26 Fla. L. Weekly Supp. 413a
Online Reference: FLWSUPP 2605HANSInsurance — Personal injury protection — Independent medical examination — Physician who did not have own medical practice in years preceding IME but who performed temporary office coverage for other chiropractors for 20 days during that time was in “active practice” within meaning of statute requiring that IME physician be in active practice — Statute requires only that physician devote professional time to evaluation, diagnosis or treatment of patients, not that physician regularly or continuously treat patients — Motion to disqualify physician and strike IME is denied
COMPLETE FAMILY CHIROPRACTIC HEALTH CARE, a/a/o STACY HANSEN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CC-019669, Division M. July 2, 2018. Herbert M. Berkowitz, Judge. Counsel: Mike N. Koulianos, The Law Offices of Christopher P. Calkin, P.A., Tampa, for Plaintiff. Roy A. Kielich, Oxendine and Oxendine, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFYDOCTOR FRANK LANZISERA, D.C. AND STRIKE THEINDEPENDENT MEDICAL EXAMINATION REPORT
THIS CAUSE, having come before the Court May 30, 2018, on Plaintiff’s “Motion to Disqualify Doctor Frank Lanzisera, D.C. and Strike the Independent Medical Examination Report,” filed on April 16, 2018, and the Court having reviewed the file, heard argument of counsel, and being otherwise fully advised in the premises, finds as follows:
Complete Family Chiropractic Health Care (“Plaintiff’) has brought this breach of contract action against State Farm Mutual Automobile Company (“Defendant”) for Personal Injury Protection (“PIP”) benefits under an insurance policy providing PIP benefits to Stacy Hansen (“Insured”), pertaining to a motor vehicle accident which occurred on May 20, 2013. This case involves Defendant’s termination of chiropractic PIP benefits based upon an Independent Medical Examination performed by Dr. Frank Lansizera, D.C. on January 29, 2014.
Plaintiff argues that Dr. Lanzisera was not qualified to perform this Independent Medical Examination under Florida Statute § 627.736(7)(a) because he did not devote enough professional time to meet the definition of “active clinical practice” in the three years immediately preceding the Examination. Specifically, Dr. Lanzisera testified in his deposition that from approximately July, 2011 through November, 2012, he did not have his own chiropractic practice; rather, he performed temporary office coverage for other chiropractors sporadically during this time, for an estimated total of twenty days. In November, 2012, Dr. Lanzisera re-established his own full time chiropractic practice. Plaintiff contends that this maximum of twenty days of clinical practice from 2011 to November, 2012 is insufficient to meet the definition of “active” clinical practice, as he was not “regularly and continuously” evaluation patients. This court disagrees.
Florida Statute § 627.736(7)(a) (2013) provides that a physician preparing an Independent Medical Examination report must be in active practice, and defines “active practice” as follows:
Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program.
Contrary to Plaintiff’s assertion, Florida Statute § 627.736(7)(a) merely requires that the physician “devote[ ] professional time” to the evaluation, diagnosis, or treatment of patients “during” the three years immediately preceding the date of the Examination. The statute does not require that the physician “regularly” or “continuously” treat patients during this time period, only that he/she devotes professional time to treating patients at some point during this three year period. The legislature did not see fit to quantify how much time a physician must devote during this time period in order to meet the definition of being in “active practice.” As such, pursuant to the plain language of the statute, Dr. Lanzisera was qualified to perform the subject Independent Medical Examination, as it is undisputed that he devoted some time during the three years immediately preceding the Examination to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions. Accordingly, it is hereby
ORDERED AND ADJUDGED that:
1) Defendant’s Plaintiff’s “Motion to Disqualify Doctor Frank Lanzisera, D.C. and Strike the Independent Medical Examination Report” is DENIED.
