18 Fla. L. Weekly Supp. 523a

Online Reference: FLWSUPP 1806NOEL

Insurance — Uninsured motorist — Remaining balance of medical bills submitted and paid in full under PIP statute cannot be recovered in action for UM benefits — Bill withheld from submission for PIP benefits when PIP benefits would have been available to satisfy bill may not subsequently, after time for submission of bills for PIP benefits has expired, be recovered in action for UM benefits

RUTH N. NOEL, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 09-CA-18417-O. January 11, 2011. Stan Strickland, Judge. Counsel: Sandra L. Heller, Goldstein Law Group, Fort Lauderdale, for Defendant. Jason D. Weisser, Schuler, Halvorson & Weisser, P.A., for Plaintiff.

ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (AS TO DAMAGES)

THIS CAUSE having come to be heard before the Court on December 2, 2010 for hearing on Defendant, State Farm Fire and Casualty Company’s (hereinafter STATE FARM) Motion for Partial Summary Judgment (As To Damages). This Court, having reviewed the Court file and having heard argument of counsel and being otherwise advised in the premises finds as follows:

BACKGROUND

This case arises out of a motor vehicle accident in which Plaintiff, Ruth Noel, (hereinafter PLAINTIFF) claims injuries resulting from the negligent actions of the tortfeasor driver of the other vehicle. The instant action seeks uninsured/under insured motorist coverage pursuant to policy of insurance with STATE FARM.

As a result of her reported injuries, it is undisputed that the PLAINTIFF sought medical treatment, supplies or services from various medical providers, including Dr. Philips Hospital, Medical Center Radiology Group, Emergency Physicians of Central Florida, Top Care Chiropractic and Rehabilitation Center, Inc., High Definition Mobile MRI, M. Anwarul Hoque, M.D., Discocare, Inc., and West Coast Radiology.

As to all medical providers who treated PLAINTIFF as a result of the subject accident, with the exception of M. Anwarul Hoque, M.D. and West Coast Radiology, it is undisputed between the parties that the billing for these medical services were submitted for payment to STATE FARM for PLAINTIFF’s Personal Injury Protection Benefits.

For all of these medical providers (again, with the exception of M. Anwarul Hoque, M.D. and West Coast Radiology), it is undisputed that the bills were paid with PLAINTIFF’S Personal Injury Protection Benefits and Medical Payments Coverage benefits under her policy of insurance.

It is undisputed by the parties that Florida Statute Section 627.736 (2008) is the version of the PIP Statute applicable to all bills for the PLAINTIFF’s accident.

It is undisputed by the parties that these bills for treatment, pursuant to the PIP Statute, were paid in full pursuant to the fee schedule under Section 627.736(5)(a) Florida Statute (2008). This is true for billing for all dates of service for treatment rendered reportedly as a result of PLAINTIFF’s accident with the exception a bill for one date of service for M. Anwarul Hoque, M.D., as well as for billing for one date of service for West Coast Radiology.

It is also undisputed from the record that the fee scheduled amount provided to these medical providers pursuant to Florida Statutes Section 627.736(5)(a) was less than the amounts billed for the respective dates of service.

As to the billing resulting from treatment rendered by M. Anwarul Hoque, M.D. to PLAINTIFF, it is undisputed between the parties that Dr. Hoque submitted billing for payment to PLAINTIFF’s Personal Injury Protection carrier, STATE FARM, for date of service July 9, 2008. This bill was paid in full pursuant to Florida Statute Section 627.736 (5)(a) (2008). On August 28, 2008 it is undisputed that Dr. Hoque generated billing in the amount of Twenty Thousand Dollars ($20,000) for a reported lumbar surgical procedure. This bill was never submitted to STATE FARM, although benefits were remaining under the PIP and Medical Payment Coverage (MPC) for PLAINTIFF. The first notice STATE FARM received of this charge was submitted for with the demand for UM Benefits on December 1, 2008, approximately ninety-five (95) days after the services were reportedly rendered to PLAINTIFF. It is undisputed that M. Anwarul Hoque, M.D. went on to submit bills for dates of service September 5, 2008 and September 19, 2008 for payment under PLAINTIFF’s PIP coverage. These two charges of One Hundred and Twenty-five Dollars ($125.00) each were paid in full pursuant to the fee schedule under Section 627.736 (5)(a) Florida Statute 2008.

It is further undisputed that the payment that Dr. Hoque would have been provided pursuant to Florida Statute Section 627.736 (5)(a) for the billed CPT Code, 63056 was $2,852.94. These benefits were available for payment had Dr. Hoque timely submitted his bill for this date of service.

It is undisputed that provider Hoque withheld submission of this bill for a period beyond which bills may be submitted to PIP for payment.

