23 Fla. L. Weekly Supp. 615b

Online Reference: FLWSUPP 2306NATIInsurance — Personal injury protection — Coverage — Medical expenses — Inadequate record keeping by medical provider is not lawful basis for nonpayment of PIP benefits — Affidavit attacking adequacy of provider’s record keeping is not sufficient to preclude partial summary judgment on issues of relatedness and necessity of treatment

AMERICAN HEALTH & REHABILITATION, INC., ACUMAS TREATMENT CENTER, INC., a/a/o JOSEPH NATIVUS, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 08-007773 COCE 50 (08-7774 Consolidated). October 16, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo, Andrea Jakob, and Andrew Davis-Henrichs, for Plaintiff. Rashad El-Amin, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on October 16, 2015, on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:

Background. Nativius Joseph was involved in an automobile accident on September 27, 2003. In 2003, Mr. Joseph was issued an insurance policy by the Defendant, United Automobile Insurance Company (hereinafter referred to as “United Auto”), and this policy of insurance was in effect on the date of the loss. Mr. Joseph sustained injuries in this automobile accident and sought medical treatment at the Plaintiffs’ facility from September 29, 2003 through December 17, 2003.

The Plaintiff has filed a Motion for Partial Summary Judgment as to the issues of relatedness and medical necessity. In support of Plaintiff’s Motion, the Plaintiff has attached the sworn affidavit of Dr. Robert Frankl, D.C., in which Dr. Frankl testified under oath that, upon review of the medical records, the treatment rendered to Mr. Joseph was medically necessary and related to the automobile accident of September 27, 2003.

The Defendant relies on the opinion of Dr. Don Morris. The affidavit of Dr. Don Morris states: “Both American Health & Rehabilitation Center as well as Acumas Treatment completely failed to document the clinical course of the patient’s recovery. Diagnoses were not supported in services and treatments were not justified.”

Further, the deposition of Dr. Don Morris was taken on May 2, 2014. The following are excerpts from the deposition:

Q: And what was your opinion?

A: . . the treatments are not justified on the records. . .multiple requirements on the rules of Chiropractic record keeping in Florida were not followed . . .

Q: So you came up with zero based on your feeling the deficiencies with the records as well as any other stated reasons?

A: Correct.

Q: Would it be fair to say you don’t remember the exact wording of the definition of medical necessity?

A: Yes.

Plaintiff’s position is that Dr. Morris’s opinions as to insufficient or inadequate recordkeeping does not touch upon the issue of medical necessity.

Conclusions of Law

The Court finds that Dr. Frankl’s affidavit is legally sufficient for Plaintiff to meet its burden of proof as to the issues of relatedness and medically necessity, thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.

In the instant action, the Defendant relied on the sworn affidavit and deposition testimony of Dr. Don Morris. After carefully reviewing the evidence, it is this Court’s finding that Dr. Morris’ testimony does not create a genuine issue of material fact sufficient to defeat the Plaintiff’s Motion for Partial Summary Judgment.

The applicable insurance contract at issue was issued in 2003. It is well settled that “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract” Menendez v. Progressive Exp. Ins. Co., Inc., 35 So.3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a] citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c].

The parameters of when PIP benefits are due, and the legal basis which support the refusal to pay benefits are wholly controlled by Florida Statute § 627.736 (2003). Since the statute is in derogation of the common law, it must be strictly construed. Humana Health Plans v. Lawton, 675 So. 2d 1382 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1299g]. The intent of the legislature must be determined primarily by the language of the statute, which when clearly and unambiguously articulated “must be given its plain and obvious meaning.” Ortega v. United Automobile Insurance Company, 847 So. 2d 994, 997 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D796a], citing Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla. 2000) [24 Fla. L. Weekly S69a]. It is against this backdrop that the statutory provisions should be analyzed.

