10 Fla. L. Weekly Supp. 720c
Insurance — Personal injury protection — Coverage — Unregistered medical provider — Fully mobile diagnostic testing company which provides medical services at offices of physicians requesting services and uses own office only to prepare reports does not meet statutory definition of clinic required to register with Department of Health
WISE DIAGNOSTIC SOLUTIONS, as assignee of Rachael Miller, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 02-CC-13744, Division B. July 2, 2003. Roberto A. Arias, Judge. Counsel: Kevin J. Loftus, Harrell & Johnson, P.A., Jacksonville, for Plaintiff. James C. Rinaman, III, Jacksonville.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came on to be heard upon the Plaintiff’s Motion for Partial Summary Judgment. Present before the Court appeared Kevin Loftus, Esquire, on behalf of the Plaintiff, and Edward H. Merrigan, Esquire, on behalf of the Defendant. After having heard the arguments of counsel, reviewed the file and pleadings in the case, as well as, considered the legal memoranda filed by both Plaintiff and Defendant, the Court finds that:
UNDISPUTED FACTS
A. Rachael Miller had an automobile insurance policy with the Defendant, Progressive Express Insurance Company, which afforded her Personal Injury Protection Benefits (PIP). On or about February 3, 2002, the insured, Ms. Miller, sustained personal injuries as a result of an automobile accident. Thereafter, she commenced a continuous course of treatment at Complete Medical Services in Pensacola, Florida, under the care of Dr. Noel A. Pacheco, M.D.
B. On or about September 12, 2002, the Plaintiff, Wise Diagnostic Solutions, at the direction and request of Ms. Miller’s treating physician, Dr. Pacheco, conducted a series of comparative muscle tests and range of motion tests on Ms. Miller, the insured.
C. The Plaintiff is a fully mobile diagnostic testing company. The Plaintiff’s office is located at 2838 Spanish Cove Trail, Jacksonville, Florida 32257 which is the home of it’s president, Phillip W. Leber. There are no actual medical services provided at the business address. The office of the Plaintiff is used exclusively to prepare reports which are submitted to the physicians that request the Plaintiff’s services and to maintain the companies records. The actual medical services provided by Plaintiff are done at the requesting physicians’ offices. At the time the diagnostic tests were performed, the Plaintiff was not registered as required by Section 456.0375, Florida Statutes Annotated.
D. The Plaintiff, subsequent to conducting it’s test on the insured, submitted it’s bill for payment to the Defendant.
E. The Defendant has refused to pay the Plaintiff because, according to the Defendant, under Section 456.0375 (2001), Florida Statutes, the Plaintiff was required to register with the Florida Department of Health at the time it rendered health care services to the insured. Therefore, the Defendant contends, the Plaintiff was an unlicensed health care provider and, under Section 456.0375(4)(a), the Plaintiff’s charges or reimbursement claims were “unlawful charges” and therefore, not compensable and unenforceable.
F. The Plaintiff has never conducted actual medical services at it’s business address and does not intend to do so in the future.
G. On or about October 18, 2002, the Plaintiff filed this action to compel payment of the medical bills due and owing to the Plaintiff. The Plaintiff filed the Motion for Summary Judgment claiming that the Plaintiff’s business is not required to be registered under Section 456.035.
DISCUSSION OF ARGUMENTS AND LAW
H. The parties’ main legal issue is whether Section 456.0375 (2001), Florida Statutes, requires Wise Diagnostic Solutions to register with the Department of Health. Section 456.0375, Florida Statutes provides, in relevant part:
Registration of certain clinics; Requirements; Discipline; Exemptions.
— (1)(a) As used in this section, the term “clinic” means a business operating in a single structure or facility or in a group of adjacent structures or facilities operating under the same business name or management at which health care services are provided to individuals and which tender charges for reimbursement for such services.
The above section excludes from the term “clinic” a very long list of entities. The excluded entities include those or otherwise licensed under Chapter 390 (Abortion), 394 (Mental Health), 400 (Nursing Homes), 463 (Optometry), 465 (Pharmacy), 466 (Dental), 478 (Electrolysis), 480 (Massage), 483 (Optical), as well as group practices, partnerships and corporations that are already licensed in accordance with Chapters 457, 462, 463, 466, 467, 484, 486, 490, 491 and 498. Under the provisions of this section, therefore, any entity that qualifies as a “clinic” and is not excluded under the statute, “must register, and must at all times maintain a registration with the Department of Health.” Section 456.0375(2)(a) (2001), Florida Statutes Annotated (2001).
I. Several County Courts in the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida have considered the same issues considered by this Court and have reached opposite results. Diagnostic Services of Florida, Inc., a/a/o Sarody Milian v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 858a (11th Cir. 2002); Diagnostic Services of South Florida a/a/o Ondina Comesana v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 855a (11th Cir. 2002); and Diagnostic Services of South Florida, a/a/o Frederico Pena v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 862a (11th Cir. 2002). The arguments presented before this Court are identical to the arguments presented to the County Courts which considered the referenced cases.
