15 Fla. L. Weekly Supp. 91b
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Description of services rendered on D&A form as “Notas del Doctor” and “Therapy,” in combination with attached HCFA forms that D&A form referred to, substantially complied with requirements of section 627.736(5)(e) — D&A form signed by medical provider and insured 50 days apart does not comply with statutory requirement that insured countersign form — Waiver — Where insurer’s conduct of continuing to investigate claim, scheduling independent medical examinations and peer review and ultimately denying claim on ground other than defective D&A form evinces intent to accept notice of loss, insurer waived right to assert defective form as bar to payment
KENDALL SOUTH MEDICAL CENTER, a/a/o Nelson Esteves, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-6662 SP 26 (02). October 23, 2007. Robin Faber, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Gilda Chavez, Office of General Counsel, for Defendant.
ORDER ON SUMMARY JUDGMENT MOTION REGARDING DISCLOSURE ANDACKNOWLEDGMENT FORM UNDER F.S. 627.736(5)(e)
THIS CAUSE having come to be heard before this Court on October 12, 2007, on Plaintiff’s and Defendant’s Cross Motions for Summary Judgment regarding the Disclosure and Acknowledgment Form (hereinafter “D&A Form”) under F.S. 627.736(5)(e) (2003) and the Court having reviewed the file herein, heard the argument of counsel, and being otherwise fully advised in the premises, finds as follows:
Findings of Fact:
1. Plaintiff filed a PIP suit November 29, 2005, against Defendant for unpaid medical bills for services rendered to Nelson Esteves, who had assigned his PIP benefits to Plaintiff, as a result of injuries sustained in an automobile accident on May 28, 2004.
2. On July 27, 2004, Defendant received an initial set of bills provided by Plaintiff regarding the initial treatment rendered to Mr. Esteves. Included with the bills was a D&A Form and properly executed HCVA forms.
3. The D&A Form was signed by Nelson Esteves on June 1, 2004, but not signed by the provider until July 21, 2004, fifty days later.
4. The D&A Form set forth the services rendered as “Notas del Doctor” and “Therapy”.
5. No denial of benefits was ever communicated to the Plaintiff or the insured within 30 days of submission of this notice of loss.
6. Subsequent to receipt of the bills and D&A Form an Independent Medical Examination of the insured, Nelson Esteves, was scheduled and performed.
7. The Plaintiff subsequently submitted separate billings to Defendant for additional services rendered which were received on November 5, 2004, January 10, 2005, and February 15, 2005, respectively.
8. On September 17, 2005, a peer review was conducted of the medical records submitted to Defendant by Plaintiff.
9. On November 14, 2005, Defendant sent a letter to Plaintiff denying benefits based on a Peer Review of the medical records. Defendant never advised Plaintiff at any time prior to the lawsuit being filed that the claim was denied because the D&A Form was defective.
Conclusions of Law:
The Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes (2003), which was enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault. See § 627.731, Fla. Stat. (2001); United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001). Under this statutory scheme, each driver collects certain statutorily required medical, disability, or death benefits regardless of fault. See Mansfield v. Rivero, 620 So.2d 987 (Fla.1993). In order to be entitled to PIP benefits, a party seeking benefits must establish that an insurer was provided written notice of a covered loss. Section 627.736(4)(b), Fla. Stat., states in relevant part: “[p]ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” The courts of Florida have a longstanding policy construing provisions of the Florida No-Fault Act liberally in favor of the insured. That policy is a broader and more liberal standard as applied to the PIP statute in particular. Race v. Nationwide Mutual Fire Insurance Co., 542 So.2d 347 (Fla. 1989).
In 2003, in order to combat fraud, the Florida Legislature amended the PIP statute to require the provider of medical services to furnish a D&A Form to the insurer following the insured’s initial treatment. Section 627.736(5)(e), Fla. Stat. (2003), provides:
“(1) At the initial treatment of service provided, each physician, licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an injured person, or his or her guardian, to execute a disclosure and adknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered.
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered
c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider;
d. That the physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and
e. If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.
(2) The physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed has the affirmative duty to explain the services rendered to the insured, or his or her guardian, so that the insured, or his or her guardian, countersigns the form with informed consent.
(3) Countersignature by the insured, or his or her guardian, is not required for the reading of diagnostic tests or other services that are of such a nature that they are not required to be performed in the presence of the insured.
