15 Fla. L. Weekly Supp. 1102a
Insurance — Personal injury protection — Coverage — Medical expenses — Overdue bills — Request for documentation/information — Tolling of period to pay or reject claim — Where insurer made timely request for additional documentation and information regarding claim, and provider failed to provide all documents and information requested until after suit was filed, time for payment of claim was tolled, and claim was not overdue and collectible at time of filing suit — No merit to argument that substantial compliance with request for documentation and information is sufficient — Med Pay — Since PIP coverage is primary under terms of policy and PIP statutes, provider is not entitled to recover under Med Pay coverage for claims not payable under PIP coverage
FIRST HEALTH CHIROPRACTIC, A/A/O MIGUEL AMILL, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 03-CC-4741. May 16, 2008. Wilfredo Martinez, Judge. Counsel: Hans Kennon, Morgan and Morgan, Orlando, for Plaintiff. Robert M. Lyerly, Masten, Lyerly, Peterson, Denbo & Gobel, LLC, Orlando, for Defendant.
ORDER GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF
THIS CAUSE having come before the Court on Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law, and after having considered the arguments of counsel and reviewing the record evidence, the Court finds as follows:
I. Undisputed Facts
1. Defendant issued a personal automobile insurance policy to Miguel Amill and Corina Leifheit which provided Personal Injury Protection (hereinafter (“PIP”) and Medical Payment Coverage (“MPC”) benefits subject to the terms and conditions of the policy and as otherwise provided for by Florida Statutes, §627.736.
2. On October 12, 2002, while the aforementioned policy was in full force and effect, Mr. Amill was purportedly injured while occupying the insured vehicle.
3. As a result of the aforementioned motor vehicle accident, Mr. Amill sought treatment with a medical provider in Kissimmee, Florida who utilized the unregistered fictitious name First Health Chiropractic.
4. First Health Chiropractic, pursuant to an assignment of benefits executed by Mr. Amill, submitted claims to Defendant seeking direct payment of PIP and MPC benefits for dates of service from November 6, 2002 through November 11, 2002. The records submitted consisted of the following:
A. Comprehensive Chiropractic Examination report for date of service November 6, 2002;
B. Therapy Notes for November 6, 2002 & November 11, 2002;
C. Health Insurance Claim Forms (HCFA) for November 6, 2002 and November 11, 2002;
D. Attending Physician Report;
E. Application for No-Fault Benefits; and
F. Assignment of Benefits.
5. The initial claims for dates of service from November 6, 2002 through November 11, 2002 were paid in full by Defendant.
6. On December 17, 2002 (less than 30 days from the first date of service at issue in the litigation), Defendant requested additional documentation and information regarding the history, condition, treatment and costs of treatment purportedly provided to Mr. Amill pursuant to Florida Statutes, §627.736(6)(b) (“6b”). More specifically, Defendant requested the entire chart for Mr. Amill, “including, but not limited to all forms signed by and or completed by the patient (Assignments of Benefits, HCFAs, Patient Intake forms, etc.), prescriptions, records from prior and/or subsequent trauma, and updated patient ledgers with credits.” Defendant also requested copies of all x-ray (films) and the names of all principals of First Health Chiropractic, Inc.
7. First Health Chiropractic responded to Defendant’s request for documentation and information; however, First Health Chiropractic provided only a portion of the documentation and information requested. More specifically, on January 6, 2002, Defendant received the following:
A. History of Auto Accident Form completed by Mr. Amill;
B. Patient Information Form completed by Mr. Amill;
C. Spinal Imaging, Inc. report dated November 21, 2002;
D. Comprehensive Chiropractic Examination for date of service November 6, 2002;
E. SOAP Notes for dates of service November 6, 2002, November 11, 2002, November 20, 2002 and December 3, 2002.
8. On January 30, 2002, Defendant received the following:
A. Therapy Notes for dates of service November 11, 2002, November 20, 2002, December 3, 2002, December 12, 2002 and January 9, 2002;
B. Attending Physician Report; and
C. Medical/Wage Authorizations signed by Mr. Amill.
9. On March 6, 2003, Defendant followed up on its request for documentation or information regarding the history, condition, treatment and cost of treatment. Defendant specifically requested that First Health Chiropractic provide:
A. All forms signed and/or completed by the patient (AOB, HCFAs, etc.);
B. Prescriptions;
C. Updated ledgers with credits;
D. Copies of X-Ray films;
E. Names of principles of First Health Chiropractic, Inc.; and
F. Contracts and/or agreements the principals/clients have with Spinal Imaging, Inc.
10. In response to the March 6, 2003 correspondence, First Health Chiropractic provided documentation which was previously provided. The documents provided were as follows:
A. Spinal Imaging Inc. Report dated November 21, 2002;
B. Request for Payment of records from First Health Chiropractic dated March 12, 2003;
C. History of Auto Accident From completed by Mr. Amill;
D. Patient Information From completed by Mr. Amill;
E. Comprehensive Chiropractic Examination for date of service November 6, 2002;
F. SOAP notes for dates of service November 11, 2002, November 20, 2002, December 3, 2002, December 12, 2002 and January 9, 2003, January 14, 2003 and February 3, 2003.
