11 Fla. L. Weekly Supp. 727a
Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Medical provider which performed technical component of MRI on machine it owns or leases, contracted with independent radiologist on non-contingent basis to perform professional component, transmitted MRI films to radiologist, received and transmitted interpretation to ordering physician and insurer, and billed insurer globally for both technical and professional component, rendered MRI within meaning of section 627.736(5) — Summary judgment for insurer is denied
AXCESS MRI, (as assignee of Donald Rogers), Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2003-CC-005628-MA, Division B. May 26, 2004. Roberto A. Arias, Judge. Counsel: Vincent P. Gallagher, The Gallagher Law Firm, Jacksonville. Mark R. Schultz.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court onDefendant’s Motion for Summary Judgment, by which the Defendant challenges the legality of Plaintiff’s global billing for MRI services in conjunction with Plaintiff’s use of an independent contractor hired to perform the professional componentof the procedure. The material facts are not in dispute.
Donald Rogers (“Rogers”) was involved in a motor vehicleaccident on October 3, 2002. The Defendant, Nationwide Mutual Fire Insurance Company (“Nationwide”), provided Personal Injury Protection (“PIP”) benefits to Rogers. As a result of injuries received in the accident, Rogers was examined by Dr. Mark Emas, a Jacksonville neurologist, who ordered a brain MRI from the Plaintiff, Axcess MRI (“Axcess”), in Jacksonville. Axcess performed the MRI on March 10, 2003, using its own employees to perform the technical component of the procedure in administering the MRI. Axcess either wholly-owned or leased the machines. Axcess then paid an independent radiologist on a non-contingent basis to perform the professional component of the procedure in interpreting the results, pursuant to a prior written contract. Axcess transmitted the MRI films to the radiologist, and received and transmitted the interpretation to Dr. Emas and Nationwide. Axcess then timely billed Nationwide globally for both the technical and professional components of the procedure on the appropriate form. The amount of the global bill allowed under the statutory cap equaled the combined amounts allowed under the statutory caps for the technical and professional components if each were separately billed. Nationwide refused to pay the entire medical invoice, and paid only the technical component, claiming that Axcess did not “render” the professional component in that theradiologist who performed the professional component was not an Axcess employee. Not surprisingly, a lawsuit was filed seeking PIP benefits and attorney fees for the unpaid professional component.
The arguments of the respective parties turn on the interpretation of “rendering”, as used in F.S. §627.736(5), which states, in pertinent part:
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge theinsurerand injured party only a reasonable amount pursuant to this section for the services and supplies rendered[.]
In evaluating this case, the Court is keenly aware of the Florida Supreme Court commandment regarding PIP litigation: the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption. See Ivey v Allstate Ins. Co., 774 So.2d 679 (Fla. 2000).
In Medical Management Group of Orlando, Inc. vs. State Farm Mutual Automobile Insurance Company, 9th Judicial Circuit in and for Orange County, Florida, Case No.: CIO-00-6161 (March 12,2001) [8 Fla. L. Weekly Supp. 361a], the MRI providerused a radiologist as an independent contractor to perform the professional component of an MRI, and globally billed the insurance company for both the technical and professional components of the procedure. The global bill was treated as valid. The case was appealed, however, because it involved a fee-splitting scheme unrelated to the issue of the provider’s global bill for both components of the procedure. The appellate court affirmed the lower court in finding that the provider had “performed the MRI”. See Medical Management Group of Orlando, Inc. vs. State Farm Mutual Automobile Insurance Company, 811 So.2d 705 (5th DCA 2002). Thus, at least one Florida District Court of Appeals has found the practice of global billing as implemented in this case to be lawful.
Axcess MRI (Wyche) vs. Nationwide Mutual Fire Insurance Company, Case No. 16-03-CC-5637-XXXX, Division D [11 Fla. L. Weekly Supp. 439a] of the County Court of the Fourth Judicial Circuit in and for Duval County, Florida, involved the same Plaintiff provider, the same Defendant insurance company, and the same issue as in this case. In that case, Axcess used its own employees to perform the technical component of the MRI, hired an independent radiologist to perform the professional component of the MRI, and globally billed Nationwide for both the technical and professional components of the procedure. As in this case, Nationwide refused to pay the entire medical invoice, and paid only the technical component on thegrounds that Axcess did not “render” the professional component because the radiologist performing the professional component was not an Axcess employee. The Duval CountyCourt stated the issue with which it was presented as follows:
It seems this issue turns onwhether or not the professional component is rendered by an employee of the MRI provider versus an independent contractor.
