11 Fla. L. Weekly Supp. 745b
Insurance — Personal injury protection — Coverage — Nerve conduction testing — Lawfully rendered treatment — Insurer is absolved of liability for payment of charges for nerve conduction testing submitted by provider which performed both technical and professional component of test and had financial agreement with company wholly owned by referring chiropractor under which company would receive 51% of amount charged to insurer for technical component — Treatment was not lawfully rendered where provider and referring chiropractor’s company violated prohibitions against kick-backs and split-fee arrangements
SOUTHEAST DIAGNOSTICS, INC. (Paula Welch), Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-23832 COCE 52. June 10, 2004. Jay S. Spechler, Judge. Counsel: Andrew Wyman, for Plaintiff. Harriett Uris, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ALLSTATE INDEMNITY COMPANY
THIS CAUSE having come before this Court for hearing on June 7, 2004, on Defendant’s Allstate Indemnity Company, Motion for Final Summary Judgment, and the Court having reviewed the file, including all record evidence submitted, supporting documents and this Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that the Defendant, Allstate Indemnity Company’s, Motion for Summary Judgment is hereby granted, based on the following:
1. Allstate Indemnity Company’s insured, Paula Welch, was allegedly involved in an automobile accident on April 23, 2001.
2. Following the subject accident, Paula Welch began receiving chiropractic treatment from Dr. Fred Hether.
3. Dr. Fred Hether referred Paula Welch to his company, Nova Diagnostics, Inc., for nerve conduction testing.
4. Nova Diagnostics, Inc. in turn contracted with Plaintiff, Southeast Diagnostics, Inc., to perform the nerve conduction testing on Paula Welch at Dr. Fred Hether’s office.
5. Dr. Fred Hether is the sole owner, President and sole employee of Nova Diagnostics, Inc.
6. Nova Diagnostics, Inc. has the same physical address as Dr. Fred Hether, D.C.’s office.
7. Nova Diagnostics, Inc. owns no diagnostic testing equipment.
8. Plaintiff, Southeast Diagnostics, Inc. provided the technician and the equipment used to perform the nerve conduction studies on Paula Welch. Also, Plaintiff, Southeast Diagnostics, Inc., provided the physician that interpreted the studies.
9. Neither Dr. Fred Hether nor Nova Diagnostics, Inc. performed any part of the nerve conduction testing.
10. Plaintiff, Southeast Diagnostics, Inc. and Nova Diagnostics, Inc., are separate and distinct corporations.
11. Plaintiff, Southeast Diagnostics, Inc. and Nova Diagnostics, Inc. had a financial agreement by which Nova Diagnostics, Inc. was to receive 51% of the amount charged for the technical component of the nerve conduction testing referred by Dr. Fred Hether and performed at Dr. Fred Hether’s office, and
12. Plaintiff, Southeast Diagnostics, Inc. agreed to accept 49% of the amount charged to Allstate Indemnity Company for the technical component of the nerve conduction studies performed on Paula Welch and the entire amount billed for the professional component.
Based on the above, this Court finds that Nova Diagnostics, Inc., and Plaintiff, Southeast Diagnostics, Inc., violated Florida Statute §817.505.
Florida Statute §817.505 (2001) provides: It is unlawful for any person . . . to: (b) solicit or receive any commission, bonus, rebate, kickback or bribe, directly or indirectly, in cash or in kind, or engage in any split fee arrangement, in any form whatsoever, in return for referring patients or patronage to a health care provider of health care facility . . . (emphasis added).
Additionally, Nova Diagnostics, Inc. and Plaintiff, Southeast Diagnostics, Inc. violated Florida Statute §455.657.
Florida Statute §455.657 (2001) provided: It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients. (Emphasis added)
Florida Statute §627.736(5) provides in short that an insurer is only responsible for payment of lawfully rendered treatment. The Defendant, Allstate Indemnity Company, is absolved of liability for payment of the charges submitted by Southeast Diagnostic, Inc. in that the treatment was not lawfully rendered.
WHEREFORE, based upon the record evidence and the findings and conclusions set forth above, Final Summary Judgment is hereby entered in favor of the Defendant, Allstate Indemnity Company, and it is hereby adjudged that the Plaintiff, Southeast Diagnostics, Inc., take nothing by this action and the Defendant, Allstate Indemnity Company, shall go hence without day.
The Court reserves jurisdiction for any Motions to Determine Taxation of Costs and/or Attorney’s Fees.
* * *
