12 Fla. L. Weekly Supp. 484a
Insurance — Personal injury protection — Claim forms — Motion for rehearing of order granting summary judgment in favor of insurer is denied where medical provider failed to satisfy condition precedent of submitting properly completed statement or bills, by failing to include license number of treating physician in Box 31 of HCFA forms until after suit was filed and two months after being warned by insurer of defect, and failed to obtain leave of court to abate action to allow re-submission of properly completed bill — Suggestion that compliance with statute requiring submission of completed form could be met by quick Internet search for physician’s license number is rejected where legislature did not provide for this alternative to statutory scheme
PROFESSIONAL MEDICAL GROUP, INC., a/a/o ARIEL HERNANDEZ, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 04-6746-CC-25-(01). January 24, 2005. Mark King Leban, Judge. Counsel: Armando A. Brana, Coral Gables. Alberto M. Valdes, U.S. Security Insurance Company, Inc., Miami.
ORDER DENYING PLAINTIFF’S MOTION FOR REHEARING
THIS CAUSE having come before the Court on Plaintiff’s Motion for Rehearing with respect to the Court’s December 28, 2004, order granting Defendant’s Motion for Summary Judgment and Final Summary Judgment, and the Court being fully advised in the premises, hereby finds and concludes as follows:
On December 28, 2004, this Court entered its order granting defendant’s motion for final summary judgment as to Count I of the plaintiff’s complaint, predicated upon plaintiff’s failure to include in Box 31 of the HCFA forms the license number of the treating physician. It is undisputed, indeed, admitted in plaintiff’s rehearing motion that “Plaintiff’s HCFA forms did not include the license number of the treating physician.”
Defendant’s summary judgment motion was filed on October 13, 2004. Prior to that date, and as admitted by plaintiff, the HCFA form failed to include the treating physician’s license number. The defendant, U.S. Security Insurance Company, had, by letter dated April 29, 2004, advised the treating physician, Dr. Francisco Vasquez, that his “bills received for dates of services 02-02-04 to 04-08-04 were improperly submitted pursuant to Florida Statue [sic] 627.736(5)(d).” The defendant’s April 29, 2004, letter further advised the treating physician that “[p]ayment will be delayed until your bills are resubmitted and are in compliance within a timely fashion.” [Emphasis added]. Notwithstanding the defendant’s providing to the plaintiff and Dr. Vasquez an opportunity to correct the statutory defect (failing to include the license number in Box 31), plaintiff failed to do so until well after its lawsuit was filed against defendant on or about June 25, 2004, nearly two months after being warned by the defendant of the statutory defect noted above.
Section 627.736(5)(d), Florida Statutes, provides that providers “shall include on the applicable claim form the professional license number of the provider in the line or space provided for” on the HCFA form. In addition, this subsection expressly states that “[f]or purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.” [Emphasis added].
Accordingly, at the December 28th hearing on defendant’s motion for summary judgment, it was undisputed that a condition precedent to the filing of the instant lawsuit, namely, submission of statements or bills “properly completed in their entirety as to all material provisions, with all relevant information being provided therein,” had not been met.
Plaintiff complains in its motion for rehearing that this Court failed to consider or overlooked the fact that plaintiff, on December 1, 2004, purportedly sent to defendant “fully executed HCFA forms” which presumably contained the missing license number of the treating physician. Moreover, plaintiff asserts that this Court has overlooked the fact that the plaintiff filed a “Motion to Abate Cause of Action to Allow Re-Submission of Plaintiff’s Medical Bills,” in which plaintiff sought an order abating this action to allow the “re-submission of the HCFA forms with the license [number].” This Motion to Abate was filed on December 13, 2004 (not as plaintiff asserts in its rehearing motion to December 1, 2004), and was set for hearing one day later on December 14, 2004. For reasons that are unclear, the December 14th hearing was canceled at the request of counsel for the defendant. Contrary to plaintiff’s assertion in its rehearing motion, defense counsel’s letter requesting cancellation of the December 14th hearing is directed not to the Motion to Abate, but, instead, to a Motion for Protective Order, also apparently scheduled for the same date and time. Indeed, plaintiff’s notice of hearing for the motion to abate went out on December 1, 2004 (and is not file stamped until December 13, 2004), while defendant’s motion seeking to reschedule the December 14th hearing on the Motion for Protective Order is dated November 30, 2004. In any event, plaintiff failed to reschedule its Motion to Abate prior to the December 28, 2004, hearing on defendant’s motion for summary judgment. Thus, to the extent that plaintiff is asserting that it would be unjust to allow the defendant to reschedule the hearing on the motion to abate until after the summary judgment hearing, the facts simply do not bear out such a motivation by the defendant.
More importantly, and this Court expressly concludes, plaintiff may not cure a condition precedent to the filing of this lawsuit by retroactively submitting to the insurer completed HCFA forms,1 especially where plaintiff was fully warned, prior to the filing of its suit, of the defect in its presuit HCFA forms. Once the lawsuit was filed, it was subject to dismissal (which arguably could have been without prejudice to the refiling of the suit after proper submission of completed HCFA forms), or, as has now occurred, the granting of final summary judgment due to the fatal defect.
Thus, it is not this Court’s omission that led to the granting of final summary judgment, but plaintiff’s own failure to comply with section 627.736(5)(d), Florida Statutes, prior to filing suit despite twice being alerted of the defect,2 and failure to obtain leave of Court to abate this action to allow re-submission of properly submitted medical bills (assuming arguendo that such a practice could retroactively cure the defect).
Finally, this Court rejects plaintiff’s suggestion that compliance with the statute could be met by “a quick Internet search [which] would have revealed the license number of the treating physician. . .”. It was for the legislature to provide this alternative to the statutory scheme that it promulgated, a procedure it wisely failed to implement.
Based upon the above and foregoing, it is accordingly,
ORDERED and ADJUDGED that plaintiff’s motion for rehearing be and the same is DENIED.3
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1To this date, the purportedly corrected HCFA forms do not appear in the Court’s file, but it is assumed by the Court that they were duly submitted, albeit, too late, to the defendant.
2In addition to its April 29, 2004, letter to the provider, the defendant sent yet another letter to the provider dated June 3, 2004, advising that “the bills submitted were not in compliance with FL St. 627.736(5)(d) therefore payment was denied.” See Exhibit B, attached to affidavit of Grisel Muina. Again, suit was filed on June 25, 2004.
3The previously scheduled hearing on plaintiff’s Motion to Abate of January 24, 2005, at 9:30 a.m., is removed from this Court’s calendar as moot.
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