15 Fla. L. Weekly Supp. 180a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Necessity — Where PIP policy was issued prior to effective date of statutory amendment imposing D&A form requirement, form is not required — Signature of medical provider — MRI — Even if D&A form requirement were applicable, where MRI was begun by technician in face-to-face encounter with insured and completed outside insured’s presence by radiologist interpreting test, signature by radiologist was not required — When imaging center performs both components of test, signature by radiologist is only required when insured and radiologist have face-to-face contact
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee for RODRIGIO HERRERA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-3478 SP21. November 19, 2007. Ana Maria Pando, Judge. Counsel: Richard Shuster, Shuster & Saben, LLC, Miami, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ISSUES OF DISCLOSURE & ACKNOWLEDGEMENT FORM and DENYINGDEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before the Court for hearing on Monday, November 19, 2007, on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment On Disclosure & Acknowledgement Form. The Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises the Court makes the following findings of fact and law as set forth below:
I. UNDISPUTED FACTS
The following facts were not disputed by the parties.
1. The Plaintiff, by request for admission, sought the authentication of the Defendant’s declaration page. United admitted that the document attached to Plaintiff’s request for admission was a true and correct copy of the declarations page. The declarations page shows that the subject policy was issued December 6, 2002 and provided coverage for the period from December 2, 2002 to December 6, 2003.
2. The subject accident occurred on November 3, 2003.
3. The Plaintiff, Millennium Diagnostic rendered a lumbar M.R.I. to the assignor, Rodrigio Herrera, on November 21, 2003.
4. Millennium had Mr. Herrera execute a disclosure form but the form was not executed by the interpreting radiologist or any member of Millennium’s staff. Only Mr. Herrera signed the disclosure form.
II. DEFENDANT’S CONTENTIONS
5. The Defendant contends that failure of either the technician or the interpreting radiologist to sign the disclosure form is a violation of F.S. 627.736(5)(e)(4).
III. PLAINTIFF’S CONTENTIONS
6. The Plaintiff contends:
A. That the subject claim is not governed by the 2003 edition of the Florida Statutes but rather by the 2001 edition of the statute which does not contain a disclosure form requirement.
B. That if ad arguendo the claim is governed by the 2003 statute, United waived the defense when it (1) failed to raise these issues in an explanation of benefits, (2) failed to raise these issues in its response to Millennium’s demand letter.
C. That Millennium’s disclosure form complied or in the alternative substantially complied with F.S. 627.736(5)(e)(4).
IV. APPLICABLE LAW
7. An insurance policy is a contract. § 624.02, Fla.Stat. (1981). It is well settled in Florida that the statute in effect at the time the insurance contract is executed governs any issues arising under that contract. See Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir. 1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937).
8. In Lumberman’s Mutual Casualty Company v. Ceballos, 440 So.2d 612, (Fla. 3rd DCA, 1983), the Court interpreted whether the carrier’s conduct of issuing a $2,000.00 deductible policy without inquiry as to the existence of collateral sources would be governed by the 1977 version of the PIP statute (in effect on the date of incident) or the prior version of the statute in effect on the date the contract of insurance was issued. The Lumberman’s Court held that the statute in effect on the date of the policy is issued governs “any issues arising under the contract.” The Lumberman’s Court reasoned that applying section 627.739, Florida Statutes (1977) to contracts entered into before the statute was effective would constitute a legislative impairment of contract in violation of article I, section 10 of the Florida Constitution.”
9. The subject policy of insurance was issued December 6, 2002 which was prior to the October 1, 2003 effective date of the 2003 amendments to the PIP statute. Accordingly this case is governed by the 2001 rather than the 2003 PIP statute. The disclosure form requirement was first enacted in the 2003 amendments to the PIP statute.
Pursuant to Lumbermans this case is governed by the 2001 statute. Nonetheless for reasons set forth below, this Court would reach the same result under either the 2001 or the 2003 statute.
V. DISCLOSURE FORM
10. The disclosure and acknowledgement form requirements are set forth in F.S. 627.736(5)(e) which provides in pertinent part:
e)1. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment 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 acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.
6. This disclosure and acknowledgment 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.
11. When a medical doctor or chiropractor renders treatment to an accident victim the completion of a disclosure form executed by the patient and the physician is mandatory. In the straight forward case of a patient seeing a doctor for treatment, the patient actually sees the doctor who is required to explain the services that have been rendered and the contents of the disclosure form.