Florida Statute § 627.736(1)(a) defines required benefits and states that every PIP policy shall pay 80% of all “reasonable expenses for medically necessary” medical services. Florida Statute § 627.736(4) states that benefits are due and payable upon receipt of reasonable proof of such loss and the amount of expenses. Florida Statute § 627.736(4)(b) states the insurance benefits are overdue if not paid within 30 days. Florida Statute § 627.736(5)(b) is significant as it outlines the reasons an insurer is not required to pay a claim or charges as:

a) made by a broker or on behalf of a broker;

b) for treatment that was not lawful at the time it was rendered;

c) to any person who knowingly submits a false or misleading statement relating to the claim or charges;

d) if the bill or statement does not substantially meet the applicable requirements of Florida Statute § 627.736(5)(d);

e) for treatment that is upcoded or unbundled;

f) for medical services or treatment billed by a physician outside of a hospital verified by documentation that the physician is responsible for the services that were rendered.

Florida Statute § 627.736(5)(d) merely states that “all statements and bills for medical services rendered by any physician” shall be on forms approved by the Centers for Medicare and Medicaid Services (CMS 1500 forms), utilizing CPT codes. In the instant action, they were.

Entirely absent from the PIP statute is any obligation to submit medical records in order to be paid¹ or that the medical records maintained by the provider meet any standard for thoroughness as a precondition of payment by an insurer. Stated differently, no provision of the statute supports a claim that “deficient” medical records correlates to any evidence of a lack of medical necessity. Since the PIP statute does not specifically provide that inadequate record keeping is a lawful basis for non-payment, it may not form a lawful basis for non-payment of the medical charges. As long as the billing substantially complies with the requirements of the CMS 1500 form requirements, and if no articulated statutory exception exists, payment of benefits is due within 30 days of the receipt of the bills.

In arguing that the medical records are substandard, the Defendant is relying upon Florida Administrative Code § 64B2-17.00065 and/or § 64B8-9.003. These provisions of the administrative code, which creates minimal record keeping standards, is to serve as a basis for planning patient care, to provide continuity in the evaluation of the patients’ condition and treatment, to furnish documentary evidence of the course of the patient’s medical evaluation and change in condition, document communication between fractioned and other healthcare professionals, and to assist in protecting the legal interests of the patient, hospital and treating practitioner.² Nowhere does this administrative code provide that the failure to maintain such records relieves any insurance company of an obligation to pay for the services from which the charges emanated.

The only remedial element of this administrative provision is the authority of the Board of Chiropractic Medicine or Medical Board to take disciplinary action. There is no private right to bring a cause of action against a practitioner emanating from any alleged failure to comply with this administrative provision.

It is clear that the creation of standards for recordkeeping was for the benefit of the patient and the practitioner, and was not intended to create a justification for nonpayment by an insurer. The PIP statute does not create any exception to the requirement to pay for medical charges premised upon any claimed inadequacies of the records. Therefore, this evidence is not relevant to the question of medical necessity, and may not form a legal basis for a verdict that the medical services were not medically necessary.

This Court agrees with other Florida appellate and trial courts that do not recognize the notion of insufficient record keeping, on the part of the Plaintiff, as a lawful basis for nonpayment of PIP benefits. See e.g Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. 2013)(Appellate Capacity).; Martinez Chiropractic Center, Inc. (a/a/o Camilo Mejia) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 820a (Fla. Broward Cnty. Ct. 2014) (Judge Fry); Douglas Rapid Rehabilitation, Inc. (a/a/o Nicole Bowen) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 816a (Fla. Broward Cnty. Ct. 2014) (Judge Schiff); Michael J. Delesparra, D.C., P.A. (a/a/o Joseph Walkens) v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Fla. Broward Cty. Ct. 2012) (Judge Lee) ; Nob Hill Chiropractic (a/a/o Kenrick Grant) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 195a (Fla. Broward Cty. Ct. 2013) (Judge Cowart); South Florida Pain & Rehabilitation, Inc. (a/a/o Kirt Godfrey) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 981b (Fla. Broward Cty. Ct. 2009) (Judge Trachman); Dr. Kim Reddick, DC PA (a/a/o Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Fla. Volusia Cty. Ct. 2012) (Judge Feigenbaum); Right Choice Medical & Rehab. Corp. (a/a/o Martha Alvarez) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 181a (Fla. Miami-Dade Cty. Ct. 2011) (Judge Pando); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. Seminole Cty. Ct. 2010) (Judge Simmons).

