14 Fla. L. Weekly Supp. 140b

Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Patient brokering — Fee splitting — Where medical provider to whom insured was referred for MRI sent insured to another company to perform MRI, and provider “leased” equipment from other company but performed neither technical nor professional component of MRI, arrangement is patient brokering and/or fee splitting prohibited by section 817.505 — No error in finding that provider cannot be reimbursed under PIP statute for services it did not render — Section 817.505 is constitutional

PROSPER DIAGNOSTIC CENTERS, INC., a/a/o Giovan Mayonschi, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-00233 (05). November 28, 2006. Counsel: Robert E. O’Connell, for Appellant. Jacqueline G. Emanuel, Riley, Knoerr & Emanuel, Fort Lauderdale, for Appellee.

ORDER

(RICHARD D. EADE, J.) THIS CAUSE having come before the Court upon Appellant’s direct appeal from the County Court. The Court having reviewed the appellate file in its entirety and otherwise being duly advised in the premises finds and decides as follows:

Appellant, PROSPER DIAGNOSTIC CENTERS, INC. (“PROSPER”) appeals a Final Summary Judgment in Favor of Defendant, ALLSTATE INSURANCE COMPANY (“ALLSTATE”). PROSPER brought a personal injury protection benefit claim, seeking payment from ALLSTATE pursuant to Fla. Stat. §627.736. The insured was referred to PROSPER’s facility for an MRI; however, the MRI was actually conducted by a separate facility, the MRI Scan Center. It is undisputed that PROSPER did not perform the MRI at issue, rather the technical component of the MRI was administered by the MRI Scan Center, and Dr. Robert L. Kagan, M.D., P.A., a radiology group (“Dr. Kagan”), provided professional (interpretive) services on the MRI. PROSPER paid the MRI Scan Center each month, for twenty hours of use of the MRI equipment, which was maintained by the MRI Scan Center.

The lower court rendered Final Summary Judgment in Favor of Defendant. ALLSTATE, finding that PROSPER’s arrangement with the MRI Scan Center and Dr. Kagan amounted to illegal patient brokering and/or fee splitting pursuant to Fla. Stat. §817.505. PROSPER argues entitlement to reimbursement, and further asserts Fla. Stat. §817.505 is inapplicable to an entity such as PROSPER; however, if the court finds Fla. Stat. §817.505 pertinent, PROSPER argues the arrangement does not constitute illegal patient brokering and/or fee splitting; therefore, PROSPER also challenges the constitutionality of Fla. Stat. §817.505.

The standard of review applicable to a final summary judgment is de novo. McKenna v. Camino Real Vill. Ass’n, Inc., 877 So.2d 900 (Fla. 4th DCA 2004). This Court reviews the judgment to determine if there remain any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Martin v. Florida Power and Light Co., 909 So. 2d 555 (Fla. 4th DCA 2005).

The undisputed facts in this case are indistinguishable from those presented in Medical Mgmt. Group of Orlando, Inc. v. State Farm Mut. Auto. Ins. Co., 811 So. 2d 705 (Fla. 5th DCA 2002), where an injured insured was referred to Medical Management Group of Orlando, Inc. (“MMGO”), which in turn sent the insured to another company, Premier Advanced Imaging Network (“Premier”), to perform the MRI. Similar to Appellant, MMGO “leased” equipment from Premier and performed neither the technical nor professional aspect of the MRI. Id. at 706. The court in Medical Mgmt. Group, determined that such an arrangement amounted to illegal patient brokering and/or fee splitting pursuant to Fla. Stat. §817.505, and the summary judgment in favor of State Farm was affirmed. Id. at 706.

Unlike the Appellant in Regional MRI of Orlando, Inc. v. Nationwide Mutual Fire Insurance Co., 884 So.2d 1102 (Fla. 5th DCA 2004), who actually performed the MRI and hired an independent contractor physician to interpret the MRI results, PROSPER administered neither technical nor professional medical services. In Regional MRI, the court distinguished its facts from Medical Mgmt. Group and Motion X-Ray, Inc. d/b/a Nu-Best Diagnostics Labs, Inc. v. State Farm Mut Auto. Ins. Co., 10 Fla. L. Weekly Supp. 346a (Fla. Orange County Ct. 2002), both are caseswhere the technical and professional components of the medical tests at issue were performed by another entity. In discussing the Motion X-Ray case, the Regional MRI court considered whether the Appellant, similarly situated to PROSPER, may be reimbursed under Fla. Stat. §627.736, and examined the meaning of the word “rendered” as it appears in Fla. Stat. §627.736:

“Rendered” does not include hiring another corporation or independent contractor to perform the medical services on the Plaintiff’s behalf.

Reg’l MRI of Orlando, Inc. v. Nationwide Mut. Fire Ins. Co., 884 So. 2d 1102, 1107 (Fla. 5th DCA 2004).

The lower court was correct in finding PROSPER cannot be reimbursed pursuant to Fla. Stat. §627.736, where PROSPER submitted an MRI bill for medical services they did not provide, in light of Medical Mgmt. Group v. State Farm and the distinctions enumerated in Regional MRI. The Patient Brokering Statute, Fla. Stat. §817.505, is applicable to PROSPER, and in accordance with Medical Mgmt. Group of Orlando, Inc., PROSPER’s arrangement with the MRI Scan Center and Dr. Kagan is prohibited by Fla. Stat. §817.505.

Although the lower court did not address Appellant’s constitutional challenge of Fla. Stat. §817.505, which PROSPER argued in response to the Motion for Summary Judgment, this issue may be raised in this proceeding. Lipe v. Miami, 141 So.2d 738, 743 (Fla. 1962). Similar to the constitutional challenge of Fla. Sta. §817.505, presented in State v. Rubio, 917 So. 2d 383 (Fla. 5th DCA 2005), PROSPER contends that §817.505 is unconstitutional. The court adopts the reasoning set forth in State v. Rubio, in finding that Fla. Stat. §815.505 is constitutional.

ORDERED AND ADJUDGED that the Trial Court’s Final Judgment is AFFIRMED.