12. Diagnostic imaging services are medical services but are not treatment in that they do not cure the patient’s injury or relieve the patient’s symptoms.
13. In the case of diagnostic imaging services, the radiologist rarely has face-to-face contact with the patient, and hence there is no opportunity for the doctor to explain the services rendered or the disclosure form.
14. The legislature saw fit to exempt the reading of diagnostic imaging studies from the disclosure form requirements in 627.736(5)(e)(3) which states, “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.”
15. The exemption as set forth in 627.736(5)(e)(3) is logical and necessary for three reasons: (1) if the interpreting radiologist never sees the patient, the radiologist cannot sign the disclosure form, because he or she has not explained the form to the patient; (2) counter-signature as defined by 627.736(5)(e) is a second or verifying signature and it would be impossible for the patient to place a second signature if the radiologist cannot sign the disclosure form; and (3) the radiologist may lack physical access to the patient.
16. While the disclosure form requirements are clear when a physician completes the services in the patient’s presence (Disclosure form is required) and are clear when the service conducted entirely outside the presence of the patient (Disclosure form not required), the statute provides little explanation as to disclosure requirements for a service that is begun in the patient’s presence by person who is not licensed medical professional and completed by a physician outside the presence of the patient.
17. In the subject case, the lumbar M.R.I. was begun by a technician who had face-to-face contact with the patient and completed/interpreted by Dr. Godreau outside the presence of the patient. This Court is faced with the issue of whether it should treat the complete MRI Scan comprised of the technical component (the preparation of the film) and professional component (the interpretation of the film), in the same manner as face-to-face treatment or in the same manner as the reading of diagnostic tests.
18. In interpreting the disclosure requirement, this Court is mindful that the policies of the Courts of Florida when construing provisions of the Florida No-Fault Act has always been to construe the act liberally in favor of the insured. Farmer v. Protective Casualty Insurance Company, 530 So.2d 356, 358 (Fla. 2nd DCA 1988) citing to Palma v. State Farm Fire & Casualty Co., 489 So.2d 187 (Fla. 4th DCA 1986). This policy is consistent with the purpose of the no-fault statute which is “to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate, 774 So.2d 679 (Fla. 2000) citing GEICO v. Gonzalez, 512 So.2d 269 (Fla. 3d DCA 1987).
19. In the subject case, Millennium complied with 627.736(5)(e)(1) when it required the patient/assignor to execute a disclosure form. The alleged deficiency is that the form was not signed by Eric Godreau, M.D. or any other representative of Millennium.
20. The requirement for signature of the disclosure form by the provider is set forth in 627.736(5)(e)(4) which states “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.”
21. The Court interprets the term “licensed medical professional” to be a person licensed by the department of health pursuant to chapters 457-461, 463, 466, 486, 491 or 493. The only person so licensed involved in the delivery of the CT Scan was the interpreting radiologist, Eric Godreau, M.D.
22. On the face of the Office of Insurance Regulation Standard Disclosure and Acknowledgement form the following language appears:
The undersigned licensed medical professional affirms the statement number 1 above and also:
i. I have explained the services rendered to the insured person, or his legal guardian, sufficiently for that person to sign this form with informed consent.
23. If a radiologist who has not had face-to-face contact with the patient and has not explained the services to the patient was to sign the disclosure form, the radiologist would be misrepresenting that he or she explained the services to the patient.
24. If the statute is construed to require an M.R.I. center performing both components of a diagnostic imaging study to obtain the signature of its radiologist on the disclosure form, then the M.R.I. center is placed in a catch-22 of obtaining the signature and having its claim denied for fraud or omitting the signature and having its claim denied for failing to comply with the disclosure form requirements. The disclosure form requirements cannot be construed in a manner that would lead to such an absurd result.
25. This Court finds that the performance of both components of an imaging study is more analogous to the interpretation of an imaging study than to traditional face-to-face delivery of treatment.
26. This Court holds that when an imaging center performs both components of an imaging study, a signature by the licensed medical professional is only required where the patient and radiologist have face-to-face contact.
27. Millennium, therefore, is found to have complied with 627.736(5)(e).
It is hereby ORDERED and ADJUDGED as follows:
28. Summary Judgment is granted for the Plaintiff and against the Defendant on the issue of proper completion of the disclosure form.
