22 Fla. L. Weekly Supp. 163a
Online Reference: FLWSUPP 2201GRANInsurance — Personal injury protection — Coverage — Emergency medical condition — Physician hired by insurer to perform compulsory medical examination of insured cannot be used to opine that insured did not have emergency medical condition qualifying insured for higher coverage limits where physician is not treating medical provider
DR. CRAIG SELINGER, D.C., P.A. d/b/a SELINGER CHIROPRACTIC & ACUPUNCTURE, as assignee of Jonathan Grant, Plaintiff, vs. ENTERPRISE LEASING COMPANY OF FLORIDA, LLC, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-012816 CONO 70. August 8, 2014. John D. Fry, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Gables; and Dean A. Mitchell, for Plaintiff. William J. McFarlane, III, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having came before the court on June 16, 2014, after due notice to the parties, on the Plaintiff’s motion for Summary Judgment and the Court having heard argument of counsel, having reviewed the stipulation and being otherwise advised in the Premises of the stipulation of the parties and of the record, it is hereupon,
ORDERED AND ADJUDGED that same Motion be, and the same is hereby granted.
The legal issue before the court involves the “emergency medical condition” provision added to F.S. §627.736(1)(a)(1)through (1)(a)(4) by Laws 2012, c. 2012-197, which took effect on January 1, 2013. By agreement of counsel for the parties, the dispositive, and only issue to be decided is whether the Defendant may challenge the “emergency medical condition”(“EMC”) determination with an after the fact report by a doctor it hired to perform a compulsory medical examination and/or record review. All other issues and defenses are waived and abandoned by agreement of the parties so that the court can determine this legal issue without unnecessary expense. Defendant’s answer raised the “affirmative defense” that pursuant to §627.736(1)(a)(4), reimbursement is limited to $2,500.
The facts of this case indicate Jonathan Grant was injured in an automobile accident covered by the Florida No Fault Law, §627.736 on March 26, 2013. He sought and was provided with “medical care and services” by his treating physicians. One of Mr. Grant’s treating providers, Jeffrey Katzell, M.D., rendered care and services to Mr. Grant and also determined he suffered from an Emergency Medical Condition (EMC).
Defendant seeks to challenge that “EMC” determination with an opinion by Stuart Krost, M.D., a medical doctor selected by the Defendant who conducted a compulsory physical examination of Mr. Grant pursuant to § 627.736(7)(a) (which the parties refer to as an “IME.”) and record review. It is undisputed Dr. Krost is not a treating doctor. The compulsory medical examination and record review took place after Mr. Grant was diagnosed as suffering from an EMC by treating provider, Dr. Katzell.
The court has reviewed the pleadings, the Summary Judgment evidence on file, the written and executed stipulation of the parties, and has considered the provisions of §627.736(1)(a)(1)-(1)(a)(4). Summary Judgment may be granted in there is no “genuine issue” of “material fact” and the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
The sole remaining issue before the court is one of law and involves the application of F.S. §627.736(1)(a) and its sub-parts. Subsection (1)(a)(4) limits coverage for services and care to $2,500 “if a ‘provider’ listed in subparagraph 1., or subparagraph 2, determines that the injured person did not have an emergency medical condition.”
Both subsections (1)(a)(1) and (1)(a)(2) of the statute reference ‘provider’s of “services and care.” “Initial services” under (1)(a)(1), and “followup services” under (1)(a)(2).
Plaintiff contends that as written, the statute only permits a provider of “services and care” to make the “EMC” or “no EMC” determination as specifically set forth in §627.736(1)(a)(3) and (1)(a)(4). Defendant contends that because Stuart Krost, M.D., the defense “IME” doctor, is a medical doctor, he is eligible pursuant to F.S. §627.736(1)(a)(4) to make the “no EMC” determination which would limit coverage to $2,500.00. The Plaintiff disagrees with this argument because Dr. Krost did not provide initial services and care as stated in §627.736(1)(a)(1) or follow up services and care as stated in §627.736(1)(a)(2).