(4) The licensed medical professional rendering treatment for which payment is being claimed must sign, by his or her own hand, the form complying with this paragraph.
(5) The original completed disclosure and adknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.
(6) This disclosure and adknowledgment form is not required for services billed by a provider for emergency services as defined in s. 395.002, for emergency services and care as defined in s. 395.002 rendered in a hospital emergency department, or for transport and treatment rendered by an ambulance provider licensed pursuant to part III of chapter 401.
(7) The Financial Services Commission shall adopt, by rule, a standard disclosure and acknowledgment form that shall be used to fulfill the requirements of this paragraph, effective 90 days after such form is adopted and becomes final. The commission shall adopt a proposed rule by October 1, 2003. Until the rule is final the provider may use a form of its own which otherwise complies with the requirements of this paragraph.
(8) As used in this paragraph, “countersigned” means a second or verifying signature, as on a previously signed document, and is not satisfied by the statement “signature on file” or any similar statement.
(9) The requirements of this paragraph apply only with respect to the initial treatment or service of the insured by a provider. For subsequent treatments or service, the provider must maintain a patient log signed by the patient, in chronological order by date of service, that is consistent with the services being rendered to the patient as claimed. The requirements of this subparagraph for maintaining a patient log signed by the patient may be met by a hospital that maintains medical records as required by s. 395.3025 and applicable rules and makes such records available to the insured upon request.”
Defendant suggests that the D&A Form provided by Plaintiff with the first bills submitted on July 27, 2004, was defective in two respects and thus the insurer has not been furnished with written notice of the fact of a covered loss that otherwise triggers the 30-day window to pay PIP benefits under Section 627.736(4)(b). As such, they argue, the bills are not yet due and owing.
Defendant first contends that the reference to “Notas del Doctor” and “Therapy” on the D&A Form as the rendered services is insufficient to properly put the insurer on notice of the claim. Other courts have dealt with the issue of substantial compliance with the form of a D&A Form in this regard and found compliance with the statute. See generally, Hollywood Diagnostics Center, Inc. a/a/o Joseph Thompson v. Southern Group Indemnity, Inc., (11th Judicial Circuit, June 16, 2005), 12 Fla. L. Weekly Supp. 1180a (Defendant received form not authorized by Office of Insurance Regulation), South Miami Health Center a/a/o Lidia Gomez vs. United Automobile Insurance Company, (11th Judicial Circuit, April 6, 2006), 13 Fla. L. Weekly Supp. 619a (Defendant received approved form with reference to “see attached” and included all medical reports and properly executed bills). This Court agrees with the cited cases and finds that nothing in F.S. 627.736(5)(e) requires a detailed listing of the services provided or prevents Plaintiff from attaching the documents to the D&A Form in the manner that Plaintiff has in the instant case and referring to them on the form itself. As such, the description of the services rendered on the D&A Form in combination with receipt of the properly executed HCVA forms that the form referred to substantially complied with the requirements of F.S. 627.736(5)(e).
Defendant further contends that the D&A Form is invalid because it was signed by the insured on June 1, 2004, but not signed by the provider until July 21, 2004, some 50 days later thus rendering it invalid as a matter of law. In pertinent part, Florida Statute 627.736(5)(e)1. (2003) dealing with an insured’s requirements regarding the D&A Form states that: “[a]t the initial treatment of service provided. . .each. . . licensed professional. . .or other medical institution providing medical services shall require an injured person, or his or her guardian, to execute a disclosure and acknowledgment form. . .which reflects at a minimum that: a. The insured. . .must countersign the form. . .”. (emphasis supplied). “Countersign” is defined as a verb meaning: to sign in addition to the signature of another in order to attest the authenticity. See Black’s Law Dictionary, 5th Ed. (1979). Defendant argues that by including the word “countersign” the legislature intended that the statute required both signatures to be affixed on the first date of treatment. In subsection (5)(e)4., however, which addresses the provider’s requirements regarding the D&A Form, the language “at the initial treatment of service provided” is omitted and the only expressed requirement is that the provider sign the form. Defendant argues the legislature had no intention to require a signature on the same day or otherwise it would have stated so in that section.
Statutes have to be read in their entirety. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Moreover, if the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 299 (Fla. 4th DCA 2000). The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146, 1150 (Fla. 2000). Where the wording of the law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law. United Auto Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2002).
