21 Fla. L. Weekly Supp. 489a
Online Reference: FLWSUPP 2106SEOTInsurance — Personal injury protection — Affirmative defenses — Failure of medical provider to comply with chiropractic record keeping requirements set by administrative rule is valid basis for affirmative defense that medical treatment was not lawfully rendered — Error to fail to allow insurer to prove that provider failed to lawfully comply with record keeping requirements
STATE FARM MUTUAL AUTOMOBILE COMPANY, Appellant, vs. GABLES INSURANCE RECOVERY, INC., a/a/o JOSE SEOTA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-225 AP. L.T. Case No. 08-4741 CC 25. March 26, 2014. On Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Counsel: Douglas H. Stein, Seipp & Flick, LLP, for Appellant. Dagmar Llaudy, Bilibrough & Marks, P.A., for Appellee.
(Before SANCHEZ-LLORENS, MIRANDA, and TINKLER MENDEZ, JJ.)
(PER CURIAM.) State Farm Insurance Company (“State Farm”) is appealing the final summary judgment rendered by the lower tribunal in favor of Gables Insurance Recovery, Inc., a/a/o Jose Seota (“Gables Recovery”).
On July 11, 2007, Jose Seota was involved in an automobile accident. At the time of the accident, he was insured by State Farm. Mr. Seota sought treatment for those injuries from ET Rehabilitation Center, Inc. (“ET Center”). He executed an assignment of benefits to ET Center. ET Center submitted the treatment bills to State Farm. State Farm failed to pay the treatment bills. Thereafter, ET Center assigned its rights to the insurance policy to Gables Recovery.
Gables Recovery filed suit against State Farm for violating the insurance contract by failing to pay the treatment bills. The trial court entered partial summary judgment in Gables Recovery’s favor on the issue of reasonableness, relatedness, and necessity. Previously, State Farm raised, as an affirmative defense, the failure to lawfully render service by failing to create and maintain records pursuant to Florida Administrative Code Rule 64B2-17.0065. The trial court entered final summary judgment in favor of Gables Recovery finding that it was without jurisdiction to determine and interpret administrative rules governing chiropractic physicians as it is within the exclusive jurisdiction of the Department of Health. This appeal timely follows.Standard of Review
The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].Affirmative Defense
Generally, an affirmative defense is an assertion by the defendant that the plaintiff in the action has not taken action to procure the necessary conditions precedent to activate the duties under the contract. Custer Medical Center vs. United Auto. Ins. Co., 62 So. 3d 1086, 1097 (Fla. 2010) [35 Fla. L. Weekly S640a]. “An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to probe that the affirmative defense does not exist.” Id. The Florida Supreme Court recognizes that the burden to prove an affirmative defense, including every element of the affirmative defense rests on the party asserting the defense. Id.
State Farm alleged the affirmative defense of failure to lawfully render services to the insured, arguing that maintaining proper medical records is integral to lawfully rendering services. § 627.736(5)(b)1.b, Fla. Stat. (2007). State Farm contends that Gables Recovery violated rule 64B2-17.0065(2)(a), (d), and 64B2-17.0065(3) by failing to maintain proper medical records.
There is a dearth of law with regard to this issue. However, the circuit court acting in its appellate capacity should consider all decisions from our appellate division when searching for precedents. State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). In this circuit, there is one case that addresses this issue, United Auto. Ins. Co. v. Atlantic Medical Center, Inc., a/a/o Manuel E. Floyd, 20 Fla. L. Weekly Supp. 1127b (Fla. 11th Cir. Aug. 29, 2013). In United Auto v. Atlantic Medical, the trial court found that there was no legal basis for asserting record keeping as an affirmative defense. United Auto. Ins. Co. v. Atlantic Medical Center, Inc., a/a/o Manuel E. Floyd, 20 Fla. L. Weekly Supp. 1127b (Fla. 11th Cir. Aug. 29, 2013). The circuit appellate court held that an insurer may question proper record keeping asan issue of fact. Id. It found that failing to comply with chiropractic record keeping requirements was a valid affirmative defense, citing to section 627.732(11), section 460.413(m), and rule 64B2-17.0065(2)-(3) as its authority. Id.
The applicability of an administrative rule as an affirmative defense in a personal injury protection action concerns this circuit appellate court. As such, it is necessary to perform an in depth analysis.
In statutory construction, a statute, or in this case, an administrative rule should be read together to achieve consistency. Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992); Grueiro v. Liberty Mailing, Inc., 43 So. 3d 826, 828 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1913c]. Chiropractic medical keeping standards are governed by the Board of Chiropractic Medicine, Chapter 64B2-17 under the Florida Administrative Code. Fla. Admin. Code R. 64B217.0065 (2007). Rule 64B2-17.0065(2)(a) and (d) provides that the purpose for maintaining medical records is to serve as a basis for planning patient care, for continuity in the evaluation of the patient’s condition and treatment, and to assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient. Rule 64B2-17.0065(3) states that
The medical record shall be legibly maintained and shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs dispensed or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. Initial and follow-up services (daily records) shall consist of documentation to justify care. If abbreviations or symbols are used in the daily recordkeeping, a key must be provided.
However, rule 64B2-17.0065(7) provides in pertinent part that “when such examinations, tests, procedures, or treatments are pursuant to a court order or rule or are conducted as part of an independent medical examination pursuant to . . . 627.736(7), F.S., the record maintenance requirements of Section 456.057, F.S., and this rule do not apply.” Rule 64B2-17.0065 is consistent, except for sub-section (7), wherein it carves out an exception to the maintenance of records as it pertains to independent medical exams.
Herein, the trial court did not afford State Farm the opportunity to prove that Gables Recovery failed to lawfully comply with the medical record keeping requirements of rule 64B2-17.0065. Lawfully 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.” § 627.732(11), Fla. Stat. (2007).
The final summary judgment entered by the trial court is hereby reversed. This case is remanded to the trial court for proceedings consistent with this opinion.
REVERSED.
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