By now most, if not all, medical providers who treat personal injury patients are familiar with the Emergency Medical Condition (EMC) clause of the Florida PIP statute and the simple rules of EMC; $10,000.00 of PIP benefits if there is EMC and $2,500.00 if there isn’t. While many different insurer carriers write policies in Florida, only a small number are actually enforcing the EMC provisions on their insured’s; mainly USAA, Progressive, and Liberty Mutual which have taken a hard stance.
However, when it comes to limiting PIP benefits to $2,500.00 through a finding of a non-existing emergency medical condition (hereinafter non-EMC), Progressive accomplishes this through the use of peer reviews, without a physical medical examination. For the reasons set forth below, I believe this is impermissible.
First, a refreshing look at the non-EMC provision is needed. Fla. Stat. 627.736(1)(a)4 reads as follows:
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. (Emphasis added).
Subparagraph 1 of 627.736(1)(a) allows for medical benefits to classes of medical providers who provide, supervise, order, or prescribe initial care and services to an insured, and subparagraph 2 are those who provide, supervise, order, or prescribe follow-up care and services to an insured.
What happens during a typical, garden variety peer review? The physician is provided the insured’s medical records for review, he or she reads them, analyzes them, and then drafts a report of his or her conclusions. There is no treatment rendered, no physical exam of the patient, no communicating with the patient, no communicating with the patient’s treating physicians, and often times no updated records from the insurance company.
In the context of PIP, peer reviews have been DCA-upheld as constituting a “valid report” under the IME provisions for the purposes of withdrawing future PIP benefits. See United Auto. Ins. Co. v. Metro Injury & Rehab Ctr., 16 So. 3d 897 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly S2051 (Fla. 3d DCA Oct. 7, 2009) (en banc). However, EMCs are treated differently in the statute, they have their own provision with no cross reference to the IME paragraph, and arguably have different rules such that the “valid report” case law is in applicable.
Why would peer reviews not work for EMCs? Simply because of the language references a provider who provides, supervises, orders, or prescribes initial care and services and/or follow-up care on referral. Certainly a peer review physician is not a provider in the general custom and usage of that term in the PIP world. More importantly, the peer review physician does not provide, supervise, order, or prescribe initial care and services nor follow-up care and services.
I had the opportunity to depose one of Progressive’s peer review doctors and asked those very questions; each response was an unequivocal “no”. No, I did not provide, supervise, order, or prescribe initial care and services; no I did not provide, supervise, order, or prescribe follow-up care and services; no, I did not physically examine the patient; no, I did not treat the patient; no I did not speak to the patient; no, I did not speak with the patient’s treating physician; and no, I did not request additional records.
A literal reading of the statute, coupled with such admissions during a deposition, I believe effectively precludes the use of a peer review to limit benefits to $2,500.00 because the physician admitted to not being a provider and to not fitting into subparagraphs 1 and 2; which the statute specifically references. We intend to vigorously pursue this argument in peer review cases.
The question of whether EMCs are akin to IMEs is unanswered, uncharted, an uncertain as the issues play out in county courts across Florida. The insurer’s likely response is that the non-EMC provisions’ references to subparagraphs 1 and 2 are only for the purpose of specifying which individuals can make a determination that an emergency medical condition does not exist. While plausible, at the very least the statute is ambiguous and rules of statutory construction tend to favor the insured; especially given the Legislature’s use of the word “provider” rather than “individual” or something similar.
If you are a medical provider, anywhere in the State of Florida, and your PIP benefits have been limited to $2,500.00 due to the emergency medical condition provisions in the No-Fault statute, we are willing and eager to help. We have represented numerous providers in countless claims involving EMC. Please call us if you have any questions or concerns on navigating the EMC provision and how we can help.
Sibley Dolman Gipe Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765