Ladies and Gentlemen, they’ve done it again. The Insurance industry lobbied and successfully won a legislative victory and it’s going into law within the next three months. We spoke a few months ago about the number of “Things You Won’t See in Court.” One particular issue we noted was that juries are never told in (third-party) accident cases whether or not the person who is at-fault has insurance. This allows for protection of the Insurance carrier, because juries are not as likely to award damages from an individual as they would from an insurance company.
The most recent win by the insurance industry concerns changes to Florida’s PIP Law. Effective January 1, 2013, persons injured in the State of Florida have only fourteen (14) days to seek out initial service after an accident. In that time, persons will need to seek an initial treatment from a licensed physician, D.O., Dentist or Chiropractor or provided in a hospital or in a facility that owns or is wholly owned by a hospital. Beyond the fourteenth day, Florida motorists are out of luck and there will be no PIP coverage. There will be absolutely no PIP coverage and no exceptions, according to the statute for individuals who wait until after the fourteenth (14th) day to treat.
If you do see a physician, then coverage can take two branches. If the health care provider finds that there is an “Emergency Medical Condition,” then the injured person is able to recover up to $10,000 of coverage from PIP. Chiropractors are not allowed to opine whether or not an injury qualifies as an emergency medical condition; however, legislators were gracious enough to let these professionals opine that something is NOT an emergency medical condition.
Alternatively, individuals may obtain $2,500 for treatment required to treat an injury that was not initially diagnosed emergency medical condition. Since a chiropractor cannot diagnose emergency medical conditions, they will be limited to $2,500 in reimbursements for services provided unless referred by one of the specified medical professionals listed above.
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Significant confusion remains as to whether Florida motorists will receive $2,500 or $10,000 after a jury finds that a person suffers from a permanent injury. If a physician determines that an emergency medical condition exists, but a Chiropractor retained by the insurance carrier opines that there is no emergency medical condition, there will surely be litigation over this ambiguously defined issue. An emergency medical condition has been defined by the new statute as a condition manifesting itself by acute symptoms of sufficient severity, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
a.) serious jeopardy to the patient’s health
b.) serious impairment to a bodily function
c.) serious dysfunction of any bodily organ or part.
The biggest issue with the new no-fault statute is that it often takes months of conservative treatment (i.e., physical therapy or Chiropractic care) before a patient is referred to a specialist. In other words, normal protocol suggests that a patient with moderate discogenic pathology/symptomatology will treat conservatively for a finite period of time and the treating physician will determine how such individual responds to the treatment after the period of time concludes. As a result of the lobbying efforts of the insurance industry, a determination of an emergency medical condition must occur within fourteen days of the accident or there is no PIP coverage. The insurance industry knows full well that the only purpose of this requirement is self.serving by significantly limiting the number of claims filed by injured Floridians. The less claims equates to greater profits by the insurance carriers and the industry as a whole. These same insurance carriers are keenly aware that a large portion of emergency medical conditions cannot be properly determined within the first fourteen days and a greater period of time must elapse before such determination is made.
Ironically the new statute allows Chiropractors retained by the insurance carrier to formulate the determination that an emergency medical condition does not exist but does not allow Chiropractors to state that an emergency medical condition does exist. How does that make any sense?
Another area of intense litigation will focus on massage therapy. The new statute excludes massage therapy. However, does this relate only to massage therapy or other modalities that are utilized to manipulate sift tissue (i.e., trigger point therapy and TENS unit)?
These changes come in the wake of 2011 where Members of Florida’s executive branch found $910 million of tax fraud. Governor Scott and republican lawmakers singled out Florida’s PIP law for reform in the 2012 legislative session. Gov. Scott claimed this fraud amounted to a $910 million tax on the people of FL. Gov.
The law places a two-pronged attack, not on fraud, but the rights of personal injury victims. First, it usurps the role of juries in soft tissue cases. The legislature places an arbitrary cap of $2,500 and as a matter of law, that automatically compensates the injured party. It also goes a step further in saying that a person cannot reasonably suffer an injury that does not result in permanent medical impairment.
Second, the new law denies plaintiffs access to the courts. Unless a plaintiff can demonstrate a permanent injury, they have no recourse against the at-fault driver. This deprives victims of access to seek compensation for pain and suffering resulting from the accident. Most insurance defense representatives would disagree, citing the case of Lasky v. State Farm where PIP was upheld as constitutional because it was a “good trade” and provided a “reasonable alternative to the traditional action in tort.” However, any injured party will tell you that $2,500 is not a “good trade” for one’s right to litigate.
The irony is that this law skews all perspective when viewing any actions of insurance carriers. Insurers have thirty (30) days to repay medicaid in full after receiving notice Medicaid paid benefits. Insurers have thirty (30) days after receiving a request to provide insured a copy of the patient logs. Insurers get sixty (60) days to investigate suspected fraud. How about we, the people of Florida, try giving them fourteen (14) days to perform important tasks.
Why should they get thirty (30) days to repay a government service, or thirty (30) days to provide crucial information to patients or even extra time to investigate fraud? If victims and doctors are required to be clairvoyant in seeing whatever injuries occurred, but have not yet demonstrated symptoms, shouldn’t an insurer have just as little an opportunity in recouping costs? Now, I’m not making apologies for fraud, but rather I’m pointing out the ridiculous hypocrisy of a system that was supposedly created to represent the people of Florida.
It is patently obvious that many insurance carriers will now utilize the sixty (60) day period to investigate whether fraud has occurred even in cases where there it is plainly obvious that there is not a single issue suggesting the insured has been guilty of wrongful conduct. The longer the carrier holds on to their money the more interest is drawn. Keep in mind when this becomes standard business practice over thousands of claims it will add up to a significant amount of money saved by the insurance carrier.
The hope is that Florida courts will overturn a significant portion of this law, forcing the legislature to go back to the drawing board and come up with a solution that focuses on the rights of legitimate accident victims.