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New Personal Injury Protection (“PIP”) Ruling on Emergency Medical Condition And Its Effects To Your Medical Practice

THE CASE-

In a decision that came out on August 31, 2016, the Fourth District Court of Appeals set a precedent that will control the State of Florida when it comes to Emergency Medical Condition determinations. The case of Medical Center of The Palm Beaches d/b/a Central Palm Beach Physicians & Urgent Care, Inc. a/a/o Carmen Santiago v. USAA Casualty Insurance Company (4th DCA, 2016) is the only DCA court to give an opinion on the issue of EMC, meaning that for the time this case is the controlling law in all of Florida.

The case states “The issue presented is whether a qualified medical provider must determine that an emergency medical condition exists for benefits to exceed $2,500 under Florida’s PIP statute. Stated in another way, if either there has been no determination of whether the insured has an emergency medical condition or there has been a determination that the insured does not have an emergency medical condition, would the benefits under PIP be limited to $2,500.” Further, the case continues with “We find that the statute requires a determination of an emergency medical condition for the benefits to be up to $10,000. Further, we find that if either there is no determination of whether the insured has an emergency medical condition or there has been a determination that the insured does not have an emergency medical condition, then the benefits would be limited to $2,500.

The facts of the case might sound very familiar to you and your medical office. They are:

Carmen Santiago, the insured, was injured in a motor vehicle accident. She went to an urgent care center due to pain in her cervical region and right shoulder. The doctor referred her to appellant for physical therapy. Appellant then submitted bills for payment to appellee USAA, the insurer, but USAA provided no additional payment, explaining that, pursuant to section 627.736(1)(a)(4), Florida Statutes, $2,500 had already been reimbursed under the policy. USAA requested that appellant provide “the determination of the patient’s emergency medical condition by a provider authorized” so that USAA could make any additional reimbursement decisions.

Appellant sued USAA for breaching the insurance contract by failing to issue full payment for the medical treatment appellant provided. Subsequently, appellant sent USAA a note from Dr. Chang, the insured’s treating physician, which stated that he considered the insured to have an emergency medical condition. Upon receipt of this documentation, USAA paid all outstanding charges under the policy until the limits were reached. USAA moved for summary judgment, which the trial court granted, finding that the provisions of section 627.736(1)(a)(3)-(4) limit medical benefits to $2,500 until there is a determination that the insured had an emergency medical condition. The trial court also determined USAA properly requested that appellant provides information regarding the insured’s medical condition, pursuant to section 627.736(6)(b), to justify additional reimbursement. The trial court disagreed with appellant that USAA waived any defenses because it paid the medical reimbursement after the suit was filed, and determined there was no confession of judgment because USAA did not wrongfully withhold payment.

EMC DETERMINATION IS NECESSARY-

The portion of The Florida No-Fault Statute (Fla. Stat. 627.736) this court analyzes are:

Section 627.736(1)(a)(3)-(4), Florida Statutes (2013), 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 any provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.

(emphasis added). An emergency medical condition is

a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

(a) Serious jeopardy to patient health.

(b) Serious impairment to bodily functions.

(c) Serious dysfunction of any bodily organ or part.

§ 627.732(16), Fla. Stat. (2013).

A very important part of the determination was the court analysis of the statutory construction. It stated:

The statute addresses the situation where there has been an affirmative determination of an emergency medical condition, authorizing up to $10,000. § 627.736(1)(a)(3), Fla. Stat. The statute also addresses the situation where there has been an affirmative determination of no emergency medical condition, authorizing up to only $2,500. § 627.736(1)(a)(4), Fla. Stat. However, nowhere in the statute does it address the situation where no determination of emergency medical condition has been made. We, therefore, find the statute to be ambiguous, compelling us to resort to other methods to determine the intent of the legislature. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012).

The court also notably inherits the opinion stated in the case of Robbins v. Garrison Property & Casualty Insurance Company. The Court concludes:

The case of Robbins v. Garrison Property & Casualty Insurance Co., 809 F.3d 583 (11th Cir. 2015), is most instructive. In that case, two separate plaintiffs proceeded with a PIP claim exceeding $2,500 where no medical provider had made any determination regarding whether each insured’s injury was “an emergency medical condition.” The court in Robbins recognized that both the insurer and the insureds were asking the court to impermissibly modify the statute.

The insurer asked the court “to read into the statute an affirmative obligation on the part of the insured to obtain a medical provider’s determination one way or the other about whether the condition was an emergency in order to receive any benefits at all.” Id. at 586. But the court refrained from doing so because “that obligation is not in the statute and we cannot add it.” Id.; see also B.C. v. Fla. Dep’t of Children & Families, 887 So. 2d 1046, 1052 (Fla. 2004) (“[W]e [are not] permitted to add to a statute words that were not placed there by the Legislature.”); State v. City of Fort Pierce, 88 So. 2d 135, 137 (Fla. 1956) (“It is not the province of this Court to rewrite the acts of the Legislature.”). The insureds in Robbins asked the court to read subparagraphs (1)(a)(3) and (1)(a)(4) out of the statute, saying they “essentially cancel[led] each other out,” resulting in a pre-existing limit of $10,000 where no determination of an emergency is made. 809 F.3d at 587. But the court also rejected this interpretation stating, “[T]he Florida Supreme Court has rejected negation arguments.” Id. (citing Am. Home Assurance Co., 908 So. 2d 360, 368 (Fla. 2005); Alexdex Corp. v. Nachon Enters. Inc., 641 So. 2d 858, 862 (Fla. 1994)).

