18 Fla. L. Weekly Supp. 604a
Online Reference: FLWSUPP 1807BEHR
Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — Where medical provider failed to comply with applicable Minimal Recordkeeping Standards, treatment was not lawfully rendered, and insurer is not obligated to pay for treatment
SKYLORIE BEHRENS, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2009-CC-004766. April 5, 2011. Robert G. Fegers, Judge.
FINAL JUDGMENT FOR THE DEFENDANT
THIS CAUSE came on before the Court on the Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the pleadings, heard argument of counsel, and being otherwise duly advised in the premises, hereby orders as follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
1. On or about September 1, 2009, Plaintiff, Skylorie Behrens, filed this action against the Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), seeking to recover $3,313,00 in personal injury protection (“PIP”) benefits for medical treatment that she received from Kernan Chiropractic Center for dates of service September 19, 2005 through May 2, 2007.
2. State Farm had initially provided benefits to Plaintiff, but withdrew payment pursuant to 627.736(7)(a), Florida Statutes, for future treatment not yet rendered based upon the report of a Florida physician stating that further treatment was not reasonable, necessary and related. Yet, Plaintiff continued to receive medical care from Kernan Chiropractic Center from September 19, 2005 through May 2, 2007, and filed this suit to recover the cost of that medical treatment from State Farm.
3. The medical treatment rendered by Kernan Chiropractic Center for which Plaintiff seeks payment from State Farm was not “lawfully” rendered, as required by Section 627.736(5), thus payment is not due to Plaintiff under the policy.
3. Section 627.736(5)(b), Fla. Stat. (2005), provides, in relevant part, as follows:
1. An insurer or insured is not required to pay a claim or charges:
b. For any service or treatment that was not lawful at the time rendered.
4. Pursuant to § 627.736(5), benefits are not due for any medical treatment that is not lawfully rendered.
5. As defined by Florida’s Motor Vehicle No-Fault Law, medical services are “lawful” if they are “in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provisions of medical services or treatment.” Section 627.732(11), Fla. Stat (2005).
6. The civil and administrative requirements of the State of Florida for the rendering of chiropractic treatment to patients include the Minimal Recordkeeping Standards of the State of Florida. As set forth in Florida’s Administrative Code at 64B2-17.0065(1), these standards were enacted to serve several significant functions:
(a) to serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment;
(b) to furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition;
(c) to document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care; and,
(d) to assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.
64B2-17.0065(1), Fla. Admin. Code. These recordkeeping requirements are of such importance to the treatment of chiropractic patients that the failure to comply with the minimal recordkeeping requirements is grounds for disciplinary action by the State’s chiropractic regulatory authority or, even, denial of a license. Section 460.413(1), Fla. Stat. (2005).
7. Accordingly, in order to comply with Florida statutory and administrative law, chiropractors providing treatment in the State of Florida shall maintain records sufficient to justify the care that is provided to the patient. Section 460.413(1)(m), Fla. Stat.; Section 64B2-170065(3), Fla. Admin. Code. Those records shall contain, at a minimum,
(a) patient history;
(b) symptomatology and/or wellness care;
(c) examination findings;
(d) diagnosis;
(e) prognosis;
(f) assessments;
(g) treatment plan; and,
(h) treatment provided.
64B2-17.0065(4), Fla. Admin. Code. And see § 460.413(1)(m), Fla. Stat. (medical records must include, but are not limited to, the identity of the treating chiropractor, patient histories, examination results, test results, X rays, and diagnoses).
8. Furthermore, once a treatment plan has been established, the daily records of treatment shall include, at a minimum;
(a) subjective complaints;
(b) objective findings;
(c) assessments
(d) treatments provided; and
(e) periodic reassessments as indicated.
64B2-17.0065(6), Fla. Admin. Code.
9. By way of examples of recordkeeping deficiencies the following exchanges occurred during the January 6, 2011 deposition of Dr. Wetzork, D.C.:
Q. How did the patient react to treatment?
A. She did well to it. She responded well.
Q. How do you know?
A. She verbalized that to me.
Q. You remember that now from September 19, 2005?
A. To the best of my recollection, yes.
Q. Is there any notation in your record to how she responded to treatment?
A. I don’t see that here.
Q. Okay. So anyone looking at your record would not be able to tell how she responded to the treatment; would that be correct?