There is no dispute that Mr. Grant (the patient) received care and services from Jeffrey Katzell, M.D.,who evaluated Mr. Grant, treated him by prescribing medications to Mr. Grant and agreed to see him for follow up treatment care. It is also undisputed that Dr. Katzell is a Medical Doctor licenses under Chapter 458 which is one of the enumerated chapters under which the emergency medical condition determination can be made. It is further undisputed that Dr. Katzell examined Mr. Grant and his MRI and determined that Mr. Grant, a 29 year old, suffered an “emergency medical condition” as a result of the accident, particularly a herniated disc with radiculopathy and weakness.
F.S. §627.736(1)(a)(3) expressly provides for $10,000 in personal injury protection coverage if such determination is made by a physician licensed under Chapter 428 (medical doctor). It states:
Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined hat the injured person had an emergency medical condition.
Even though Dr. Krost is a medical doctor licensed under Chapter 458, there is no evidence in the record, nor is it contended, that Dr. Krost who did an “IME” examination of Mr. Grant, “provided” “medical services and care” to Mr. Grant; nor did he serve as a medical provider of either initial or followup services and care to Mr. Grant.
Courts of this state are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Holly v. Auld, 450 So.2d 217 (Fla.1984). See also, Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla.4th DCA 2011) [36 Fla. L. Weekly D1062a](stating same principle as Auld that the court cannot “extend, modify, or limit” a statute’s express terms.)
The court determines there is no genuine issue of material fact. As written, the plain wording of the statute only permits a provider of “services and care” who “provides” either initial services or “followup” services to the injured patient to make the “EMC” determination.
Defendant essentially asks this court to re-write F.S. §627.736(1)(a) (4) to include a medical doctor who has not provided “services and care” to Mr. Grant as one who can make a “no ‘EMC’ ” determination. F.S. §627.736(1)(a) (4) states
Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. is limited to $2,500 if a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.
This court is without power to do so as doing so would re-write the statute. Defendant’s remedy is to lobby for a change in the Legislature. As written, F.S. §627.736(1)(a)(4) does not extend its reach to an otherwise qualified physician (medical doctor under Chapter 458) who is not a provider of “services and care” to his patient. Were the Statute to extend that power to parties subsequent to treatment it would render the statute meaningless.
The court rejects Defendant’s attempt to utilize canons of statutory construction and use and consideration of legislative history beyond the plain wording of the statute because the wording of the statute is plain and unambiguous, and has not been argued to be ambiguous by the Defendant who offers such material. Furthermore, the extrinsic materials offered are inadmissible hearsay and are not authenticated.
The court’s ruling is based on the plain wording of the statute which is being strictly construed as required by Florida law when interpreting laws governing insurance statutes. The provisions of §627.736(1)(a)(1)-(1)(a)(4) are clear. §627.736(1)(a)(3) provides for “reimbursement for services and care provided in subparagraph 1 or subparagraph 2. up to $10,000 “if a physician licensed under chapter 458. . .has determined that the injured person had an emergency medical condition.” §627.736(1)(a)(4) limits coverage to $2,500 if a provider listed in subparagraph 1 or 2 of the statute “determines that the injured person did not have an emergency medical condition.” The doctor hired by the Defendant is not a provider of medical services. As further support, the PIP statute, over and over again when addressing a “provider”, refers to a provider of medical services. The PIP statute does allow an insurer to challenge medical necessity, reasonableness of price and whether the treatment was related to the crash at any time. See §627.736(4)(b) and §627.736(7)(a). There is no express mechanism in the statute to allow an insurer to challenge whether an insured has an EMC. If the legislature wanted an insurer to have the ability to challenge a treating provider’s determination of an EMC it would have expressly provided for this provision in the Statute.
As such and pursuant to Florida law and the arguments made by Plaintiff’s counsel, the Defendant’s doctor cannot be used to opine the patient did not have an EMC because he was not a treating provider.
Accordingly, it is Ordered and Adjudge that Plaintiff’s motion for Summary Judgment is hereby granted. Plaintiff shall submit a Final Judgment in the agreed amount of damages as pleaded in the complaint.
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