Further both Broward and Miami-Dade circuit courts have previously found Dr. Morris’ testimony insufficient to refute a Plaintiff’s testimony that injuries and treatment were related to an automobile accident and medically necessary. See e.g., Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. 2013)(Appellate Capacity); Garret Weinstein, D.C., P.A. (a/a/o Patricia Eugene) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 878a (Fla. 17th Cir. 2012)(Appellate Capacity).

Specifically in Weinstein, the Broward circuit court in its appellate capacity reversed a jury verdict that was in favor of United Auto where Dr. Morris’ testimony was limited to evidence attacking the adequacy of the medical records and the treating doctor’s alleged failure to inquire further regarding elements of the insured’s past medical history. Id. In Weinstein, the court found the record empty as to whether Dr. Morris answered the question of whether the medical services were medically necessary. Id. Rather, Dr. Morris testimony was that the charges were not “reimbursable” which the court held did not touch upon the issue of medical necessity. Id.

Similarly in this case, Dr. Morris attested that the aforementioned dates of service were not medically necessary based upon alleged deficiencies of documentation within the medical records and his belief that the treatment rendered by Plaintiff was not medically necessary.

Analogous to Dr. Morris not touching upon the issue of medical necessity in Weinstein, in this case Dr. Morris similarly falls short in opining on the issue of medical necessity as he attested Plaintiff’s diagnoses were not supported in services and treatments were not “justified.”

Moreover, Dr. Morris also conceded in his deposition to not knowing the definition of the term, “medical necessity” within the PIP context.

Florida Statute § 627.732(2) (2003) defines medical necessity as follows:

“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.”

United Auto is responsible for providing PIP benefits for medically necessary services. Dr. Morris’ lack of knowledge as to the definition of medical necessity is further evidence that the lack of necessity was not the basis of his opinion, but rather dissatisfaction with the records.

With respect to the issue of relatedness, in PIP cases “the medical treatment covered by the insurance policy is treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. 2013)(Appellate Capacity) citing to In re Standard Jury Instructions in Civil Cases, 966 So.2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a]. In other words, relatedness is established by showing that injuries and subsequent medical treatment therefore arose out of a subject accident. Id. To refute relatedness, United Auto had to present actual and/or factual evidence which would purport to more or less show that the injuries and ensuing medical treatment did not arise out of the subject accident.

Dr. Morris’ affidavit attests that the aforementioned dates of services are not related to the automobile accident based on an opinion that the medical records of the Plaintiff were allegedly deficient. The mere denial by the United Auto that the treatment was related or medically necessary without the demonstration of some intervening act or circumstance eliminating the pre-existing relatedness does not create a genuine issue of material fact. As United Auto failed to present any competent evidence refuting the testimony of Dr. Frankel that the treatment was related to the September 27, 2003 automobile accident, there is no issue of material fact as to relatedness and summary judgment is granted in favor of the Plaintiff for all dates of service at issue.

As the sum of Dr. Morris’ opinion concerns the adequacy of the records, and not the necessity of the treatment, it does not create a genuine issue of material facts as it pertains to relatedness and medical necessity of the treatment. Therefore, based on the above findings, the Court hereby grants Plaintiff’s Motion for Partial Summary Judgment as to Relatedness and Medical Necessity.

ORDERED and ADJUUDGED that Plaintiff’s Motion for Partial Summary Judgment is granted as to relatedness and medical necessity.

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¹Unless requested pursuant to Florida Statute §627.736(6)(b)(2003).

²Interestingly, insurers are not of the class the provision seeks to protect.