The Court ruled in favor of the Plaintiff on this issue. In doing so, the Court found the following:
This court finds that the two are indistinguishable. The independent contractor is given a 1099 for tax purposes. The total amount billed is thesame, regardless of the status of the person who provides the professional component and it seems to thecourt that global billing in this instance is more economical swift (sic) and makes more sense, rather than requiring the filing of two forms, one filed by the entity providing the technical component and one filed by the person or entity providing the professional component.
The Court continued with an analysis of the Florida Statutes in which the legislature could have proscribed or otherwise forbidden providers from globally billing for both the technical and professional components of an MRI when the professional component was performed by a radiologist hired as an independent contractor for such purpose, but apparently chose not to.
In Radiology B & Services, Inc. vs. Progressive Express Insurance Company, Broward County, Case 02-014779 COCE(54) (September 2003) [10 Fla. L. Weekly Supp. 935a], the MRI provider owned or leased the equipment and contracted with an independent radiologist to perform the professional MRI interpretation. The MRI provider paid the independent radiologist for the interpretation, and globally billed Progressive for both the technical and professional components. Progressive declined to pay the professional component, on the grounds that the radiologist was not Plaintiff’s employee. The Court ruled in favor of the Plaintiff on this issue. In doing so, the Court stated the following:
Even if Section 627.736(5)(a) is construed to require that Plaintiff be the provider that rendered the MRI services at issue to be eligible to receive payment of PIP benefits, nothing in the statute supports Progressive’s assertion that Plaintiff did not render the MRI services at issue because [the independent radiologist] was paid on a 1099 basis.
The phrase “rendering treatment” is not defined within the statute. It must therefore be interpreted according to its usual and customary meaning.
Webster’s defines “render” as “1. to cause to be or become; make; 2. to do; perform; 3. to furnish; provide.” There is nothing in the definition of the word “render” that supports Progressive’s assertion that Plaintiff did not “render” MRI services within the meaning of Fla. Stat. §627.736(5)(a) because [the independent radiologist] was paid on a 1099 basis.
In concluding that the Plaintiff rendered the MRI services at issue within the plain meaning of section 627.736(5)(a) of the Florida Statutes, the Court stated the following:
It is the long-standing policy of Florida courts to construe the PIP statute liberally and in favor of the insured. [See] Palma vs. State Farm fire and Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986). The PIP statute should be construed in order to give effect to the legislative purpose of providing a broader and more liberal standard of coverage. [See] GEICO vs. Novack, 453 So.2d 1116 (Fla. 1984).
In Oakland Park Open MRI, Inc. (K. Parrish) vs. Progressive Express Insurance Company, 11 Fla. Law Weekly Supp. 259a, County Court, 17th Judicial Circuit in and for Broward County, Florida (December 23, 2003), the Plaintiff performed an MRI of the insured and paid an independent radiologist to interpret resulting images. The Plaintiff submitted its global bill to the Defendant insurance company seeking payment for both the technical and professional components of the MRI. The insurance company disallowed the claim, contending that the Plaintiff did not “render” the professional component of the testing. In evaluating that case, the Court articulated the following issue to be addressed:
(1) Does the failure of a provider of technical services and the provider of professional services to report the technical and professional components separately result in an appropriate denial of payment?
In considering this issue, the Court noted that the term “rendering” used in F.S. §627.736(5) became part of Florida law in 1971, before the invention of MRI technology, and cannot therefore be said to contemplate a prohibition on the contractual arrangement between the Plaintiff and radiologist. The Court then looked to the definition of “rendering” contained in the Merriam-Webster Online Dictionary, the pertinent part of which states:
1ren·der
Function: verb
Inflected Form(s): ren·dered; ren·der·ing
2 a : to transmit to another: DELIVER b : GIVE UP, YIELD c : to furnish for consideration, approval, or information: as (1) : to hand down (a legal judgment) (2) : to agree on and report (a verdict)
3 a : to give in return or retribution b (1) : GIVE BACK, RESTORE (2) : REFLECT, ECHO c : to give in acknowledgment of dependence or obligation : PAY d : to do (a service) for another
4 a (1) : to cause to be or become : MAKE<enough rainfall. . . to render irrigation unnecessary–P. E. James> <rendered him helpless> (2) : IMPART b (1) : to reproduce or represent by artistic or verbal means : DEPICT (2) : to give a performance of (3) : to produce a copy or version of <the documents are rendered in the original French> (4) : to execute the motions of <render asalute> c : TRANSLATE
5 : to direct the execution of: ADMINISTER <render justice>
[Emphasis supplied]
The Court noted that the Plaintifffinanced the production of the professional component on a non-contingent fee basis, transmitted the subject images tothe radiologist, and received and transmitted the interpretation to the ordering physician and insurer with a bill submitted on the appropriate form. The Court stated that it “cannot reasonably be asserted that the Plaintiff was not involved in ‘rendering’ the complete professional service that included ordering, gathering, and forwarding the written interpretation, presentation of the claim to the insurer (all involving administrative expense) and the business risk that the entire claim might be subject to some other applicable insurance defense.” The Court further observed that the use of independent contractors in the delivery of health care services has been addressed in federal regulation of Medicare reimbursements specifically authorizing reimbursement of suppliers billing for contracted services [42 CFR section 424.80(b)(3)], and, although not effective at the time at which the cause of action in that case accrued, the Florida legislature has since established a public policy expressly protecting the manner of billing under review [F.S. section 627.732(14); Laws 2003, c. 2003-411, section 7, eff. October 1, 2003]. The Court found on such basis found that the Plaintiff had, in fact, “rendered” both the technical and professional components of the subject MRI, as such term is used in F.S. §627.736(5).
