24 Fla. L. Weekly Supp. 41a

Online Reference: FLWSUPP 2401DAVIInsurance — Personal injury protection — Coverage — Emergency medical condition — Declaratory action — Insurer’s right to challenge EMC determination — Section 627.736(7) permits insurer to review and challenge physicians’ diagnosis of EMC by conducting independent medical examination and, by extension, peer review

CHRISTINE DAVIS, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County. Case No.: 14-CA-012848-J. April 14, 2016. Honorable Rex Barbas, Judge.

AMENDED ORDER

THIS CAUSE having come before this Court on February 22, 2016, on Plaintiff’s Motion for Final Summary Judgment as to Defendant’s Affirmative Defense #7 and having reviewed the file, heard arguments of counsel, and the Court being otherwise fully advised in the premises and finds as follows:

1. On October 14, 2014, Plaintiff was involved in a motor vehicle accident.

2. On October 15, 2014, Plaintiff was treated by Paul Raveling, D.C. who then referred Plaintiff to Conrad D. Tamea, M.D.

3. On October 29, 2014, Dr. Tamea designated the Plaintiff with an emergency medical condition (“EMC”).

4. On November 11, 2014, Defendant hired Melvyn G. Drucker, M.D. to conduct an Emergency Condition Medical Review of Dr. Tamea’s diagnosis of an EMC.

5. Dr. Drucker opined that Plaintiff did not meet the criteria for an EMC diagnosis based on the medical records reviewed.

6. Subsequently, the Defendant limited PIP benefits to $2500.00 pursuant to Fla. Stat. 627.736(1)(a)(4), (2014).

7. On December 29, 2014, Plaintiff filed a claim for Declaratory Relief pursuant to Fla. Stat. 86.011.

8. Plaintiff requested judicial determination on the validity of Defendant’s action, specifically, if the Defendant was permitted to challenge Plaintiff’s EMC designation through independent medical examination or peer review pursuant to Fla. Stat. 627.736.

9. Defendant filed a responsive pleading to Plaintiff’s declaratory action on January 26, 2015.

10. Defendant included in its responsive pleading an affirmative defense which stated:

Pursuant to Florida Statute 627.736, personal injury protection insurance benefits were limited to a maximum of $2,500 for treatment to an injury or injuries related to a non-emergency medical condition. Insured/Claimant was not diagnosed with an emergency medical condition and therefore, his/her PIP benefits were limited to $2500. Pursuant to section 627.736(1)(a)(4), Florida Statutes (2013), Defendant has paid the full amount available under the policy and allowed by the aforementioned statutory section. Thus, no further medical benefits are payable.

11. Pursuant to that affirmative defense, Plaintiff has filed its Motion for Final Summary Judgment as to Defendant’s Affirmative Defense #7.

12. Plaintiff’s argues, in its motion, that 627.736(1)(a)(4) does not permit Defendant from challenging the diagnosis of Dr. Tamea in determining that the Plaintiff suffers from an EMC.

13. Plaintiff also argues that only physicians designated in 627.736(1)(a)(3) & (4) may determine whether a patient suffers from an EMC or not.

14. In addition, Plaintiff maintains that Fla. Stat. 627.736(7) does not permit the insurer to review the veracity of such a diagnosis.

15. Defendant maintains that Fla. Stat. 627.736 require all diagnoses and all medical treatment related to those diagnoses to be reasonable, related and necessary pursuant to Fla. Stat. 627.736(1)(a).

16. Furthermore, Defendant has the right to challenge the reasonable, relatedness and necessity of those diagnoses at any time pursuant to Fla. Stat. 627.736(4)(b)(6), (6) and (7)(a).

17. In support of its argument, Defendant refers this court to the definition of “emergency medical condition,” which states as follows:

A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

i. Serious jeopardy to patient health, including a pregnant woman or fetus.

ii. Serious impairment to bodily functions.

iii. Serious dysfunction of any bodily organ or part. . . .

18. Defendant maintains that as a medical condition of an injured person covered by PIP benefits that are material to a future claim for additional PIP benefits, the Defendant is entitled, under Section 7, to challenge the reasonableness and necessity of the EMC diagnosis in this matter.

19. Defendant further argues that challenging Plaintiff’s EMC diagnosis is necessary because an EMC diagnosis is only present in the event that the insured actually suffered an injury that resulted in serious jeopardy to patient health, serious impairment to bodily functions or serious dysfunction of a bodily organ or part.

20. Moreover, the ability of the insurer to challenge the reasonableness and necessity of medical treatment is the only way to ensure that the insured’s PIP benefits are only being used for reasonable, related and necessary medical treatment.

21. Having heard the arguments of both parties, this Court believes that in reading the provisions of Fla. Stat. 627.736 as a whole, the essence of Fla. Stat. 627.736 requires that all diagnoses and all medical treatment associated with same to be reasonable, related and necessary.

22. As such, Defendant has the right to challenge the diagnosis from a physician that has a possible financial stake in the determination of whether an insured suffers from an emergency medical condition or not.

23. This Court is persuaded by Defendant’s argument that Fla. Stat. 627.736(7) permits the review of a physicians’ diagnosis of an EMC.

24. EMC by its definition is a medical condition of the insured that could affect the coverage of future PIP benefits. Fla. Stat. 627.736(7) permits an insurer to conduct an independent medical examination, and by extension a peer review, specifically under these circumstances.

25. Furthermore, this Court cannot find any specific language in the statute that refutes Defendant’s ability to review Plaintiff’s EMC diagnosis under Section 7.

26. However, this Court does not agree with Defendant’s position that an EMC diagnosis can only be present in the event that an insured actually suffered an injury that resulted in serious jeopardy to patient health, serious impairment to bodily functions or serious dysfunction of a bodily organ or part.

27. The threshold on determining if an EMC was present is if the physician reasonably expected, at the time the diagnosis was rendered, that the insured could suffer from one or more of the enumerated conditions; however, this Court is not addressing the answer to that question at this time.

Accordingly, it is hereby,

ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment as to Defendant’s Affirmative Defense #7 is hereby DENIED.