23 Fla. L. Weekly Supp. 617a
Online Reference: FLWSUPP 2306GALDInsurance — Personal injury protection — Requests for documentation of relatedness and necessity of MRI that were made more than 30 days after insurer’s receipt of MRI bill are untimely — MRI provider was not required to supply requested documentation that was not in its possession or inform insurer that it did not possess documents — Total forfeiture of PIP benefits is not remedy for failure to provide documentation; insurer’s remedy in face of refusal to provide documentation is to petition court for entry of order permitting discovery
HEALTH DIAGNOSTICS OF MIAMI, LLC, d/b/a STAND-UP MRI OF MIAMI, a/a/o Edwin Galdamez, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO11-13082(73). October 21, 2015. Steven P. DeLuca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Reuven Herssein, Herssein Law Group, North Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORRECONSIDERATION OF COURT’S ORDER DATEDAUGUST 13, 2013, GRANTING DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION REGARDING PLAINTIFF’SFAILURE TO RESPOND TO (6)(B) REQUESTS
THIS CAUSE having come before the Court, on Plaintiff’s Motion for Reconsideration of Court’s Order Dated August 13, 2013, Granting Defendant’s Motion for Summary Disposition Regarding Plaintiff’s Failure to Respond to (6)(b) Requests and the Court having reviewed the Court file, having heard arguments of counsel, and being otherwise advised in the Premises, it is hereupon, ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED, this Court’s Order dated August 13, 2013, is hereby vacated, and summary disposition regarding Plaintiff’s failure to respond to (6)(b) requests is hereby GRANTED in favor of Plaintiff.STANDARD OF REVIEW
It is well settled that a trial court has the inherent authority to reconsider and modify or retract its interlocutory orders such an order granting summary judgment.1
BACKGROUND
1. This is a lawsuit for unpaid personal injury protection benefits in the amount of $1,280.00.
2. On or about March 02, 2010, Edwin Galdamez was injured in an automobile accident.
3. Due to the injuries sustained as a result of the above mentioned automobile accident, the Plaintiff began treating under the care of Dr. Thomas Maguire, D.C.
4. On May 19, 2010, Dr. Thomas Maguire, D.C. prescribed an MRI of the lumbar spine.
5. Based on the prescription from Dr. Thomas Maguire, D.C., Plaintiff performed an MRI of the lumbar spine on May 25, 2010.
6. On June 07, 2010, Plaintiff timely submitted its bills for the services provided to Edwin Galdamez to the Defendant, which included a CMS 1500 form, Assignment of Benefits, Disclosure & Acknowledgment form, a copy of the prescription, and the MRI report.
7. Rather than pay the bill, Defendant sent an Explanation of Review (“EOR”) requesting that Plaintiff submit documentation “to substantiate both the relationship of the services to the loss and the medical necessity for the services provided.”
8. As Plaintiff had no access to documentation regarding this request, it did not provide a response.
LEGAL ANALYSIS
1. The PIP statute is unique, in that it abolished “a traditional common-law right by limiting the recovery available to car accident victims” and in exchange, required PIP insurance that was recoverable without regard to fault.2 Although recovery is restricted under this statutory scheme, the Courts have held that the PIP statute is a reasonable alternative to common law tort principles in that it provides “swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.”3 Given its purpose, the Florida Supreme Court has held the provisions of Florida’s No Fault Act must be construed liberally in favor of the insured.4 The PIP statute should be construed in order to give effect to the legislative purpose of providing a broader and more liberal standard of coverage.5 In other words, courts should interpret the PIP statute in a way that provides for more coverage, not less coverage, which is consistent with the Florida Supreme Court’s recent trend when interpreting the PIP Statute.6 With this in mind, it is axiomatic that courts should not interpret the PIP Statute in such a way that would result in the forfeiture of an otherwise viable cause of action.
2. When a Court is interpreting a statute, the starting point is always the plain language of the statute. “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”7 As such, where the language of the statute that the Court is interpreting is clear and unambiguous and conveys a clear and definite meaning, “the statute should be given its plain and obvious meaning.”8 In addition, when a court is interpreting a statute, it is “not at liberty to add words to the statute that were not placed there by the legislature.”9 Furthermore, it is well settled in Florida that Statutes should not be interpreted in a way that would deem the legislative action useless10 or would allow absurd results or consequences.11
3. It is also a well-settled rule of statutory construction that the mention of one thing in a statute implies the exclusion of another. As such, “where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.”12
4. Florida Statutes § 627.736(6)(b) provides, in pertinent part, as follows:
(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES. —
(b) Every . . . clinic, or other medical institution providing . . . services . . . in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested to do so by the insurer against whom the claim has been made, furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained . . . and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment . . . . If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. . . . Any insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code. (Emphasis added).
