18 Fla. L. Weekly Supp. 211a

Online Reference: FLWSUPP 1802MORE

Insurance — Personal injury protection — Coverage — Medical expenses — Mobile x-ray — Alleged failure to prove that it was impractical to transfer insured to stationary x-ray facility may constitute evidence that mobile x-ray was not medically necessary but did not render x-ray unlawful — Insurer is entitled to jury trial on issue of whether mobile x-ray was medically necessary if x-ray was performed in violation of administrative rule providing that mobile x-ray shall only be used where it is impractical to transport patient

MILO DIAGNOSTIC CENTER, INC., a/a/o Caridad Moreno, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-29829SP23(05). July 1, 2010. Lisa Walsh, Judge.

ORDER GRANTING IN PART AND DENYING IN PARTPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

This cause came before this Court on Plaintiff’s Motion for Summary Judgment. The Plaintiff has filed a suit against the Defendant State Farm Fire & Casualty Company (“State Farm”) to recover benefits under the Florida “No Fault” Law, Section 627.736, Florida Statutes and under a personal injury protection policy of insurance for an x-ray performed on the claimant, Caridad Moreno. The x-ray was performed by a mobile x-ray unit and not in a stationary facility. The Defendant’s sole affirmative defense is that because it was not impractical to transfer the patient to a stationary x-ray facility, the x-ray was unlawfully performed and/or not medically necessary and therefore not compensable. The Defendant also generally denied the claim that the x-ray was reasonable, related to the accident and medically necessary.

The Record

This Court fully adopts and incorporates its order entered in Milo Diagnostic Center Inc. (a/a/o Angel Cruz) v. State Farm Fire & Casualty Company, 07-29831SP23 (05). This Court grants in part and denies in part the Plaintiff’s Motion for Summary Judgment based upon the grounds stated within the order entered in 07-29831SP23(05). The record set forth in the order entered in case number 07-29831SP23(05) is identical to the record in this case, and is also incorporated into this order. This Court has specifically not considered any further items submitted to this Court in letter format or any items presented to this Court after the date of the hearing.

Findings of Fact

1. This is an action for breach of contract under Florida’s motor vehicle bodily injury insurance or “PIP” statutes. It is undisputed that the claimant, Caridad Moreno, was involved in a motor vehicle accident on May 23, 2006. Ms. Moreno was covered for personal injury protection benefits under a policy written by Defendant State Farm. Plaintiff, Milo Diagnostic Center (“Milo”), performed a mobile x-ray of the patient. Ms. Moreno assigned her right to recover her PIP benefits to the Plaintiff.

2. Separate from the challenges to the mobile component of the x-ray, the Defendant does not contest that the x-ray was reasonable,¹ related or medically necessary.

3. The First Affirmative Defense was withdrawn by the Defendant. The Court previously denied Defendant’s motion to amend to include any additional affirmative defenses, other than the amended defense on the issue of the mobile x-ray. The only surviving affirmative defense to this action, therefore, the amended Second Affirmative Defense, states as follows:

SECOND AFFIRMATIVE DEFENSE

Defendant, STATE FARM, further affirmatively alleges that the Plaintiff utilized portable or mobile equipment where it was not impracticable to transfer the patient to a stationary radiographic installation in violation of the Florida Administrative Code 64E-5.502(c), rendering the services unreasonable, unnecessary and unlawful within the meaning of Sections 627.736(1)(a), 627.736(5)(a), 627.736(5)(b)(1)(b), 627.732(c), and 637.732(11), Florida Statutes (2006), and therefore non-compensable.

4. It is factually undisputed in this case that the use of an x-ray was otherwise reasonable, related and medically necessary. The Plaintiff and Defendant agree that the only disputed issue in this case is whether the use of a mobile x-ray, rather than a stationary x-ray, rendered the service medically unnecessary and/or unreasonable or unlawful and therefore not compensable. Defendant, the non-moving party, summarized its argument as follows:

The point of Dr. Kane’s Affidavit — but you don’t need her Affidavit. You don’t need it to know that a portable x-ray is something that you don’t have to move to the patient because the patient can’t walk to the x-ray facility or get in a car because the patient is so sick.

This case is very, very simple.

It’s going to be about whether it was impractical to transfer the patient or not.

* * *

I am raising the one issue that was decided in the Allstate case that I cited to you.

That is it.

And neither one of their affidavits speaks to the issue of practicability.

That is the long and short of my argument.

I have nothing else to say on it. It’s so simple, but this is not going to be this trial where I throw all the spaghetti up on the refrigerator and see what sticks. It’s only one strand that I am going to throw up, and the strand is whether it was practical or impractical.

And I think that we are entitled to a trial on that one issue.

(Transcript at 75-77).

5. In support of its argument that use of a mobile x-ray was not medically necessary, Defendant relied upon the decision in Allstate Insurance Company v. Digital Medical Diagnostic (a/a/o Rosario Alvarez), 13 Fla. L. Weekly Supp. 960a (Fla. 11th Cir. July 17, 2006), in which the court held that jury trial was required on the issue of whether use of a mobile x-ray was reasonable, related and medically necessary if it was performed in violation of the administrative provision that mobile x-ray shall only be used where impractical to transport the patient.

Conclusions of Law

Plaintiff has established and defense counsel has conceded that other than the mobile component of the x-ray, the services rendered were reasonable, related to the accident and medically necessary. Plaintiff has further established that PIP coverage was in place, that an accident occurred, and that its claimant Caridad Moreno was injured. Therefore, partial summary judgment is granted on these grounds.

The only remaining issue is whether the Defendant is entitled to a jury trial on the issue of whether transport to a stationary x-ray facility was impractical, rendering the use of a mobile x-ray either unlawful or medically unnecessary.