11. First Health Chiropractic failed and/or refused to provide all of the specific documentation requested in the prior correspondence.
12. On July 1, 2003, after suit was filed, Defendant received for the first time some of the additional documentation and information requested in the December 17, 2002 and March 6, 2003 “6b” requests. More specifically, after suit was filed, Plaintiff provided the following:
A. Letter of Protection signed by Mr. Amill that identified the medical provider as N & W Health and Wellness Center;
B. Agreement to Lien to First Health Chiropractic/N&W Health and Wellness;
C. Limited Power of Attorney to Endorse Checks for First Health Chiropractic/N&W Health and Wellness;
D. Personal Injury Policy form that identified the medical provider as First Health Chiropractic/N&W Health and Wellness;
E. X-Ray Assignment Agreement signed by Mr. Amill in favor of Spinal Imaging, Inc.; and
F. Blank HCFA signed by the patient;
13. It is also undisputed that for the first time, two days prior to the hearing on Defendant’s Motion for Summary Judgment, Plaintiff provided Defendant with the ledger showing the debits and credits relating to the services provided to Mr. Amill and a computer printout regarding Mr. Amill’s account.
14. It is important to note that four (4) of the eight (8) documents produced after suit was filed identify the medical provider as either N & W Wellness Center or First Health Chiropractic/N & W Health & Wellness.
15. On or about April 24, 2003, First Health Chiropractic, as assignee of Mr. Amill, filed suit against Defendant alleging that Defendant failed to pay PIP benefits in a timely manner in accordance with the policy and applicable Florida law.
16. On May 14, 2003, Defendant served its Answer, Affirmative Defenses and Demand for Jury Trial which raised five affirmative defenses, which include the following:
A. The bills for medical services allegedly rendered by First Health Chiropractic, were not due and owing due to First Health Chiropractic’s failure and/or refusal to provide additional documentation as required by Florida Statutes, Section 627.736(6)(b) after repeated requests;
B. That Plaintiff’s claim was barred because the name “First Health Chiropractic” was an unregistered fictitious name in violation of Florida Statutes, §865.09;
C. The services were not lawfully rendered due to the fact that the services were the direct and proximate result of an improper solicitation prohibited by Florida Statutes Section 817.234(8);
D. That Plaintiff lacked standing because the assignment of benefits upon which it was relying was in the name of “First Health Chiropractic” the fictitious name for Beville Chiropractic Consultants and/or Vincent Proscia; and
E. That Plaintiff lacked standing because the claim forms were not countersigned by the insured as required by Florida Statutes, §627.736(5)(a).
17. On October 23, 2003, Defendant took the deposition of the treating physician, Mark Nalley, D.C. Mr. Nalley testified that the individuals who performed and/or provided the treatment to Mr. Amill were employees of N & W Health and Wellness, Inc. This fact was also confirmed by way of Plaintiff’s responses to Defendant’s request for admissions at a later date.
18. On May 18, 2004, Defendant filed its Motion to Amend Defendant’s Answer, Affirmative Defenses and Demand for Jury Trial to include a sixth affirmative defense that Plaintiff lacked standing to maintain the action due to the fact that First Health Chiropractic, Inc. did not perform the medical services for which recovery was sought, but instead, the services were performed by a separate and distinct corporate entity, N & W Health and Wellness. Furthermore, N & W Health and Wellness had not submitted any claims to Defendant seeking direct payment of PIP benefits as required by the terms of the policy and Florida Statutes, §627.736.
19. Defendant ultimately served and filed its Second Amended Answer, Affirmative Defenses and Demand for Jury Trial which contained additional defenses, none of which are relevant to the present order.
20. It is also important to note that there were at least four (4) separate clinics in the Central Florida area that also used the fictitious name, “First Health Chiropractic.”
21. On or about October 24, 2003, Plaintiff filed a second cause of action, First Health Chiropractic, as assignee of Miguel Amill v. State Farm Fire & Cas. Co., case no.: 03-CC-15813, which stated a separate cause of action for unpaid medical payments benefits.
22. Pursuant to the Joint Stipulation to Consolidate filed under certificate dated January 17, 2005, the case titled First Health Chiropractic, as assignee of Miguel Amill v. State Farm Fire & Cas. Co., case no.: 03-CC-15813 was consolidated with the above referenced matter for purposes of discovery and/or trial.
23. On or about March 11, 2005, the Court heard Defendant’s Motion for Summary Judgment (Lack of Standing served under certificate dated August 31, 2004).