Similarly, West Coast Radiology generated billing for the August 28, 2008, date of service in the amount of $9,477.06 for services and/or supplies related to the procedure billed for by Dr. Hoque on this date. It is undisputed that this bill was never submitted to STATE FARM, although benefits were remaining under the PIP and Medical Payment Coverage (MPC) for PLAINTIFF. The first notice STATE FARM received of this charge was submitted for with the demand for UM Benefits on December 1, 2008, approximately ninety-five (95) days after the services were reportedly rendered to PLAINTIFF.

It is undisputed that had West Coast Radiology submitted the bills for date of service August 28, 2008, the amount of reimbursement pursuant to Florida Statute Section 627.736(5)(a) would have been considerably less that the charged amount.

The issues before the Court presented in Defendant’s Motion For Partial Summary Judgment are:

1. Whether any balance for medical services provided to a PLAINTIFF for amounts in excess of what was submitted and paid in full pursuant to Florida Statute Section 627.736 (5)(a) 2008 may be properly boarded as damages in a bodily injury/uninsured or under insured motorist claim and

2. Whether a bill withheld from submission for Personal Injury Protection Benefits when benefits would have been available to satisfy the bill pursuant to Florida Statue Section 627.736 (5)(a) (2008) and Florida Statute Section 627.736 (5)(c)(1) may be properly boarded as damages in a bodily injury/uninsured or under insured motorist claim, as there is no legal obligation on the insured to pay the charges?

This Court finds that the answer to both of these questions is: No.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

This analysis begins with DEFENDANT’S first contention that a provider, pursuant to Florida Statute Section 627.736 (5)(a) (2008) may not seek payment from an insured for amounts in excess of 200% of Medicare Part B (or 80% of the maximum reimbursable allowance under worker’s compensation), as the PIP Statute prohibits balance billing from an insured once these bills have been paid in full. Furthermore, STATE FARM contends that because these amounts in excess of the fee schedule reimbursable amounts are not owed by the PLAINTIFF, as a matter of law, they cannot be properly boarded as damages in a subsequent uninsured/under insured motorist action, as there is no legal obligation for payment of these amounts imposed upon the insured. This Court agrees.

Florida Statute Section 627.736 (5)(a) 2008 states in pertinent part:

The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

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B. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

C. For emergency services and care as defined by Section 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.

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F. For all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.

Further, Florida Statute Section 627.736 (5)(a)(3) 2008 explains:

For purposes of subparagraph 2., that applicable fee schedule of payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.

The undisputed facts in this case bare out that all of the medical expenses submitted by the providers, with the exception of the August 28, 2008, $20,000 bills generated by provider M. Anwarul Hoque, M.D. and West Coast Radiology, were paid either under the fee schedule in effect at the time the services were rendered or the allowable under the participating physician’s schedule of Medicare Part B for 2007 which ever is greater. Additionally, in this case, the PLAINTIFF had medical payments coverage which satisfied any deductible amounts, so that the providers at issue were paid in full pursuant to the fee schedule for their submitted bills.

In the instant action, pursuant to the provisions of the PIP Statute, PLAINTIFF had no legal obligation to pay the medical providers for amounts in excess of what was reimbursed pursuant to 627.736(5)(a) 2008. Therefore, because these bills are no longer the legal obligation of the PLAINTIFF, it would be improper to include them of damages in the instant action.

This Court relies upon Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D608a] as well as Coop. Leasing, Inc. v. Johnson, 872 So.2d 956 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D902b] review denied, 905 So. 2d 76, (Fla. 2005) [30 Fla. L. Weekly S426a].

In Cooperative Leasing, Inc. v. Johnson, the Second District Court of Appeals addressed such a prohibition, and held that a Plaintiff is not entitled to recover damages from medical bills for which they would not have been legally responsible. In Coop. Leasing, the patient had Medicare, which limited the amount that a doctor could charge for the service and prohibited the doctor from recovering the rest from the patient. Because the Plaintiff was not liable to the doctor from amounts outstanding after Medicare paid their portion, the Plaintiff was not entitled to sue the Defendant for those damages. The Court concluded that Johnson was not entitled to recover from medical expenses beyond those paid by Medicare, because she never had any liability for those expenses and would have been made whole by an award limited to the amount that Medicare paid to her medical providers Coop. Leasing, Inc. v. Johnson citing Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla. 1984).

Similarly, in the instant action, due to the prohibition on “balance billing” by medical providers where they have been paid in full pursuant to the PIP Statute, these amounts are not owed by the Plaintiff. As such, they are not damages for which PLAINTIFF may recover in the instant action. Further, this Court finds as a matter of law, that those balance amounts for PLAINTIFF’s providers (with the exception of the one bill identified for M. Anwarul Hoque, M.D. and for West Coast Radiology, which are discussed below) are not owed by the PLAINTIFF.¹

As to DEFENDANT’s second contention regarding Dr. M. Anwarul Hoque’s August 28, 2008 bill in the amount of $20,000, this Court finds that this $20,000 medical bill is not owed by the PLAINTIFF and, as such, may not be boarded as damages in the instant action. As to West Coast Radiology’s August 28, 2008 bill in the amount of $9,447.06, this Court similarly finds that this bill is not owed by PLAINTIFF, and, as such, may not be boarded as damages in the instant action.