J. The Defendant has submitted several arguments supporting their view that the Court should deny Plaintiff’s Motion for Summary Judgment. The Defendant argues that the Plaintiff was required to register as a clinic with the Florida Department of Health under Section 456.0375, Florida Statutes. The Defendant maintains that, since the Plaintiff was not so registered, the Defendant’s charges were not lawfully rendered. Consequently, under Section 627.736(5)(a), Florida Statutes, (Florida Motor Vehicle No Fault Act), the Defendant is legally obligated not to pay the Plaintiff’s bills.
K. “Florida case law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes. However, when the language of the statutes is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given it’s plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984); Markham v. PPI, Inc., 843 So.2d 922 (Fla. 4th DCA 2003). Consequently, “Courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Holly, id. “The Courts have no function of legislation, but simply seek to effectuate the intent of the Legislature. It is true there are cases in which it has been held that the letter of a statute must yield to a contrary legislative intent obviously appearing from the statute when considered as a whole or in pari materia with other statutes (citation omitted). Such cases are few and exceptional. Such a construction is sanctioned by the Courts only when there are cogent reasons for believing that the letter does not accurately disclose the intent.” Hanbury v. Tunnicliffe, 124 So. 279 (Fla. 1929) (omitting citations). Section 456.0375, Florida Statutes clearly defines the “clinic” which is subject to the requirements of the statute. The Florida Legislature through that same section provides for certain exemptions for specific types of “clinics”. This Court is powerless to construe the definition of “clinic” any other way than that which the Legislature has clearly defined, as the Court could only resort to the definition of “clinic” either in case law or in it’s plain and ordinary meaning, only if the term “clinic” was not defined by the statute. Rollins v. Pizzarelly, 761 So.2d 294 (Fla. 2000). By applying the statute’s definition, the Court finds that the Plaintiff would not be required to register because the Plaintiff’s business would not fall under the statutory definition of “clinic.”
L. Both parties have invoked the principle of statutory construction “expressio unius est exclusio alterius.” This maxim translated from the Latin means that the express mention of one thing is the exclusion of another. Bergh v. Stephens, 175 So.2d 787 (Fla. 1st DCA 1965). This maxim also controls the outcome of this case. The Court agrees with the analysis of this issue as found in Diagnostic Services of South Florida a/a/o Ondina Comesana v. State Farm Automobile Insurance Company, 9 Fla. L.Weekly Supp. 855a (11th Cir. 2002). This principle of statutory construction indicates that the Legislature intended to exclude providers of medical services similar to the Plaintiff by the Legislature’s definition of “clinic”. It is obvious that this Plaintiff does not meet the definition of clinic under the statute. Under Subsection (2)(b)(3), the clinic is “to display the registration certificate in a conspicuous location within the clinic readily visible to all patients” (emphasis added). Additionally, under Subsection (3)(b)(1), the medical or clinical director of the clinic shall “[h]ave signs identifying the medical director or clinical director posted in a conspicuous location within the clinic readily visible to all patients” (emphasis added). Lastly, the definition provided requires that the medical services be provided at the physical structure or facility of the “clinic”. Therefore, the Legislature must have and envisioned this statute to apply to medical providers which provide medical services out of businesses operating in physical structures or facilities to which patients would go to obtain those medical services. Otherwise, it would be rather absurd to require the posting of the signs and registration certificates at the Plaintiff’s physical address where no patients would ever go. “If the Legislature intended to include these providers, it could have defined “clinic[ ]” as any and all medical providers which treat automobile accident patients with an intent to bill for said services.” Diagnostic Services of South Florida, supra, or similar all-inclusive language. After all, the “legislature is presumed to know the meaning of words and the rules of grammar and the only way the Court is advised of what the legislature intends is by giving the statutory language its generally accepted construction.” State v. Hubbard, 751 So.2d 552, 562 (Fla. 1999).
M. A review of the second interim report of the 15th Statewide Grand Jury report on Insurance Fraud related to Personal Injury Protection which apparently led the Legislature to enact this statute, leads this Court to believe that the Legislature would want to similarly regulate the medical providers such as the Plaintiff in this cause. However, such mandated regulation should come only from the Legislature which is the branch of government to whom it is given the power to legislate.
N. Lastly, the Court is not persuaded with the Florida Department of Health’s interpretation that the statute requires mobile diagnostic providers as Plaintiff to register. It is this Court’s opinion that such an interpretation conflicts with the plain meaning of the statute, and therefore, such a rule or interpretation would be invalid. State Department of Insurance v. Insurance Services Office, 434 So.2d 908 (Fla. 1st DCA 1983).
For the above stated reasons, it is hereby
ORDERED AND ADJUDGED:
The Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.
* * *