24. The Court treated Defendant’s Motion for Summary Judgment as a Motion to Dismiss and/or Abate. The Court denied the Motion to Dismiss and granted the Motion to Abate the action until such time that Plaintiff, First Health Chiropractic, complied with the fictitious name statute, Florida Statutes, §865.09.
25. On or about March 25, 2005, Plaintiff filed its Motion to Vacate Abatement due to is compliance with Florida Statutes, §865.09. Even though Plaintiff complied with the fictitious name statute in late March 2004, Plaintiff did not seek leave to amend its Complaint to First Health Chiropractic, Inc., d/b/a First Health Chiropractic until July 13, 2006. Plaintiff did not set the motion for leave to amend its Complaint for hearing. Instead, the Court granted Plaintiff’s Ore Tenus motion for Leave to amend its Complaint at the same time that it denied Plaintiff’s Motion for Summary Judgment as to Defendant’s Second through Seventh Affirmative Defenses on February 27, 2007.
26. It is also important to note that effective August 12, 2002 — two months before Mr. Amill’s first treatment — the fictitious name “First Health Chiropractic” was registered to Beville Chiropractic Consultants, Inc. and/or Vincent Proscia and utilized by several other medical providers in the Central Florida area. It is also uncontested that employees of N & W Health and Wellness performed the services for which recovery was sought, not First Health Chiropractic, Inc., d/b/a, First Health Chiropractic.
II. Legal Analysis
27. Florida Statutes, §627.736(6)(b) provides in pertinent part as follows:
(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.
* * *
(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested to do so by the insurer against whom the claim has been made, furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment; provided that this shall not limit the introduction of evidence at trial. Such sworn statement shall read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” No cause of action for violation of the physician-patient privilege or invasion of the right of privacy shall be permitted against any physician, hospital, clinic, or other medical institution complying with the provisions of this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. For purposes of this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. Any insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code. (emphasis added)
28. It is clear and well settled that Florida Statutes, §627.736(6)(b) provides a statutory mechanism for the Defendant to obtain documentation and information regarding history, condition, treatment and cost of treatment of the services provided to Mr. Amill. It is also well settled that upon a timely request for documentation and information, all claims are tolled until 10 days after receipt of the documentation and information requested. Fla. Stat., §627.736(6)(b) (2002); Kaminester vs. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000).
29. In Kaminester, the Fourth District Court of Appeal found that Florida Statutes, §627.736(6) provides for informal discovery from the provider to the PIP insurer without the result of litigation. The power invoked under subsection (b) is to discover facts about an injured person’s history, condition or treatment or the dates and costs of such treatment. Simply put, an insurer has the right to learn information about an insured’s treatment and the cost of such treatment. Id.
30. As outlined above, Defendant requested documentation or information from Plaintiff regarding the history, condition, treatment and cost of treatment provided to Mr. Amill on December 17, 2002 and March 6, 2003.
31. The only record evidence Plaintiff filed in opposition to Defendant’s Motion for Summary Judgment was the State Farm documents that were authenticated by the parties, which clearly evidences that not until after suit was filed did Plaintiff provide the following:
A. Letter of Protection signed by Mr. Amill that identified the medical provider as N & W Health and Wellness Center;
B. Agreement to Lien to First Health Chiropractic/N&W Health and Wellness;
C. Limited Power of Attorney to Endorse Checks for First Health Chiropractic/N&W Health and Wellness;
D. Personal Injury Policy form that identified the medical provider as First Health Chiropractic/N&W Health and Wellness;
E. X-Ray Assignment Agreement signed by Mr. Amill in favor of Spinal Imaging, Inc.;
F. Blank HCFA signed by the patient;
G. A payout log evidencing any debits and credits; and
H. A computer printout regarding Mr. Amill’s claim.
Plaintiff also failed or refused to identify who the principals of First Health Chiropractic were until after suit was filed.
