16 Fla. L. Weekly Supp. 199c
Online Reference: FLWSUPP 162SOTEL
Insurance — Personal injury protection — Withdrawal of benefits — Peer review report based upon review of treating physician’s records and independent medical examination conducted by doctor not licensed under same chapter as treating physician does not constitute valid report for purposes of denying or withdrawing PIP benefits
Editor’s note: Reversal of final summary judgment in this case at 17 Fla. L. Weekly Supp. 13c
NDNC NEUROLOGICAL TREATMENT CENTERS, INC., a/a/o Ernestina Sotelo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-17888 COCE (55). November 24, 2008. Sharon L. Zeller, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Terri Kim, Office of the General Counsel, United Automobile Insurance Company, Miami Gardens, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 10, 2008 for hearing of the Plaintiff’s Motion for Partial Summary Judgment as to RRN, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:FINDINGS OF FACT
On February 4, 2008, the Plaintiff served its Motion for Partial Summary Judgment on the issue of RRN. The Plaintiff’s Motion for Partial Summary Judgment referred to affidavits of the treating physician, Steven Brown, M.D. The affidavit established that the patient was injured in a motor vehicle accident on November 19, 2002 and that treatment was rendered from December 5, 2002 through March 5, 2003. Dr. Brown concluded that the treatment was related, reasonable and necessary.
An independent medical examination was performed by Dr. Fader on January 27, 2003. This doctor was not licensed under the same chapter as the treating physician.
In response to Plaintiff’s motion for summary judgment, Defendant served an affidavit from Dr. Millheiser attaching his report. The report was prepared on or about March 26, 2004. Dr. Millheiser reviewed the insured’s treatment records, and the IME report of Dr. Fader. According to the affidavit, Dr. Millheiser stated that the services rendered were neither reasonable, medically necessary nor related.
It is undisputed that the Defendant did not first obtain Dr. Millheiser’s report before Defendant denied payment of the treating physician’s invoices for the services rendered.
Defendant advised the claimant on February 11, 2003 that it would not be paying for the bill for services rendered based on the IME and the Peer Review.
CONCLUSIONS OF LAW
The Plaintiff’s Motion and supporting affidavit establish the Plaintiff’s prima facie case on the issues of RRN. Dr. Millheiser’s report is questionable as to its validity. Although it is factually supported by the treatment records, it is also based on an IME conducted by a physician not under the same licensing chapter.
The issue is whether the Court should consider Dr. Millheiser’s report to support Defendant’s claim that the services rendered were not reasonable nor medically necessary, as said report was not a valid report under §627.736(7)(a).
Section 627.736(7)(a) states: An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physicianlicensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. FL. Statute (2006).
The last sentence of this section was added following the Fourth District’s decision in Nationwide Mutual Fire Insurance Company vs. Southeast Diag. Inc., 766 So.2d 229 (Fla. 4th DCA 2000). The Fourth could find no language that required the medical report to be based upon a physical examination of the insured and stated: “Without express language from the legislature, there is no reason to conclude that a physical examination is required.” Id. at 230.
The Senate Staff Analysis and Impact Statement prepared for the legislature addressed this issue:
Independent Medical Examinations (IMEs)
The (proposed) legislation requires that such a report be a “valid” one and specifies what a valid report means. It provides that such a report is one prepared and signed by the physician examining the injured person or, in the alternative, reviewing the treatment records of the injured person and such report is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.
The effect of the provision is to help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.
Senate Staff Analysis at 11-12.
Recently, the Third District held that a medical report issued for the withdrawal of PIP benefits does not have to be based upon a physical examination of the insured that is personally conducted by the physician issuing the report. United Auto Ins. Co. vs. Bermudez, 980 So.2d 1215 (Fla. 3rd DCA 2008). Therein, United obtained a peer review from Dr. Millheiser who reviewed the insured’s treatment records and an IME conducted at the request of United. The court held that an IME does not have to be conducted personally by the reviewing physician preparing a Peer Review report.
The Bermudez case and the Senate Staff Analysis supports the conclusion that the Florida Legislature, by its 2001 amendment, defined a “valid report” to mean that it must be either prepared by the same physician who examines the insured pursuant to the insurer’s request for an IME or a report prepared by a physician other than the IME doctor which:
a. is factually supported by the IME’s examination;
b. And is based upon a review of the insured’s treatment records and must be factually supported by those records.
Therefore, a report based upon only a review of the insured’s treating physician’s records or a report based upon a review of an IME conducted by a physician not under the same licensing chapter, does not constitute a “valid report” within the meaning of the section 627.736(7)(a) (2006)
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED as to reasonable, related and necessary.