5. Florida Statutes § 627.736(6)(c) provides as follows:
(c) In the event of any dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and it shall specify the time, place, manner, conditions, and scope of the discovery. Such court may, in order to protect against annoyance, embarrassment, or oppression, as justice requires, enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires.
Any documentation requests, pursuant to Fla. Stat. §627.736(6)(b), made more than 30 days after having received notice of the amount of a covered loss are untimely and will not be considered by this Court.
6. USAA received Plaintiff’s bill for date of service May 25, 2010, on June 11, 2010.
7. Based on the plain and unambiguous language in the Statute set forth above, any documentation requests sent after July 12, 2010 (i.e., more than 30 days from the date that the bill was received by USAA) are untimely and will not be considered by the Court.
8. As such, the only documentation request that was timely sent by Defendant in this case is the EOR dated June 24, 2010.
Plaintiff is an MRI facility and is not in possession of any “documentation to substantiate both the relationship of the services to the loss and the medical necessity for the services provided.”
9. A close reading of Fla. Stat. § 627.736(6)(b) demonstrates that there are essentially 3 separate requests that can be made by an insurer under this subsection:
a. The first option deals with a request that the medical provider “furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary”.
i. There is no record evidence before this Court that USAA ever made a request for a written report as set forth above.
b. The second option deals with a request that the medical provider furnish “a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury”.
i. There is no record evidence before this Court that USAA ever made a request for a sworn statement as set forth above.
c. The third option deals with a request that the medial provider “produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment”. (Emphasis added).
i. On the Explanation of Reimbursement dated June 24, 2010, Defendant requested the following: “Due to a lapse in treatment, prior to our making a reimbursement decision, please submit documentation to substantiate both the relationship of the services to the loss and the medical necessity for the services provided.”
ii. The Court is mindful of the fact that the case at bar is distinguishable from nearly all of the published decisions that pertain to Fla. Stat. § 627.736(6)(b) requests. The published cases typically deal with specific requests made to treating physicians or other medical providers and involve requests for information that is within the possession, custody, or control of that particular treating physician or other medical provider. However, the case at bar deals with an MRI facility, which unlike a treating physician or other medical provider merely honors a prescription — much like a pharmacy — from the treating physician. In other words, Plaintiff is an MRI facility that performs an MRI only when a valid prescription for the MRI is presented.
iii. Unlike treating physicians and other medical facilities, Plaintiff does not maintain, request, or review medical records or any other document created by an entity or individual other than Plaintiff to make a determination as to whether a prescribed MRI is related to a motor vehicle accident or whether the MRI is medically necessary.
iv. At the time an MRI is performed, Plaintiff does not make a determination, nor is it legally required to, that the MRI is either related to a motor vehicle accident or that the MRI is medically necessary.
v. According to Plaintiff’s billing records kept in the ordinary course of business, on or about June 07, 2010, Stand-Up MRI of Miami, timely mailed its billing package, which included a CMS 1500 form, Assignment of Benefits, Disclosure & Acknowledgment form, a copy of the prescription, and the MRI report, to Defendant.
vi. Nothing in Fla. Stat. § 627.736(6)(b) authorizes an insurance company to request documents that are already in its possession. A request for documents already in the insurance company’s possession would delay payment and contradict the intent of the Florida PIP Statute as well as subsection (4)(b), which provides that benefits are generally due and payable within “30 days after the insurer is furnished with notice of the fact of a covered loss. . .”.
vii. As such, at the time that Defendant requested that Plaintiff “. . . please submit documentation to substantiate both the relationship of the services to the loss and the medical necessity for the services provided”, Plaintiff was not in possession of any such documentation and therefore could not provide same to the Defendant.
viii. This is not a case where the Plaintiff outright refused to produce documents that were in its possession, custody, or control. This is a case were the Plaintiff could not produce the documents that were requested because it had no such document in its possession to produce.
Plaintiff is not required to inform Defendant that it has no documents in response to Defendant’s (6)(b)document request and Defendant’s remedy to a outright refusal is to petition the Court under (6)(c).
10. Defendant argued and the Court initially agreed that even if Plaintiff was not in possession of any documents responsive to its (6)(b) request, Plaintiff was nevertheless required to somehow respond so Defendant was made aware that no documents existed.
11. Upon reconsideration of this Court’s prior ruling and review of the opinions mentioned below, which were not issued when the Court made its initial decision in this case, the clear and unambiguous language of Fla. Stat. § 627.736(6)(b) does not require such a response.