32. As such, at the time that suit was filed all bills were tolled until 10 days after Defendant received the documentation requested in the aforementioned correspondence. Since no bills were due and owing at the time suit was filed, Plaintiff’s suit is not supported by the facts or the application of the facts to existing law. See Physician’s Extended Services vs. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 649b (9th Cir., Orange County, April 2004) (medical provider’s failure to submit an invoice from the supplier to determine the proper payment for medical appliances/equipment prior to filing suit warranted summary judgment on the outstanding claim as the claims were not “overdue at the time of the filing of the litigation.”); Doctors Pain Management vs. Progressive Auto Pro Ins. Co., 11 Fla. L. Weekly Supp. 1071b (9th Cir., Orange County, Aug. 2004) (medical provider’s failure to submit an invoice from the supplier to determine the proper payment for medical appliances/equipment prior to filing suit warranted summary judgment on the outstanding claim as the claims were not “overdue at the time of the filing of the litigation.”); MRI Services Inc. vs. State Farm Mut. Auto. Ins. Co., 807 So. 2d 783, 785 (Fla. 2d DCA 2002) (“neither section 627.736(6)(b) nor section 627.736(6)(c) created an exception for medical providers that had not accepted an assignment of benefits from the insured or billed the insured for their services.”); Nationwide Mut. Ins. Co. vs. Neurology Associates, P.A., 13 Fla. L. Weekly Supp. 937b (9th Cir., Orange County, May 2006) (the court overturned the judgment against the insurer due to the fact that the medical provider failed to provide the medical records supporting the claim after a request from the insurance company within 30 days of the receipt of the medical bills at issue.); Dr. Mitchell G. Jomsky vs. Progressive Auto Pro Ins. Co., 13 Fla. L. Weekly Supp. 908c (17th Cir., Broward County, Jun. 2006) (a timely request for additional documentation pursuant to section 627.736(6)(b) tolls the time period to make payment, and having received no responses from the plaintiff, the claims that were subject of the suit were not “overdue” at the time of the filing of the complaint and are not collectible as the law suit is premature.); Drew Medical, Inc. vs. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 403b (Fla. 18th Cir., Jan. 2005); Wellington Chiropractic center of Palm Beach, Inc. vs. Nationwide Mut. Ins. Co., 11 Fla. L. Weekly Supp. 929b (15th Cir., Aug. 2004); Physicians Extended Services vs. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 649b (9th Cir., Apr. 2004); Doctors Pain Management vs. Progressive Auto Pro Ins. Co., 11 Fla. L. Weekly Supp. 1071b (9th Cir., Aug. 2004); Rhodes and Anderson, D.C., P.A. vs. State Farm Mut. Auto. Ins. Co., 13 Fla. L. Weekly Supp. 903a (12th Cir., Sarasota County, Jun. 2006) (the action was prematurely filed and contrary to the legal requirements of Florida law due to the fact that the medical provider had failed to provide documentation or information to the timely request pursuant to Florida Statutes, §627.736(6)(b)); Body X-Ray Corp., Inc. vs. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 1091a (11th Cir., Miami-Dade, Jul. 2006) (Defendant was not liable for claims that became due after suit was filed and suit was a legal nullity due to the fact that plaintiff failed to provide documentation request pursuant to Florida Statutes, §627.736(6)(b) prior to filing suit.); Professional Medical Group, Inc. vs. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 1000b (11th Cir., Miami-Dade, Jul. 2006) (Defendant was not liable for claims that became due after suit was filed due to the fact that plaintiff failed to provide documentation request pursuant to Florida Statutes, §627.736(6)(b) prior to filing suit.)
33. Plaintiff’s sole argument against Defendant’s Motion for Summary Judgment was that Plaintiff substantially complied with the Defendant’s request for information and documentation by providing the records identified above such that it was a question of fact for the jury to decide. Plaintiff cited to the decisions in Haiman v. Federal Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001); Schnagel vs. State Farm Mut. Auto. Ins. Co., 843 So. 2d 1037 (Fla. 3d DCA 2004); Lopes vs. Allstate Indemnity Ins. Co., 873 So. 2d 344 (Fla. 3d DCA 2004) and Moore vs. Chodorow, 925 So. 2d 457 (Fla. 4th DCA 2006) in support of its substantial compliance argument. The court finds Plaintiff’s reliance on the aforementioned case law to be misplaced since they deal with whether an insured complied with the cooperation clauses in the policy and did not deal with a request for information and documentation pursuant to Florida Statutes, §627.736(6)(b). None of the cases cited by Plaintiff stand for the proposition that substantial compliance with a request for documentation and information pursuant to Florida Statutes, §627.736(6)(b) is sufficient.
34. The Court finds that had Plaintiff produced previously-requested, material documents before suit was filed, the issue of who actually performed the services, Plaintiff or N & W Health and Wellness, could have been addressed sooner, and was of vital importance to the payor.
35. The Court finds that the statute requires that the medical provider provide all the documents requested and that should the medical provider choose not to provide all the documentation and/or information requested regarding the history, condition, treatment and costs of treatment, the medical provider does so at its own peril.
36. Since Florida Statutes, §627.736 and the terms of the applicable policy provide that PIP coverage is primary and medical payments coverage is excess, Plaintiff is not entitled to recover under medical payments coverage for claims that are not payable under PIP.
Based on the foregoing, IT IS ORDERED AND ADJUDGED as follows:
Defendant’s Motion for Summary Judgment is hereby GRANTED. The court reserves jurisdiction to determine Defendant’s entitlement to recover its reasonable attorney’s fees and costs, and any other relief the court deems just and proper. In the event that Plaintiff files a timely appeal of this Order, the underlying case is stayed until such time that the appeal is completed or until the Court enters a contrary order.