DEFENDANT points to Florida Statute Section 627.736 (5)(c)(1) which states in pertinent part:

With respect to any treatment or service . . . the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date or electronic transmission date of the statement. . . The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.

This section does include an exception for medical providers that submit a Notice of Initiation of Treatment within 21 days after its first examination or treatment of the claimant which allows the providers to submit charges for treatment or services rendered up to, but not more than 75 days before the post mark date of this statement. However, it is undisputed that this exception does not apply to these charges, as the charges for these services were first submitted to STATE FARM approximately 95 days after the date of service.

Pursuant to the PIP Statute, medical service providers must submit their bills directly to a PIP insurer within 35 days of the date of service, and in accord with Florida Statute Section 627.736 (5)(c). The penalty for failing to comply with this Statute is the forfeiture of any claim for payment from either the PIP carrier or the patient, in this case the PLAINTIFF. Northeast Florida Neurology Clinics v. Nationwide Mutual Insurance Co., 15 Fla. L. Weekly Supp. 472a, (Fla. Duval Cty. Ct. March 14, 2008). See also Unkel-Anderson v. American International Ins. Co., 13 Fla. L. Weekly Supp. 124a (Fla. 7th Cir. Ct. App. August 17, 2005).

Because the plain meaning of 627.736(5)(c)(1) Florida Statutes indicates that the injured party is not liable for and the provider shall not bill the insured party for charges that are unpaid because of the providers failure to comply with the requirement of timely submission of medical bills, the PLAINTIFF is not liable for these charges and ask that they may not be treated as damages for purposes of PLAINTIFF’s claim for UM benefits. Coral Imaging Services v. GEICO Indemnity Ins. Co. (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D2478a].

This Court recognizes that Personal Injury Protection benefits are meant to be primary coverage for individuals involved in motor vehicle accidents, as indicated in Florida Statutes Section 627.736(4). Further, it is a clear violation of public policy to allow medical providers to withhold their bills from submission to a PIP carrier in order to circumvent the statutorily prescribed fee schedule in order to seek a greater payment in the context of personal injury litigation. The Court is offended by this type of conduct on the part of Florida medical providers.

This Court also recognizes that suits for injuries are not meant to be financial windfalls or lottery jackpots for injured Plaintiffs. Rather, the sole purpose of compensatory damages is to compensate the injured Plaintiff, not to punish Defendants or bestow a windfall upon Plaintiffs. MCI Worldcom Network Services, Inc. v. Mastec, Inc., 2008 WL 2678024, 28 (Fla. 2008) [33 Fla. L. Weekly S473a]. The Florida Supreme Court has noted that injured parties were assured prompt recovery of their major and salient economic losses, not all of their economic losses. As such, because the PLAINTIFF in this case has no legal obligation to pay the medical bill that providers Hoque and West Coast Radiology failed to submit to the insurer, the DEFENDANT cannot now be held responsible for payment of those bills as part of any damage award in this case. Lasky v. State Farm Insurance Co., 296 So.2d (Fla. 1974).

Accordingly, it is

ORDERED AND ADJUDGED: Defendant’s Motion For Partial Summary Judgment (As To Damages) is hereby GRANTED; and it is FURTHER ordered and adjudged that the bills submitted by PLAINTIFF’s medical providers that were paid in full pursuant to Florida Statute Section 627.736(5)(a) 2008 and the bills for medical services withheld by providers M. Anwarul Hoque, M.D. and West Coast Radiology and submitted after the statutorily imposed time limit are not owed by the PLAINTIFF, and therefore will not be imputed against DEFENDANT in the instant action.

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¹This Court acknowledges the holding in Nationwide Mutual Fire Insurance Company v. Harrell, Fla. App. LEXIS 19935 (Fla. Dist. Ct. App. 1st Dist. Dec. 21, 2010) [35 Fla. L. Weekly D2873a] which was decided after the hearing in this case, but prior to the execution of this Order. This case, while holding that the collateral source rule applies in the context of HMO discounts applied to amounts paid to the medical providers in that case, distinguishes that holding from the instant facts, as this case applies to statutory Personal Injury Protection benefits. Which, unlike a contractual HMO scenario, as a matter of law, prohibits a medical provider from ever seeking the “balance” amounts after the fee schedule has been utilized to calculate a payment amount. The statutory framework for determining reimbursement, much like Medicare, demonstrates the legislative intent that their amount should be viewed as a legal nullity, as they are statutorily prohibited from being sought.