16 Fla. L. Weekly Supp. 137a
Online Reference: FLWSUPP 162PERDO
NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 388b
Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal — Insurer may not withdraw payment of a treating physician without consent of injured person unless the insurer first obtains a valid report signed by “the physician examining the injured person” — The physical examination underlying a “valid report” cannot be the physical examination of the injured person’s treating physician, but must be performed either by the reporting physician or by a physician who performed an independent medical examination — Valid report cannot be a “paper IME” based merely on review of treatment records
Subsequent opinion QUASHED, 35 Fla. L. Weekly D2107a. (Fla. 3DCA, 9-22-2010)
STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. MARLENE JOGLAR PERDOMO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 07-458 AP. December 15, 2008. An Appeal from the County Court for Miami-Dade County. Counsel: Nancy W. Gregoire, for Appellant. Carlos A. Lopez-Albear, for Appellee.
(Before SIEGEL, GENDEN, BAILEY, JJ.)
(SIEGEL, J.) The Court is called upon to assist the parties in understanding the provisions of section 627.736(7) of the Florida Statutes, which they agree are ambiguous and confusing. The statute provides in relevant part:
(7) Mental and physical examination of injured person; reports.
(a) . . . 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 physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.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. (Emphasis supplied.)
The appellant insurance company takes the position that the “physician examining the injured person” in the statute can be any one of the following three doctors: 1) The doctor who signs the “valid report”; (2) The doctor who performs an independent medical exam (IME) (which was not requested or performed in this case); or (3) the treating doctor whose physical exams are part of the treatment records. Since there was no IME in this case and since the author of the allegedly “valid report” did not examine the patient, the insurer argues that it is entitled to have its reporting physician rely on the physical examinations by the treating doctor in order to withdraw future treatment from the patient and to justify not paying for most of the treatments given. This argument must be rejected based on the legislative history of the statute.
The treating physician is Dr. Jose Gomez-Cortez. Several reports of his physical examinations are included in the record on appeal. The orthopedic doctor who prepared the allegedly “valid report” is Dr. Peter Millheiser, who did not examine the plaintiff, but who did read all of the treatment and examination records of Dr. Gomez-Cortez. Dr. Millheiser’s report, relied upon by State Farm in refusing to pay for most of Perdomo’s treatment by Dr. Gomez-Cortez, did make the statutorily required finding that the unpaid treatment was not reasonable, related or necessary. The problem with Dr. Millheiser’s report is that he never saw the patient.
The definition of a valid report added to the statute in 2001 must be interpreted by reference to the legislative committee staff analysis of the bill which added the “valid report” definition. Considering legislative history is appropriate, in light of the parties’ agreement at oral argument that the statute is poorly written and ambiguous, conclusions with which the court agrees. Maryland Casualty v. Sutherland, 125 Fla. 282, 169 So. 679 (Fla. 1936). Legislative staff analyses are one touchstone of the collective legislative will. White v. State, 714 So. 2d 440 (Fla. 1998). The Senate Staff Analysis and Economic Impact Statement for CS/SB 1092 provides that:
Attorneys who represent PIP insured’s complain about the practice of insurers who utilize what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and then writes a report stating that such medical treatment was not reasonable, related or necessary. . . . (SA2-7)
Independent Medical Examinations (IMEs) — Under current law, a PIP insurance company can not withdraw payment of a treating physician without consent of the injured person, unless the company first obtains a “report” by another physician stating that such treatment was not reasonable, related, or necessary . . . . The bill 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 alternative, reviewing the treatment records of the injured person and such report is factually supported by the examination and treatment records if reviewed. . . .
The effect of this provision is to help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurers physician merely reviews the medical treatment documents of an injured person and writes a report stating that such treatment was not reasonable, related or necessary.” (SA2-11,12) (Emphasis added.)
This is exactly what Dr. Millheiser did in this case. His report is nothing more than a “paper IME” because he never laid either eyes or a hand on the Plaintiff. He reviewed only the treatment records of Dr. Gomez-Cortez. The insurer could have, but did not, request an IME. Because it did not do so, it cannot withdraw treatment relying only on a “paper IME.”
In United Automobile Insurance Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), decided on April 30, 2008, the Third District Court of Appeal interpreted the statute which we have quoted above and reached the conclusion that a medical report issued for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination. But Bermudez did not proceed to the question that we examine, that is whether the physical examination supporting the withdrawal of treatment can be the physical examination of the treating doctor.
For the reasons set forth above, we hold that under section 627.736(7) of the Florida Statutes, the physical examination to support a valid report for withdrawal of treatment must be performed either by the reporting physician or an IME physician, and cannot be only the physical examination of the treating physician. A “valid report” cannot simply be a “paper IME.” We affirm the summary judgment of the lower court, grant appellant’s motion for attorney’s fees in this court, and remand the attorney’s fees issue to the lower court for a finding on the appropriate amount of attorney’s fees. (Genden and Bailey, JJ. concur.)
