24 Fla. L. Weekly Supp. 546a

Online Reference: FLWSUPP 2407FREEInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed medical bills out of order by applying deductible to bill from emergency medical provider, which was sixth bill received, instead of applying deductible to first bill received — Standing — Assignment — Insurer has waived any right to contest provider’s standing based on provider’s failure to attach assignment to demand letter where insurer did not apprise provider of deficiency when it received bill and subsequent demand letter, but instead applied bill to deductible and made reduced payment on remaining balance — Provider has standing as real party in interest where provider was required by law to treat insured, insured has not made claim for provider’s services, and insurer issued reduced payment directly to provider — As member of class of persons that legislature intended to protect by enacting section 627.736(4)(c) requirement that PIP insurers reserve benefits for emergency service providers, provider has standing to enforce that statute

EMERGENCY PHYSICIANS, Inc. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Florence Freeman, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015-21149-CONS. September 9, 2016. Shirley A. Green, Judge. Counsel: William S. England, Bradford Cederberg, P.A., Orlando, for Plaintiff. John E. Eckard, II, Orlando, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONSFOR FINAL SUMMARY JUDGMENT ANDDENYING DEFENDANT’S MOTIONS FORFINAL SUMMARY JUDGMENT

THIS MATTER having come before this Honorable Court on competing Motions for Summary Judgment and this Honorable Court having heard arguments of counsel on August 15, 2016 and being otherwise fully advised in the premises, states as follows:

I. FACTS

This is a claim for Personal Injury Protection benefits (hereinafter “PIP”) arising out of a motor vehicle accident that occurred on or about December 23, 2014. The Plaintiff in this matter is EMERGENCY PHYSICIANS, Inc. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Florence Freeman (hereinafter “Plaintiff’). At all times material to the subject cause of action, the assignor, Florence Freeman was covered under a policy of automobile insurance by the Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”) which provided PIP coverage for injuries the Patient sustained in the above-referenced accident. The policy contained a $250.00 deductible.

There is no dispute the Plaintiff are physicians licensed under chapters 458 or 459, Florida Statutes, or that they provided emergency services and care as defined in s. 395.002(9) and otherwise meet the requirements of Fla. Stat. §627.736(4)(c). The Plaintiff treated the Patient on December 23, 2014 in the emergency department of Baptist Medical Center following the above referenced accident.

The chronological order of Defendant’s receipt of the medical bills for the services rendered to patient as a result of the December 23, 2014 loss at issue is undisputed. The first two medical bills received by Defendant under Ms. Freeman’s claim for PIP benefits were from Dr. Mori Bean, totaling $92.00, and were received on 1/7/2015 (19 days prior to receipt of Plaintiff’s bill). Dr. Bean’s bills were allowed at an amount of $92.00 by Defendant, applied the alleged $250.00 deductible at 100% of the billed amount.

The third medical bill received by Defendant under Ms. Freeman’s claim for PIP benefits was from City of Jacksonville Fire and Rescue for date of service 12/23/2015. The charge for the fire and rescue services was $815.00. The bill was received by Defendant on 1/9/2015 (13 days prior to receipt of Plaintiff’s bill). The fire and rescue bill was allowed at an amount of $815.00 by Defendant, and NOT applied to alleged $250.00 deductible. Instead, the fire and rescue bill was later paid with $2.72 of interest.

The fourth medical bill received by Defendant under Ms. Freeman’s claim for PIP benefits was from Dr. Fady El-Bahri, totaling $780, and was received on 1/12/2015 (10 days prior to receipt of Plaintiff’s bill). The bill from Dr. Fady El-Bahri was allowed by Defendant, and NOT applied to alleged $250.00 deductible. Instead, the bill from Dr. Fady El-Bahri was later paid in the amount of $558.44.

