26 Fla. L. Weekly Supp. 592a
Online Reference: FLWSUPP 2607MIRAInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where medical provider has shown that insurer may have exhausted policy limits by gratuitously paying for massage therapy services that were not prescribed by physician, and therefore were not lawfully rendered services, insurer’s motion for summary judgment based on exhaustion of policy limits is denied
VELO CHIRO FIZIK, INC. (a/a/o Rodolfo Miranda), Plaintiff, vs. VICTORIA SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-3328 SP 21. September 7, 2018. Don Cohn, Judge. Counsel: Nikolas Salles, Patino Law Firm, Hialeah, for Plaintiff.
ORDER DENYING DEFENDANTSMOTION FOR SUMMARY JUDGMENTRE: EXHAUSTION OF BENEFITS
In this matter a doctor’s office sued an insurance company to get paid personal injury protection benefits. The Defendant filed a motion for final summary judgment arguing that the benefits were exhausted. The insurance company filed the affidavit of its adjuster, who said the insurance company paid out the policy limits of $10,000.00 in total.
The Plaintiff, a licensed chiropractic physician’s office, evaluated the patient and prescribed therapy to the patient, Another provider, a licensed massage therapist, was supposed to perform the therapy prescribed.
The Plaintiff filed an affidavit from its prescribing physician that claimed the services the massage therapist did on February 14th and 15th, 2011 were not prescribed. The first prescription ordered two weeks of therapy on January 31, 2011, 4-5 times per week (up to 10 sessions). But the insurance company’s records showed that between January 31, 2011, and February 15, 2011, the massage therapist billed for 12 therapy sessions. The patient was not seen for re-evaluation until February 16th. The insurance company paid for these services, including the services on February 14 and 15th, 2011. Read in a light most favorable to the Plaintiff (which is required pursuant to Fla. R. Civ. P. 1.510), it seems that the services on February 14, 2011 and February 15, 2011 were not prescribed by a physician.
Back in 2011 (the applicable year) the PIP statute said “medical benefits shall provide reimbursement only for such services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided by any of the following persons or entities,” (e.s.) and then goes on to list several exceptions, including a hospital or ambulatory surgical center, an emergency service, an entity wholly owned by physicians, an entity owned by hospitals, or AHCA certified medical clinics with certain certificates and qualifications.
The Defendant’s records showed that the therapist was a licensed massage therapist, and nothing in the record suggests that the therapist company was either AHCA certified, a hospital, an emergency certified transport company, or owned by a physician. So, to qualify as valid medical benefits under a PIP policy, the therapy services needed to be prescribed.
To exhaust medical benefits, the Defendant must pay for valid medical benefits. Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 137 So.3d 1049 (Fla. 4th DCA, 2014) [39 Fla. L. Weekly D491a]. (“Once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, pending claim. . .”) But c.f. GEICO Indem. Co. v. Gables Ins. Recovery, Inc., 159 So.3d 151 (Fla. 3d DCA, 2014) [39 Fla. L. Weekly D2561a] (“every medical provider [the insurer] paid . . . was entitled to payment and all the claims paid were timely.”)
While the insurance company “remains free to pay providers for charges that are untimely or otherwise submitted in express contravention of the statute, such payments should not be considered a ‘payment’ under the PIP policy.” Coral Imaging Services v. Geico Indem. Ins., 955 So.2d 11 (Fla. 3d DCA, 2006) [31 Fla. L. Weekly D2478a]. Such payments are “must be characterized as ‘gratuitous,’ and should not be considered as having been made against the limits of the PIP policy.” The Court finds that the plaintiff has shown the possibility of a genuine issue of material fact, to wit: that the insurer in this case may have used some of the insured’s $10,000 to pay for services which were done without a physician’s orders, and that could be considered payment for an invalid claim.
The Defendant’s motion is therefore DENIED.
