The Florida Third District Court of Appeals made its decision on whether Doctors of Chiropractor Medicine can determine an Emergency Medical Condition (“EMC”) as defined in the Florida Statute’s with an emphatic NO this week.
The case of Progressive American Insurance Company vs. Eduardo J. Garrido D.C. P.A, etc., is the first DCA opinion in the state of Florida, which means it carries for the law until another DCA says otherwise.
The Florida No-Fault statute 627.736(1)(a)(3) defines who is authorized to diagnose a patient with an EMC. The statute states:
“3. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition.
4. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. is limited to $2,500 if a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.”
Chiropractic Physicians are not licensed under chapter 458 or chapter 459. Therefore, even though in the State of Florida they are physicians they were excluded from making this determination. “In Counts II and III of his complaint, Garrido alleged that the exclusion of chiropractors from the list of professionals, scheduled in section 627.736(1)(a)3., that are authorized to diagnose a patient with an EMC is unconstitutional as applied to chiropractors on both equal protection and due process grounds.”
The trial court upheld that the statute was unconstitutional as applied to chiropractors “on both equal protection and due process grounds”, however was brought up to the appeals level to answer the question of great public importance: “ Is the omission of chiropractors from the list of health care professionals authorized to diagnose an emergency medical condition under 627.736(1)(a)(3), Fla. Stat. (2013) (stet) unconstitutional as applied to chiropractors on the grounds of equal protection and due process under the Florida Constitution?”
When reviewing a government’s actions on a constitutional issue Garrido “has the burden to establish that there is no reasonable relationship between the subject statute’s treatment of chiropractors and a valid governmental objective.” The case explains that “the objection of section 10 of the 2012 PIP Act is to reduce fraud in order to lower the cost of insurance premiums. To achieve this objective, the legislation limited the availability of the full $10,000 medical benefit to those injured persons who suffered an EMC as the result of an automobile accident.”
“Under constitutional equal protection analysis, our inquiry is not whether we believe chiropractors are qualified to provide an EMC diagnosis and, therefore, should have been included. . .[b]ut the rational basis test does not allow judicial fact-finding to replace legislative fact-finding. . . [w]e must presume that the Legislature conducted its own evaluation of the respective professionals’ qualifications.” The Court further concluded “we also conclude that chiropractors are not similarly situated to other medical providers entitled to make an EMC diagnosis,. . .by virtue of their respective training, licensing and scope of professional practice.”
Meaning, the court did see a difference in the licensure of the different physicians, even though they didn’t need to show proof of a difference in their previous statement.
This case continues the analysis of “What happens when there is no EMC at all”. It follows that if there is no EMC, the limit for coverage is $2500. For more information on the $2500 cap and why you need an EMC please read:
If you are a Chiropractor or work at a chiropractic office, you need to be sending your patients out to get an EMC evaluation right after your first office visit. Failure to do so will hurt your patient and your office.
If you are a patient and have only been seen by a Chiropractor, make sure you ask your doctor to send you out for an EMC evaluation or your benefits will be limited.
If all of this confuses you and you need more help, reach out to a seasoned PIP attorney who can answer all of your questions and provide you with peace of mind, so you can go back to treating patients or getting healthy. Call Dolman Law Group at 727-222-6922 or email .