The fifth medical bill received by Defendant under Ms. Freeman’s claim for PIP benefits was from Baptist Medical Center, totaling $1796.00, and was received on 1/12/2015 (10 days prior to receipt of Plaintiff’s bill). The bill from Baptist Medical Center was allowed by Defendant at 75% of the charged amount ($1347.00), and NOT applied to alleged $250.00 deductible. Instead, the bill from Baptist Medical Center was later paid with $11.56 of interest.

Even though the five (5) other bills referenced above were received by the Defendant prior to Defendant’s receipt of Plaintiff’s bill, the Defendant allowed/approved the full amount of Plaintiff’s charge ($650.00) but then applied the full amount of the remaining alleged deductible ($250.00) to Plaintiff’s bill resulting in a only a partial payment of $393.60 for Plaintiff’s bill. Had Defendant applied the first five bills received to the deductible on a first in first out basis, Plaintiff’s bill would have been paid at 80% of the amount charged, after the deductible was satisfied. Plaintiff, through its counsel, sent a pre-suit demand to Defendant seeking proper payment, accrued interest, penalty and the costs of certified mailing. Defendant responded to Plaintiff’s demand letter advising that “no additional payment is due at this time” and thereafter Plaintiff filed this lawsuit.

There is no dispute that the treatment rendered to the patient was reasonable, related to the accident and medically necessary. There is no dispute that the charges submitted by the medical providers were reasonable in amount.

II. ISSUES TO BE DETERMINED BY THE COURT

The issues presented by the parties for determination by this Court on competing motions for final summary judgment are as follows: (A) whether Defendant improperly processed medical bills by applying a PIP deductible to the medical bills out of order, in derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739, and (B) whether Plaintiff has standing to maintain the instant lawsuit seeking to enforce section 4(c) of the PIP statute and PIP benefits under the policy of insurance.

III. ANALYSIS AND RULING

A. Defendant Improperly Processed Medical Bills by Applying the PIP Deductible Out of Order to Otherwise Compensable Bills in Derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739.

Defendant argues that despite the fact the hospital bill was received first, the Plaintiff’s medical bill was one of the “first compensable bills” it received and therefore it goes to the front of the line for processing, citing to Fla. Stat. §627.736(4)(c)(2015). Fla. Stat. §627.736(4)(c)(2015) makes no reference to the term “first compensable bill.” Plaintiff argues that the “first compensable bill” received by the Defendant was the Baptist Hospital bill and that Florida law currently dictates that bills are to be applied to the deductible “in the order they are received.” Mercury Ins. Co. of Florida v. Emergency Physicians of Central Florida, 182 So. 3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a].

Additionally, Fla. Stat. §627.736(4) states, “[b]enefits due from an insurer . . . are due and payable as loss accrues upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued. . . . . (emphasis added),” Defendant received reasonable proof of a covered loss (via the five medical bills received prior to Plaintiff’s) and the amount of expenses incurred for same prior to the Defendant receiving Plaintiff’s bill. If Defendant applied the first five bills received to the deductible on a first in first out basis, Plaintiff’s bill would have been paid at 80% of the amount charged, after the deductible was satisfied. As stated by Courts of this State, “those medical bills which were received first, are to be applied to the deductible when received.” Dr. Garrett R. Weinstein, D.C., P.A. a/a/o Devonte St. Louis v. United Auto Ins. Co., 18 Fla. L. Weekly Supp. 480b (Fla. 17th Jud. Cir. Broward Co. 2011). Additionally, Defendant’s own Notification of Personal Injury Protection Benefits to the insured in this case advised that bills would be processed as the loss accrues and reasonable proof of the loss and the expenses are provided.

This matter is not one where the Plaintiff is attempting to avoid the deductible by alleging that Fla. Stat. 627.736(4)(c) prohibits application of a deductible to their claim. See Mercury Ins. Co. of Florida. Instead, Plaintiff argues that they have been damaged as a result of Defendant’s failure to abide by Fla. Stat. §627.736, Fla. Stat. §627.739 and Mercury Ins. Co. of Florida, wherein Defendant failed to apply the policy deductible to claims in the order of their receipt.