Another Court ruled differently on this issue in Regional MRI of Orlando vs. Nationwide Mutual Fire Insurance Company, OrangeCounty Court, Case SCO-02-5818, (September, 2003) [10 Fla. L. Weekly Supp. 1020c]. In that case, the patient presented to Regional MRI of Orlando, (“Regional”) for diagnostic imaging of the spine. Regional performed the technical component on equipment it either owned or leased, hired an independent radiologist to perform the professional component in interpreting the results of the MRI, and globally billed the Defendant insurance company for both the technical and professional componentsof the diagnostic testing. The insurance company refused to pay for the professional component. In certifying the question as one of great public importance, the Court articulated the issue to be addressed as follows:
[C]an a medical provider rendera medical service under Section 627.736(5)(a) when the medical service was provided through the use of an independent contractor?
In deciding the issue, the Court determined that F.S. 627.736(5)(a) requires a provider to “lawfully render” a medical service in order to be entitled to remuneration for that service, and found as a matter of law that the use of the word “render” in the statute is clear and unambiguous. Without citing to any authority, the Court further stated that “render” means, within the context of the statute, to “perform” the medical services for which recovery is sought, thereby precluding the hiring of another party or independent contractor for such purpose. The Court accordingly held that Regional could not collect the PIP benefits for the professional component after hiring an independent contractor to interpret the results of the MRI.
The Court in Regional MRI of Orlando apparently implemented its own understanding of the plain meaning of “render” in formulating its ruling. “Perform” is one definition of “render” that can be applied in determining this issue, but it is not the only such definition set forth in both Webster’s dictionary and the Merriam-Webster Online Dictionary, supra. If a statutory term is susceptible to more than one reasonable interpretation, it is necessary to resort to principles of statutory construction to ascertain the legislative intent. See Jane Rollins, et al. vs. Michael Pizzarelli, et al., etc., 761 So.2d 294 (Fla. 2000). One of the most fundamental tenets of statutory construction requires that we give a statutory term undefined by statute its plain and ordinary meaning. Id. at 298. When necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary. Id. The term “render” is clearly susceptible to more than one reasonable interpretation, as evidenced by the number of cases involving this issue and the different definitions for such term contained in dictionaries. By implementing its own understanding of the plain meaning of “render” and ignoring the other applicable definitions of “render” contained in dictionaries, the Court in Regional MRI of Orlando failed to follow the rules of statutory construction set forth by the Florida Supreme Court in Rollins, supra, and thereby improperly narrowed the meaning of the term.
This Court finds that, where an MRI provider uses its employees to perform the technical component of an MRI on a machine it wholly owns or leases, hires a radiologist as an independent contractor on a non-contingent basis to perform the professional component of the MRI in interpreting the results, transmits the MRI films to the radiologist, receives and transmits the interpretation to the ordering physician and the insurer, and timely bills theinsurer for both components on the appropriate form, the use of the radiologist as an independent contractor is indistinguishable from the use of a radiologist as an employee for such purpose under F.S. §627.736(5). This Court further finds that insurers suffer no prejudice when required to pay legitimate global bills for both the technical and professional components of an MRI submitted under F.S. §627.736(5) in which the professional component was performed by a radiologist hired as an independent contractor, because the statutory caps for such global bills either equal or substantially equal the combined amounts allowed under the statutory caps for the technical and professional components if each were billed separately. As such, an MRI provider that performs these actions in bringing about the production of both the technical and professional components of an MRI “renders” the MRI, as such term is used in the context of F.S. §627.736(5). This Court finds on such basis that Axcess “rendered” the MRI in this case, as such term is used in the context of F.S. §627.736(5). Summary judgment for Defendant is accordingly DENIED.
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