A. That’s correct, they would not see that written there.
(See Wetzork Deposition, p. 43, I. 17- p. 44, I. 6.)* * *
Q. So you can’t tell from this record who the massage therapist was?
A. I can’t tell from this, but I could go back and look at my schedule and I could tell you the massage therapist’s name.
(See Wetzork Deposition, p. 44, II. 21-25)* * *
Q. So I think what you’ve admitted is that your records don’t comply with the minimum recordkeeping standards to this patient, correct?
A. According to what you’re saying, yes, sir.
Q. Well
A. All right. According to what you’re referencing, yes, the chiropractic guidelines, right
(See Wetzork Deposition, p. 75 II 1-9)
10. It is undisputed that Kernan Chiropractic Center’s medical records failed to comply with the Florida Minimal Recordkeeping Standards.
11. In his January 6, 2011, deposition, Plaintiff’s treating physician, Ted Wetzork, D.C., testifying in his capacity as the corporate representative for Kernan Chiropractic Center, admitted that his treatment did not comply with all state law related to the provision of medical services. Specifically, Dr. Wetzork repeatedly testified that Kernan Chiropractic Center failed to comply with the State of Florida’s Minimal Recordkeeping Standards and conceded that the provider’s records of Ms. Behren’s treatment, as a whole, failed to comply. See Wetzork Deposition, pp. 57, I. 14-p. 58, I. 23; p. 66, II. 9-12; p. 67, II. 20-23; p. 69, I. 24-p. 70, I. 3; p. 71, I. 16-p. 73, I. 15; p. 75, II. 1-9.
12. Dr. Wetzork’s testimony demonstrated that the policy underlying the minimal recordkeeping requirements was repeatedly frustrated in Kernan Chiropractic Center’s treatment of Ms. Behrens as it is impossible for anyone other than Dr. Wetzork to review the records of treatment and determine what treatment was actually provided to Ms. Behrens, by whom, or how she responded. See e.g., Wetzork Deposition, p. 45, I. 1-p. 52, I. 25; p. 56, II. 8-11; p. 57, I. 18-p, 58, I. 23; p. 65 I. 18-p. 66, I. 12; p. 67, II. 16-23; p. 73, II. 6-18. Kernan Chiropractic Center’s records of treatment for Ms. Behrens are insufficient to justify the care that was provided to her and are in violation of the relevant civil and administrative laws of the State of Florida.
13. Moreover, it is clear, upon review of Section 627.736, Florida Statutes, that the legislature created a framework for the processing of PIP benefits. Rooted in this framework is an insurer’s access to written reports “of the history, condition, treatments, dates, and costs of such treatment for the inured person and why the items identified by the insurer were reasonable In amount and medically necessary.” Section 627.736, Fla. Stat. Failure to have treatment notes that comply with minimums required by the administrative code and as contemplated within Section 627.736(6)(b), Florida Statutes, places the insurer in a precarious posture. If this Court were to allow PIP claims that are not supported by proper and minimal documentation by the treating physician: It would require Insurers to accept conclusions without documented fact, a result clearly beyond the dictates of Florida Statutes; and it would allow the propagation of “unlawful” activity.
14. Because Kernan Chiropractic Center’s care of Ms. Behrens was in violation of the relevant civil and administrative laws of the State of Florida said treatment was, by definition, not “lawful.” Fla. Stat. § 627.732(1)(m). Because the treatment was not “lawful,” State Farm is not obligated to pay for said treatment under Florida’s Motor Vehicle No-Fault Law. Fla. Stat. § 627.736(5).
It is, therefore, ORDERED AND ADJUDGED, that
1. State Farm’s Motion for Final Summary Judgment is hereby GRANTED;
2. Final Judgment is hereby entered in favor of the Defendant State Farm Mutual Automobile Insurance Company;
3. The Plaintiff shall take nothing by this action and State Farm shall go hence without day;
4. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm and against Plaintiff, including jurisdiction to determine the Issue of entitlement and the amount of such attorneys’ fees.