The undisputed facts establish that Plaintiff’s medical bill was not the first compensable bill received. Testimony (as well as the business records of the Defendant attached to the deposition of Defendant’s Corporate Representative) established that Defendant first received five other bills that Defendant found to be compensable as evidenced by the fact that Defendant applied two of the bills to the insured’s deductible and paid three of the bills with interest that was calculated as of the date the bills were received. Plaintiff’s medical bill was the sixth bill received by Defendant, yet Plaintiff’s bill was applied to the $250.00 deductible first. Defendant should have applied the deductible to first compensable bills received by Defendant and upon applying the deductible to the bills in the order received, PIP benefits would be payable and Plaintiff should have received 80% of $650.00 as payment from the Patient’s PIP benefits.

B. Plaintiff has standing to maintain the instant lawsuit seeking PIP benefits

With respect to the issue of standing, the Plaintiff asserts that it unequivocally has standing based in equity; as the real party in interest; and on the basis of a direct statutory cause of action. The Plaintiff further asserts that the Defendant, by processing the Plaintiff’s bill without objection, making payment directly to the Plaintiff in this matter, and by failing to raise it in response to the pre-suit demand letter, has waived the right to rely on an argument that the Plaintiff did not attach a written assignment of benefits to the pre-suit demand letter. Further, the Plaintiff argues that the Emergency Medical Treatment and Labor Act, 42 U.S.C.A §1395dd (hereinafter “EMTALA”) and the Florida Access to Emergency Services and Care Law, Fla. Stat. §395.1041 (hereinafter “FAEC”) require emergency room physicians to evaluate and treat every single patient that presents to the emergency room, expressly prohibiting the conditioning of treatment on a patient signing an assignment or other financial responsibility forms — thus negating any legal consideration and rendering any such assignment a nullity. Further, the Plaintiff argues that as a result of the Supremacy Clause of the United States Constitution EMTALA would expressly and impliedly preempt any provision of the Florida No-Fault Act that interfered with, or was contrary to, a Federal law. See Bailey v. Rocky Mountain Holdings, LLC. 136 F. Supp. 3d 1376 (2015)(holding that the fee schedule contained in the 2008 Florida No-Fault Act was preempted by federal law that governed an air ambulance’s charges).

The Defendant argues that a written assignment is required under Florida law and failure to include that with the pre-suit demand is fatal to the Plaintiff’s cause of action. Without a written assignment, Defendant argues an emergency room physician could never sue a PIP insurer and could never satisfy the demand letter condition precedent.

(1) Defendant has Waived Any Argument Regarding the Plaintiff’s Failure to Attach a Written Assignment to the Pre-suit Demand Letter

Defendant has waived the right to contest the Plaintiff’s failure to attach a written assignment to the pre-suit demand letter based on their conduct in this matter. Defendant was initially presented with a medical bill from the Plaintiff which sought reimbursement for PIP benefits. Defendant did not deny the bill, ask for further documentation related to standing or a written assignment, nor did they raise any other purported claim defect. The Defendant accepted the services as related, medically necessary and reasonable in amount charged (as evidenced by the explanation of reimbursement), allowed the entire amount charged by Plaintiff, and applied the Plaintiff’s charges in full toward the policy deductible. Prior to the lawsuit being filed the Defendant received a pre-suit demand letter from the Plaintiff that sought additional PIP benefits. Defendant had two opportunities to apprise the Plaintiff of the alleged deficiencies in its claim submission and yet elected to stay silent. Defendant’s silence results in a waiver of claim defects once litigation commenced. See generally, Florida Medical & Injury v. Progressive Express Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] (“in the insurer fails to specify the defect in the form so that it can be rectified . . . it will be deemed to have waived its objection to payment. . . . Once the insurer pays, it will not be heard to refuse payment because of a defect in form”). Digital Medical Diagnostics v. Allstate Ins. Co. Case No. 07-028 AP (Dade County Circuit Appellate 2008) [15 Fla. L. Weekly Supp. 1147b], Tampa Bay Imaging LLC v. Mercury Indemnity Co. of America. Case No. 13-000083 AP-88-3 (Pinellas County Circuit Appellate, 2014) [22 Fla. L. Weekly Supp. 504a].