12. As set forth above, Fla. Stat. § 627.736(6)(b) merely required Plaintiff to “produce . . . its records.” Nowhere in subsection (6)(b) does the statute require Plaintiff to file a written response notifying Defendant that Defendant was already in possession of all the documents that Plaintiff had, or that Plaintiff was not in possession of any records responsive to the request, or that Plaintiff did not understand the nature of the request, or that Plaintiff was disputing the request. If the Legislature intended for such a response to be required, it would have put language to that effect in the Statute, but it did not.
13. In fact, the Legislature even went so far as to create a specific mechanism for the Defendant to utilize in this type of situation: Fla. Stat. § 627.736(6)(c) “provides a mechanism for the insurer to petition the court to resolve disputes regarding the insurer’s right to the requested discovery.”13
14. As set forth above, subsection (6)(c) provides, in pertinent part, that “In the event of any dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court . . . to enter an order permitting such discovery.”
15. In the case at bar, approximately 18 months lapsed from the time the MRI was performed to the time this lawsuit was filed and Defendant never made any attempt, whatsoever, to obtain the documentation from Plaintiff under (6)(c) or from any other medical provider or from the patient, and Plaintiff should not be penalized, especially with the severe penalty of forfeiture,14 as a result.
a. Based on the record evidence before the Court, Defendant knew that Plaintiff is an MRI facility and it knew or reasonably should have known not only that Plaintiff did not possess the information that Defendant sought in the (6)(b) request, but also that Defendant could have easily obtained this information from either the treating physician or the patient directly.
b. Defendant’s adjuster, Kevin Winner, testified as follows on page 53, lines 16-21 of his deposition transcript:
Q Did you request any information from Dr. Maguire when he submitted his bills?
A It appears we did not.
Q All right. Why did you not request any information from Mr. Maguire?
A I do not know.
16. In Dabul v. State Farm Mut. Auto. Ins. Co.,15 the Court reasoned that “there is no basis to support the trial court’s conclusion that a total forfeiture of PIP benefits is warranted if a medical provider does not comply with (6)(b).” In addition, the Court noted “that the statute provides the insurer a mechanism [under (6)(c)] to seek relief from the trial court, pre-suit, if it requires additional information.”
17. In Millennium Diagnostic Imaging Center, Inc. v. State Farm Mut. Auto. Ins. Co.,16 the insurance company sent a (6)(b) request to the MRI facility and the MRI facility did not produce the documents requested, which led the insurance company to utilize (6)(c). The Court explained that “the remedy for such a breach — a remedy section 627.736(6)(c) contemplates — is an order directing a party to comply with such discovery.”
18. If the Defendant truly needed the information sought in the (6)(b) request made to the Plaintiff, Defendant could have, and should have, petitioned the Court pursuant to (6)(c).
Defendant’s (6)(b) documentation request was nothing more than an exercise in futility.
19. It is clear that Plaintiff was not in possession of any documents that would be responsive to Defendant’s documentation request.
20. In addition, according to the Defendant, to this day the Defendant is still not in a position to substantiate medical necessity or relatedness, even after receiving and reviewing medical records from the only other medical provider that rendered treatment to Mr. Galdamez, the treating physician.
21. Kevin Winner testified as follows on page 22, lines 1-7 of his deposition transcript:
Q Do you have any documentation in support of your position that the MRI in this case is not related to the accident?
A It appears that we do not.
22. Kevin Winner testified as follows on page 25, lines 6-19 of his deposition transcript:
Q You have no documentation at all indicating that the MRI was not medically necessary. Is that correct?
A Again, sir, I have to answer that by we don’t have the information that we need to determine that from your client.
Q My question was, so you have no documentation?
A Indicating that it was not necessary?
Q Correct.
A We have not received that documentation from your client.
Q Have you received it from anybody?
A It appears not.
23. Kevin Winner testified as follows on page 53, lines 22-25 of his deposition transcript:
Q Did you ever receive any information other than the bills from Dr. Maguire?
A It appears that we also received medical records.
24. Kevin Winner testified as follows on page 56, lines 9-25 and page 57, lines 1-3 of his deposition transcript:
Q What information would you need, you personally need, in order to make a reimbursement decision?
A All the medical records, if available.
Q Now, isn’t it true that Dr. Thomas Maguire, the treating physician, had already provided you with those medical records?
A There is medical records in the file. That is correct.
***
Q Is there any additional information other than those medical records that you were already in receipt of that would have helped you make the reimbursement decision?
A Anything that your client could have provided to us to help us make a decision.
Q Can you give a specific example other than medical records?
A I cannot.
25. Kevin Winner testified as follows on page 106, lines 3-23 of his deposition transcript:
Q I’m talking about our 6(b) request for additional documentation. Why did USAA decide to mail four requests versus just mailing one and letting it be?
A We needed the information to make a decision if this was related and medically necessary.