The statute plainly says the injured person must countersign the form on the date of the first day of treatment. This is in accord with the statutory scheme that exists: as part of the trigger for the 30 day window to pay for PIP claims and in order to fight fraud, an original D&A Form must be submitted as proof that from the first date of service the medical provider affirms that they did not solicit the business, advised the patient of all services being rendered, and actually rendered the services described, and, that the patient affirms by countersignature that they were not solicited for that treatment, they were advised about the services to be provided and were, in fact, provided those same services. It defies logic that you could countersign any document before the day when the other signature you are countersigning to is affixed. That provider signature and patient countersignature requirement is specific and clear in the statute and not subject to substantial compliance analysis.
In Yesenia Guerra vs. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 1233a (17th Judicial Circuit, September 15, 2006), a case involving the sufficiency of the D&A Form used rather than the dates of signature, the Court held:
“As it relates to the remaining affirmative defense regarding the alleged deficiency of the acknowledgment and disclosure form the Court finds for the Plaintiff. The record evidence reflects the self generated form filled out by the provider and the Plaintiff, filled out on the first date of service, substantially complies with the requirements of F.S. 627.736(5)(e). . .” (emphasis supplied).
In Guerra the form was signed on the same day and the court in dicta recognized that need. This Court declines to create an allowance in the statute where the legislature specifically did not — i.e., allow the provider and the insured to sign independently on separate days — particularly in a case where the signature the patient was countersigning to was not yet made for 50 days. Therefore, the D&A Forms submitted herein do not comply with the statute.
Having found the D&A Forms defective, Plaintiff now claims a waiver occurred of the right to object since the litigation adjuster testified at deposition that: 1) the Defendant never advised Plaintiff at any time prior to the lawsuit being filed that the claim was denied because the D&A Form was defective; and 2) there was no record of any intent by the insurer to deny benefits based on a defective D&A Form1. Ordinarily waiver is a question of fact but Plaintiff contends that the evidence is not disputed, no contrary inferences are present, and as a matter of law the insurer waived any right to object because they continued to investigate the claim never contesting any defect to the D&A Form and, in fact, never intended to.
In Consuelo D. Alzate vs. United Auto Insurance Company, 11 Fla. L. Weekly Supp. 878a (11th Judicial Circuit, July 20, 2004), the court dealt with a waiver issue in regard to a right to employ the statutory bar to payment:
“The court also finds that United Auto waived enforcement of the statutory time limit by its conduct. Waiver is “the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.” Benedict v. Pensacola Motor Sales, Inc., 846So.2d 1238 (Fla. 1st DCA 2003). If United elected to deny benefits based upon the untimeliness of the bills, it should not have continued to investigate the accident after having received the “untimely” bills. An examination under oath was conducted in September 1999 which was followed by the IME on October 1, 1999. Additionally, Dr. Krimstein, after examining Ms. Alzate and performing a peer review of the medical bills recommended that the “untimely” bills, as well as other timely ones, should be paid, at least in the amount that he found reasonable, related and necessary. United Auto’s own form indicated that, of the $11,109.00 worth of bills submitted, $5,594.00 was the amount allowed. Such conduct does not evince an intent to deny all bills based upon untimeliness, in fact, it demonstrates an intent to pay the bills after concluding its investigation. These actions waived its right to employ the statutory bar to payment due to the untimeliness of the bills. Accordingly, we reverse the lower court’s granting of the JNOV.”
An insurer can waive its right to employ a statutory bar to payment. Plaintiff’s Reply of waiver to United’s Affirmative Defense of a defective D&A Form has merit and in this case there is no question of fact to consider. United never intended to raise the D&A Form as a bar to payment. Their conduct in continuing to investigate this claim, in scheduling IME’s and a subsequent peer review, and in ultimately denying coverage over a year later on grounds other than the D&A Form, is clear and uncontroverted evidence of their intent to accept Plaintiff’s notice, continue conducting their investigation and waive their right to employ this statutory bar to payment.
For the reasons set forth above the Defendant’s Motion for Summary Judgment on its Affirmative Defense of the D&A Form is DENIED and Plaintiff’s Cross-Motion for Summary Judgment on the same issue because of and regarding its Reply of Waiver is GRANTED.
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1Deposition of Aliea Khayoum, litigation adjuster for Defendant, taken May 8, 2007.