The legal principle of “standing” is not the same thing as asserting a failure to attach a written assignment to a demand letter. Article I, Section 21 of Florida’s Constitution states: “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” In Psychiatric Assocs. v. Seigel, 610 So. 2d 419 (Fla. 1992), the Florida Supreme Court construed Article I, Section 21 of the Florida Constitution and held that the right to go to court to resolve our disputes is one of our fundamental rights. In Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001) [26 Fla. L. Weekly S229a] the Court found “[t]he right to access is specifically mentioned in Florida Constitution. See Art. 1, §21 Fla. Const. Therefore, it deserves more protection than those rights found only by implication. Standing is that sufficient interest in the outcome of litigation which will warrant the court’s entertaining it. Gen. Dev. Corp. v. Kirk, 251 So. 2d 284 (Fla. 2d DCA 1971). Under Florida law standing can be established in a multitude of ways and the Plaintiff has alleged and persuasively argued multiple basis for standing.

(2) Plaintiff’s Complaint Properly Alleges Standing to Sue

The Plaintiff’s Complaint in this matter alleges multiple basis for standing to sue and the legal standards for each allegation are supported by Florida law. It is important to note that assignments may be express or implied by the circumstances. Tunno v. Robert, 16 Fla. 738 (Fla. 1878). An assignment may be partly in writing, partly parole or it may be by a showing of circumstances in which the debtor is justified in making payment, regardless of whether there is anything in writing or parole between the assignor and assignee. Magnum v. Susser, 764 So. 2d 653 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D1216a]. Here, Defendant received a bill from the Plaintiff, not the patient, and issued its payment decision/reasoning (Explanation of Benefits) directly to the Plaintiff for the services that the Plaintiff was compelled to provide under Federal and State law.

Assignment may be express or implied by the circumstances. See generally, Tunno and Magnum. Additionally, Florida common law has long recognized equitable assignments. Sammis v. L’ Engle, 19 Fla. 800, 803-804 (Fla. 1883); All Ways Reliable Bldg. v. Moore, 261 So. 2d 131 (Fla. 1972). Courts in Florida liberally construe conduct of parties to a contract so as to find an assignment when equity requires. Protection House, Inc. v. Daverman and Associates, 167 So. 2d 65 (Fla. 3d DCA 1964). Additionally, the PIP statute uses the word “written” close to twenty times in conjunction with words like “notice,” “form,” “notification,” “report,” “request,” and “statement,” but the phrase “written assignment” does not appear anywhere in the PIP statute. When the legislature has used a term in one section of a statute but has omitted it in another section of the same statute, courts will not imply the term where it has been excluded by the Legislature. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995) [20 Fla. L. Weekly S184a]. As such, the common law is relied upon to fill in any inevitable statutory gaps related to equitable assignments. Dove v. McCormick, 698 So. 2d 585 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D1870a].

