Operating Company, LLC, doing business as Weymouth Health Care Center, Defendants: Joseph M. Desmond, William H. Wynne, Morrison Mahoney LLP, Boston, MA.

For 178 Lowell Street Operating Company, LLC, doing business as Lexington Health Care Center, 199 Andover Street Operating Company, LLC, doing business as Peabody Glen Health Care Center, 2101 Washington Street Operating Company, LLC, doing business as Newton Health Care Center, 221 Fitzgerald Drive Operating Company, LLC, doing business as New Bedford Health Care Center, 265 Essex Street Operating Company, LLC, doing business as Essex Park Rehabilitation and Nursing Center, 312 Millbury Avenue Operating Company, LLC, doing business as Milbury Health Care Center, 49 Thomas Patten Drive Operating Company, LLC, doing business as Cedar Hill Health Care Center, 548 Elm Street Operating Company, LLC, doing business as Calvin Coolidge Nursing and Rehabilitation Center, 57 Old Road to Nine Acre Operating Company, LLC, doing business as Concord Health Care Center, 64 Performance Drive Operating Company, LLC, doing business as Weymouth Health Care Center, 750 Woburn Street Operating Company LLC, doing business as Wilmington Health Care Center, Park, Marion and Vernon Streets Operating Company, LLC, doing business as Brookline Health Care Center, Counter Claimants: Joseph M. Desmond, William H. Wynne, Morrison Mahoney LLP, Boston, MA.

Page 154

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

F. Dennis Saylor IV, United States District Judge.

This is an action for breach of contract. Plaintiff PhoneDOCTORx provided telemedicine

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services to various health care facilities from 2006 to 2012. It alleges that those facilities failed to pay for all services utilized. Plaintiff originally brought suit against fourteen health care facilities, but has since dismissed its claims against all but four. Prior to the stipulation of dismissal, the fourteen original defendants brought counterclaims for breach of contract and under Mass. Gen. Laws ch. 93A, contending that PhoneDOCTORx improperly demanded payment for services that it did not provide. Jurisdiction is based on diversity of citizenship.

Defendants have moved for summary judgment on plaintiff's breach of contract claim and have joined with the ten other counterclaim-plaintiffs in moving for summary judgment on the counterclaims. Plaintiff has cross-moved for summary judgment on the counterclaims. For the reasons set forth below, defendants' motion as to plaintiff's claims will be granted in part and denied in part, plaintiff's motion on the counterclaims will be granted in part and denied in part, and counterclaim-plaintiffs' motion will be denied.

I. Background

Unless otherwise noted, the following facts are undisputed.

A. Factual Background

PhoneDOCTORx is a Massachusetts LLC and a provider of telemedicine services in Massachusetts. Healthbridge Management, LLC, and Healthbridge Management, Inc., now known as DES Holding, Inc., manage and oversee the operations of various health-care and nursing facilities, including those that are party to this suit.

On January 10, 2006, PhoneDOCTORx entered into a contract with 221 Fitzgerald Drive Operating Company, LLC, d/b/a New Bedford Health Care Center (" New Bedford Health" ), a skilled nursing facility in New Bedford, Massachusetts. The contract was for a one-year term and automatically renewed for additional one-year terms unless either party terminated the contract with 90 days' written notice.

The contract is seven pages long. Under the contract, PhoneDOCTORx was to provide various health-care related services to New Bedford Health. Those services were divided into two categories: " traditional services" and " telemedicine."

Under the category " traditional services," PhoneDOCTORx agreed to twelve itemized obligations for a fixed monthly fee of $2,000. Among the obligations were (1) to " provide AHP's and physicians necessary to provide regular visits to [New Bedford Health] as medically necessary" ; (2) to " provide physicians who with the assistance of AHP's will complete initial History and Physicals, thirty and sixty day visit evaluations, and discharge evaluations on all [PhoneDOCTORx] patients at [New Bedford Health]" ; (3) to " provide physicians and AHP's to complete additional on-site evaluations of [Phone DOCTORx's] patients at [New Bedford Health], as deemed medically necessary" ; and (4) to " meet with patients and families on a schedule, or on an as needed, basis." (Pl. Mem. Ex. 4 at 3) (mistakes in original).[1] Nothing in that category specifically addresses telephone calls or the provision of medical services at a distance.

Under the category " telemedicine," the contract provided as follows:

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In addition to the " more traditional" services outlined above . . . [PhoneDOCTORx] will provide telemedicine coverage for medical problems that arise during the course of one of their patient's stay.
[Phone DoctorX] shall provide medical coverage services for [New Bedford Health] patients during the hours listed below:
[PhoneDOCTORx] shall staff a Telemedicine Call Center with AHP/physician during the hours of 5:00 PM to 11:00 PM Monday through Friday and 10:00 AM to 7:00 PM Saturday and Sunday. . . .
Triage function to determine whether a patient can be treated through a telemedicine encounter, or whether a patient needs to be transferred to a hospital emergency room.
Telemedicine evaluation and treatment for medical problems.
Orders for laboratory tests and/or radiographic studies may be given during said telemedicine covering encounter. If necessary, such orders may be faxed or phoned directly to [New Bedford Health] by the covering telemedicine physician.
A physician or AHP [allied health professional] will be available via telephone for follow up of the telemedicine encounter if said telemedicine encounter resulted in a diagnostic study being ordered.
All telemedicine treatments will result in a medical record being created and a copy of the same will be timely routed to [New Bedford Health] for incorporation into its medical record.
Install, operate, maintain and retain ownership of the [PhoneDOCTORx] patentprotected software and related process, to be installed on hardware provided by [New Bedford Health] (as listed below).

(Pl. Mem., Ex. 4 at 4 (emphasis and mistakes in original)). The term " telemedicine" was not defined. There is no specific reference to video communications.

As for New Bedford Health's obligations, the contract provided, among ...


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