On the issue of whether the medical provider must submit an EMC determination to get above the $2500 limit, they said;

We agree that section 627.736 “limits an insurer’s obligation to provide personal injury protection benefits to $2,500 unless one of the medical providers listed in subparagraph (1)(a)(3) has determined that the injured person had an emergency medical condition.” See id. at 588.

This case is somewhat different from Robbins however because appellant eventually submitted a determination that the insured had an emergency medical condition, whereas, in Robbins, the insured never submitted any determination of emergency medical condition. Nevertheless, USAA requested a written report of the insured’s medical condition to determine whether appellant was entitled to a payment exceeding the $2,500 statutory limit. Appellant initially failed to respond to this request, and instead submitted a demand letter for the payment of benefits. It was only after appellant filed suit that appellant submitted Dr. Chang’s determination that the insured had an emergency medical condition. Upon receiving the determination, USAA paid all outstanding charges until reaching the policy limits. We must, therefore, consider whether USAA had the right to receive a written report of insured’s condition prior to issuing a payment in excess of the $2,500 statutory limit.

THE NEED TO RESPOND TO EOR/EOB’S-

Another important issue raised in this case is whether a request for EMC determination will be treated like a 627.736(6)(b) request. Florida Statute 627.736(6)(b) states:

(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.—

(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial. Such sworn statement must read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” A cause of action for violation of the physician-patient privilege or invasion of the right of privacy may not be brought against any physician, hospital, clinic, or other medical institution complying with this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. As used in this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. An insurer that requests documentation or information pertaining to the reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.

The court in this matter keyed in on the wording condition to qualify that requesting an EMC determination was, in essence, a request for the condition of the patient as prescribed in 6b. “Based on the plain language of this subsection, as well as the title of the subsection, it is clear that the focus of this provision is the discovery of documents regarding the treatment and related billing of the individual injured person.” State Farm v. Delray Med. Ctr., 178 So. 3d 511, 515 (Fla. 4th DCA 2015). In the instant case, USAA appropriately requested a report on the insured’s medical condition. The report could likely have impacted USAA’s evaluation of whether a qualified medical provider had determined that the insured’s injury constituted an emergency medical condition. Consequently, appellant’s demand letter was premature. Although appellant filed a demand letter for payment of benefits, appellant failed to respond to USAA’s request for discovery pursuant to section 627.736(6)(b).

WHAT DOES THIS ALL MEAN?

The determination in the above raises to issues for medical providers.

This case establishes that if providers want to get paid above the $2500 cap, they need to submit an Emergency Medical Condition determination by a qualified person. This firm discusses who is qualified to give a determination in another blog post. Meaning, it is highly recommended to submit a determination with the first treatment of the patient. If you are not the type of facility who has a person qualified for EMC determinations, you need to advise your staff to be in constant communication with the facility who can and has treated the patient to make sure that they have submitted the EMC determination as well as that you keep a copy for your file.

The case also establishes that if you receive an Explanation of Benefits or Explanation of Review that states that they are looking for the condition of the patient or an EMC status, that this acts as a 6b request. Meaning, you must respond to this request with the EMC determination. Failure to respond will do two things. 1) You will not be paid above the $2500 cap. 2) Your bill will not be deemed “overdue”.

I remind you from other blog posts that only “overdue” claims can be demanded under the Demand Statute (627.736(10). If you fail to respond to the request and send the dates of service to my firm for demand I will not be able to demand those dates of service until after you submit the EMC determination and then wait 10 days from the receipt of such for the insurance company to make a determination. Meaning, you need to wait 10 days, after receipt and then another 5 (for mailing), for a total 15 days before giving us the dates to demand payment.

WHAT DOES THIS CASE NOT SAY?

This case has not answered the question of what to do legally when there is an EMC determination from a physician and also a determination by the insurance company stating there isn’t an EMC. This firm still believes an EMC determination can only be done by a “treating physician” Currently, the insurance companies are only shooting down EMC determinations with “Peer Review” doctors, who don’t actually treat the patients. For now, you need to submit these cases to my firm to demand and sue.

If all of the above is still confusing and you don’t know exactly what this means, or what you should do, call 727-222-6922 or email derek@dolmanlaw.com where you can speak to a Personal Injury Protection attorney, who is well-versed in all things PIP related.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900

https://www.dolmanlaw.com/legal-services/personal-injury-attorneys/pip/