The Florida Supreme Court has stated “formal requisites of such an assignment are not prescribed by statute and may be accomplished by parol, by instrument in writing or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and an acceptance of it.” Boulevard Nat’l Bank of Miami v. Air Metal Indus. Inc., 176 So. 2d 94 (Fla. 1965). Under Federal and State law the Plaintiff was required to treat the patient, Defendant received a claim for this treatment only from the Plaintiff, Defendant accepted that treatment as covered under the PIP provisions of the policy of insurance and Defendant issued its Explanation of Benefits to Plaintiff directly for that treatment. Only after being sued in this case did the Defendant attempt to claim standing as a defense to payments. There is no record evidence before this Court that the insured, Ms. Ball, made a demand for these benefits to be paid to her, nor did the insured file suit seeking to recover those benefits paid by Defendant to Plaintiff, or those benefits which the Plaintiff is seeking to recover from the Defendant in this suit. Plaintiff is the real party in interest in this matter. Standing encompasses not only the sufficient stake definition, but an equally important requirement that the claim be brought by or on behalf of one who is recognized in the law as the real party in interest. Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178 (Fla. 3d DCA 1985). Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing. Holyoke Mutual Ins. Co. v. Concrete Equipment, Inc., 394 So. 2d 193 (Fla. 3d DCA 1981). The Plaintiff has legal standing to bring this cause of action.

This Court would be remiss to ignore the Plaintiff’s argument regarding EMTALA and FAEC and their effect on an emergency room physician’s right to condition treatment on a patient signing an assignment of benefits. Plaintiff’s position and argument claiming standing in conjunction with the mandatory requirements imposed by EMATALA and FAEC is well-reasoned. The enactment of EMTALA and FAEC afforded medical screening and stabilization to every single patient that presents to an emergency room and requests care. The enactment also created stern penalties for emergency room physicians who failed to comply with the legislative mandates. Gatewood v. Washington Healthcare Corp., 290 U.S. App. D.C. 31, 933 F. 2d 1037 (D.C. Cir. 1991). Essentially EMATALA and FAEC removed any “arms-length” transaction between the patient seeking emergency room care and the professional providing the emergency room care because emergency room physicians are required to treat regardless of a patient’s ability to pay and are prohibited from conditioning treatment on a patient signing an assignment of benefits. Taken one step further, the interaction between patient and provider is similar to a contract of adhesion i.e. a contract with “take it or leave it” terms. However, an emergency room physician, like the Plaintiff, has no ability to “leave-it” because refusing to treat or conditioning treatment on a patient signing an assignment of benefits would be a violation of Federal and State laws. Numerous state laws have since followed to assist emergency room and emergency room physicians with the effects of EMTALA and FAEC. These protections can be found in statutes such as Workers Compensation, HMO, Medicaid, Birth Related Neurological Injury Compensation Plan (“NICA”), the Good Samaritan Act, and Fla. Stat. §627.736(4)(c). The relevant statutory protection in this matter, Fla. Stat. §627.736(4)(c), was enacted by the legislature in 2007 and became effective January 1, 2008. Fla. Stat. §627.736(4)(c) requires an insurer to create a MANDATORY reserve of PIP benefits in the amount of $5,000, and those reserved benefits “may be used only to pay” medical bills received from physicians who provide emergency services and care and whose claims are received within thirty (30) days from the date the insurer was placed on notice of the accident. Furthermore, in the instant matter, the insurer elected to place this statutory protection language directly into the contract of insurance between the insured (patient) and insurer.