Q So as you sit here today have you made that determination?
A We have not received the response from this medical provider.
Q So you haven’t made that determination? You have not made that determination as you sit here today?
A Correct. We have not received the requested response from the medical provider.
***
Q So, in other words, the claim is really still under investigation as we sit here today. Right?
A It appears that way, yes.
26. If after receiving all of the medical records from the treating physician, Defendant still cannot make a determination of medical necessity or relatedness as of the date that Mr. Winner’s deposition was taken on July 17, 2013 — more than 3 years after the date of accident — then this determination could apparently never be made by the Defendant and the documents that the Defendant needed to substantiate medical necessity or relatedness simply do not exist.
27. The Court is mindful of the fact that even had Plaintiff responded to the Defendant’s (6)(b) documentation request, Plaintiff’s bill would still have been denied based on Defendant’s position that there is no coverage in this case.
Based on the forgoing, this Court’s Order dated August 13, 2013 is hereby vacated and summary disposition regarding Plaintiff’s failure to respond to (6)(b) requests is hereby GRANTED in favor of Plaintiff.
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1See e.g., Alabama Hotel Co. v. J. L. Mott Iron Works, 98 So. 825 (Fla. 1924); Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970); Bettez v. City of Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987); Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So. 2d 842, 843 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2535b]; Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) [23 Fla. L. Weekly S625a]; Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 4th DCA 1984).
2State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1077 (Fla. 2006).
3Id.; Ivey v. Allstate Insurance Company, 774 So. 2d 679 (Fla 2000) [25 Fla. L. Weekly S1103a].
4Government Employees Ins. Co. v. Novak, 453 So. 2d 1116 (Fla. 1984); Stewart v. Allstate Ins. Co., 618 So. 2d 771 (Fla. 5th DCA 1993); Hunter v. Allstate Ins. Co., 498 So. 2d 514 (Fla. 5th DCA 1986).
5Blish v. Atlanta Mutual Fire Ins. Co., 736 So. 2d 1151 (Fla. 1999) [24 Fla. L. Weekly S204a].
6See e.g., Geico General Ins. Co. v. Virtual Imaging Services, Inc., No. SC12-905 (Fla. 2013) [38 Fla. L. Weekly S517a]; Nunez v. Geico General Ins. Co., No. SC12-650 (Fla. 2013) [38 Fla. L. Weekly S440a].
7See Vargas v. Enter. Leasing Co., 993 So. 2d 614, 618 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2574a] (quoting Garcia v. Vanguard Car Rental USA, Inc., 510 F. Supp. 2d 821, 829-30 (M.D. Fla. 2007), aff’d, 540 F.3d at 1242 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C1001a]); Haskins v. City of Ft. Lauderdale, 898 So. 2d 1120, 1123 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D849a](“A basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992)).
8City of Miami v. Valdez, 847 So. 2d 1005, 1008 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1039a].
9State v. J.M., 824 So. 2d 105, 111 (Fla.2002) [27 Fla. L. Weekly S621a] (quoting Hayes v. State, 750 So. 2d 1, 4 (Fla.1999) [24 Fla. L. Weekly S467a]).
10See e.g., U.S. Security Insurance Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D701a].
11See e.g., City of St. Petersburg v. Siebold, 48 So. 2d 291 (Fla. 1950).
12Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976); see also Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000) [25 Fla. L. Weekly S120a] (reasoning that “[u]nder the principle of statutory construction, expression unius est exclusio alterius, the mention of one thing implies the exclusion of another.”).
13See e.g., Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 975 So. 2d 1247 (Fla. 3d DCA 2008) [32 Fla. L. Weekly D1396a]. “[S]ubsection (c) . . . gives the insurer the right to petition the court for permission to engage in discovery.” Marlin Diagnostics v. State Farm Mutual Automobile Ins. Co., 897 So. 2d 469 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2828b].
14If the Court disagreed with Plaintiff’s position, which it does not, the proper remedy would be to abate the action until the condition precedent is complied with not to dispose of the case, which would result in forfeiture of the cause of action and the inability to have the case decided on its merits, which is contrary to Florida’s jurisprudence as well as the entire purpose of the PIP Statute. See e.g., Jimenez v. Community Asphalt Corp., 968 So. 2d 668 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D85b]; Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D2191d] (holding that the proper remedy for bringing an action prematurely is not dismissal with prejudice, but abatement or stay of the claim); Blumberg v. USAA Cas. Ins., 790 So. 2d 1061 (Fla. 2001) [26 Fla. L. Weekly S473a].
1521 Fla. L. Weekly Supp. 28b (Fla.11th Cir. Ct. (Appellate) 2013).
16Case No. 3d12-1074 (Fla. 3DCA 2014) [39 Fla. L. Weekly D91a].