A. Use of a Mobile X-Ray is not Unlawful as a Matter of Law

This Court grants partial summary judgment for the Plaintiff on the issue of whether use of a mobile x-ray was unlawful. Section 627.736(5)(a), Florida Statutes, limits reimbursement to “[a]ny physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance.” Section 627.732(11), Florida Statutes, states: “ ‘Lawfully’ or ‘unlawfully’ means in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.”

Defendant alleges that Plaintiff was in violation of Rule 64E-5.502(1)(a)8, Florida Administrative Code. Rule 64E-5.502 contains numerous administrative requirements applicable to operation of x-ray facilities. Through the affidavit and deposition of Sergio Milo and the deposition of Yamir Hernandez, this Court finds that the Plaintiff was in substantial compliance with all relevant laws and administrative requirements.

While the alleged failure to comply with the single requirement complained of by the Defendant may constitute evidence that the service was not medically necessary, this alleged failure does not render the resulting service “unlawful.” See, e.g., State v. Burke, 599 So. 2d 1339 (Fla. 1st DCA 1992) (HRS’ failure to comply with strict statutory requirements for performance of breath alcohol testing did not preclude admission of test results where HRS substantially complied); United Automobile Insurance Co. v. Professional Medical Group, Inc., 26 So. 3d 21 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] (failure to provide physician’s licensing number within bills did not preclude payment where bills were “substantially complete”); Florida Medical & Injury Center, Inc. v. Progressive Express Insurance Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] (failure to submit completed disclosure and acknowledgment form does not constitute failure to provide insurer with notice of a covered loss if bills are “substantially complete” and “substantially accurate”).

Accordingly, the Plaintiff’s Motion for Summary Judgment is granted in part, as the alleged failure to prove that it was impractical to transfer the patient did not render the resulting x-ray “unlawful.”

B. Defendant entitled to jury trial on the issue of medical necessity — whether, under the Florida Administrative Code, it was “impractical” to transport the patient to a stationary facility.

Based solely upon the authority in Allstate Insurance Company v. Digital Medical Diagnostic (a/a/o Rosario Alvarez), 13 Fla. L. Weekly Supp. 960a (Fla. 11th Cir. July 17. 2006), this Court denies summary judgment on the issue of whether a mobile x-ray was medically necessary.

However, this Court writes further to express some concern about the applicability of this administrative regulation to a determination of medical necessity.

The term “medically necessary” is defined by statute as follows:

(2) “Medically Necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is:

(a) In accordance with generally accepted standards of medical practice;

(b) Clinically appropriate in terms of type, frequency, extent, site, and duration, and

(c) Not primarily for the convenience of the patient, physician, or other health care provider.

§ 627.732(2), Fla. Stat. (2009).

The administrative requirement at issue states:

c. Portable or mobile equipment shall be used only for examinations where it is impractical to transfer the patient to a stationary radiographic installation.

Rule 64E-5.502(1)(a)8c, Fla. Admin. Code (emphasis added).²

This court is concerned that whether or not it is “impractical” to transport a patient for a stationary x-ray has little to do with whether the mobile x-ray is “medically necessary” within the definition of the statute. The word “impractical” means not useful or lacking sense. Practicality may persuade the provider to conduct a mobile x-ray to accommodate the patient’s schedule, to hasten the course of care to the patient because the patient is in discomfort, because the patient lacks transportation, or because the doctor wants expedited results of the scan.³ Such factors do not constitute medical necessity under the statutory definition set forth in section 627.732(2), Florida Statutes. But these considerations may well be appropriate and in compliance with the administrative code.

All providers of x-rays must comply with the same administrative requirements in the same manner. Providers seeking reimbursement under PIP are not subject to special, different or stricter rules for operation of x-ray equipment. Thus, while this Court is bound by a decision of the circuit court, this Court expresses concern that the disputed issue of fact to be determined at trial — whether it was “impractical” to transport the patient to a stationary facility — may have nothing to do with medical necessity and may subject the provider to a stricter requirement than that required by the administrative code.

Furthermore, this Court notes that Sections 404.022, 404.042, 404.051, 404.056, 404.071, 404.101, 404.162, Florida Statutes, which provide the statutory framework for the regulation by and duties of the Department of Health for the control of radiation in the State of Florida, do not create any private cause of action for violation of the regulations. Instead, Section 404.162 provides that the Department of Health may impose penalties or suspend licenses for violation of its rules. To allow State Farm, a private entity, to deny coverage based upon an alleged violation of an administrative rule creates obligations not intended by the No Fault statute. For this reason, I would grant summary judgment, but for the authority set forth in Allstate Insurance Company v. Digital Medical Diagnostic (a/a/o Rosario Alvarez), 13 Fla. L. Weekly Supp. 960a (Fla. 11th Cir. July 17. 2006).

Accordingly, this Court denies the Plaintiff’s motion for summary judgment on the ground that the Defendant is entitled to a jury trial on medical necessity.

__________________

¹The Plaintiff was permitted to withdraw a previously submitted CPT code for mobile x-ray. Therefore, the only bill at issue is for a conventional x-ray, and no additional charge has been assessed for the mobile component of the x-ray. No evidence that the price billed for the x-ray is unreasonable was submitted by the Defendant.

²A copy of all relevant sections of the code is attached to this order as an appendix.

³The defendant argued that the provider is required to show that the patient is incapacitated or cannot be moved before a mobile x-ray may be conducted. Nothing in the administrative code places this burden on the provider. Florida’s Agency for Healthcare Administration (“ACHA”), an arm of the Executive charged with promulgating these administrative rules, is deemed to intend the language it chooses. It could have but did not mandate that a mobile x-ray be performed only where the patient is “incapacitated,” “seriously injured” or “immobilized.”