Still further, the Plaintiff in this case timely submitted a claim that qualified under Fla. Stat. §627.736(4)(c), which states, in part, that benefits “may be used only to pay” claim from emergency room providers and providers of in patient hospital care. Under Florida law parties have the right to maintain a private cause of action as the persons the legislature intended to protect by the enactment of a particular statute. Moyant v. Beattie, 561 So. 2d 1319 (Fla. 4th DCA 1990). Subsection 4c was enacted with a clear intent and objective to protect emergency room physicians, and payment under this statutory provision is required to be made only to the emergency room physicians. Courts have routinely held that emergency room physicians have standing, pursuant to an insurance statute and/or contract, to purse a lawsuit directly against the insurer responsible for reimbursing the emergency provider. See generally, Merkle v. Health Options, Inc., 940 So. 2d 1190 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2579a] (emergency room physician had standing to sue HMO for underpayments and alleged violations of Fla. Stat. §641.513(5)); Foundation Health v. Westside EKG Associates, 944 So. 2d 188 (Fla. 2006) [31 Fla. L. Weekly S669b](physician group providing emergency room EKGs had standing to file suit directly against HMO based on alleged violations of prompt pay provisions found in Fla. Stat. §641.3155); Adventist Health Sys./Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So. 2d 602 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1942a](emergency room provider had standing to sue insurer because a civil remedy existed, whether arising from Fla. Stat. §641.513(5)(b) or by common law breach of contract); Sterling Emergency Services of Florida, P.A. (a/a/o Julia Francis) v. Star Casualty Ins. Co., Case No. 13-010245 CONO 73 (County Court, 17th Jud. Cir. Broward County, Judge Steven P. DeLuca) Nov. 10, 2014)(emergency room physician had standing to file suit to enforce Fla. Stat. §627.736(4)(c) directly against PIP insurer); and Calusa Emergency Physicians a/a/o Jean Sherman v. Geico Indemnity Co., Case No. 14-7408 CONO 70 (County Court, 17th Jud. Cir. Broward County, Judge John D. Fry, January 8, 2016)(emergency room physician had standing to file suit to enforce Fla. Stat. §627.736(4)(c) directly against PIP insurer). The legislature clearly intended to protect emergency room physicians, like the Plaintiff, by the enactment of Fla. Stat. §627.736(4)(e), and as the class of persons intended to be protected they have standing to enforce it.

IV. CONCLUSION

The Court finds that Defendant should have processed the bills, and applied the PIP deductible to the bills, in the order received. By failing to do so, the Plaintiff has been damaged in the amount of $126.40, plus interest.

Additionally, Defendant waived the right to assert any defects in the claim submitted by the Plaintiff or alleged defects in the pre-suit demand letter when it failed to give any notice to Plaintiff regarding alleged deficiencies in those forms. Instead of providing notice to the Plaintiff the Defendant attempted to play a game of “gotcha litigation,” Appellate courts in this state have disallowed such tactics. See Heimer v. Travelers Ins. Co., 400 So. 2d 771 (Fla. 3d DCA 1981). Additionally, the legal premise of “standing” (i.e. a party’s ability to seek redress before a Court of competent jurisdiction) is a separate and distinct determination regardless of claims forms submitted. This Court finds the Plaintiff has standing to maintain the pending cause of action given the laws on equitable assignment, real party in interest and as the entity the statute sought to protect.

If this Court were to adopt the Defendant’s argument regarding standing, then it would have to turn a blind eye to the Supremacy Clause, which requires that state legislation be preempted by federal statute when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the federal regulation. Menefee v. State, 980 So. 2d 569 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1158a]. Defendant attempts to use the PIP statute, as well as EMTALA and FAEC, as a sword and a shield, but those statutory enactments were not intended to be used as a weapon against an emergency room physician’s ability to file suit for compensation while protecting insurers from lawsuits brought by emergency room physicians.

The Court finds that no genuine issues of material facts remain. The Court finds that all issues have been disposed of, including but not limited to, any and all issues raised by the parties in the pleadings. Upon competing motions for final summary judgment, the Court finds Plaintiff is entitled to Final Summary Judgment as a matter of law. The Plaintiff is entitled to PIP benefits from the policy of insurance in the amount of $126.40 plus interest.

IT IS HEREBY ORDERED AND ADJUDGED that:

Plaintiff’s Motions for Final Summary Judgment are hereby GRANTED.

Defendant’s Motions for Final Summary Judgment are hereby DENIED.

Final Judgment is hereby GRANTED in favor of Plaintiff, EMERGENCY PHYSICIANS, Inc. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Florence Freeman wherein Plaintiff shall recover from Defendant, USAA CASUALTY INSURANCE COMPANY, the sum of $126.40 plus 4.75% pre-judgment interest in the amount of $9.69 for a total sum of $136.09 for which sum let execution issue.* The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.

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*Post judgment interest of 4.75% per annum shall accrue on this judgment pursuant to Fla. Stat. §55.03.