27 Fla. L. Weekly Supp. 544a
Online Reference: FLWSUPP 2706RAFFInsurance — Personal injury protection — Coverage — Medical expenses — Initial services and care by qualified medical professional — Where advanced registered nurse practitioner and supervising physician who provided initial services to insured failed to file required protocol of supervision with Board of Medicine, medical provider is not entitled to PIP benefits for initial care and services provided by ARNP — Where there was no referral by physician for follow-up services by ARNP, insurer is not required to provide coverage for those services — Affidavit filed in opposition to insurer’s motion for summary judgment by registered chiropractic physician’s assistant who is supervised by physician and who also provided services to insured on initial date of service is sufficient to preclude summary judgment as to services that affiant provided
SUNSHINE REHAB AND MEDICAL INC., Jessica Raffo, Plaintiff(s), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2014-002140-CC-21, Section: HI 01. July 18, 2019. Milena Abreu, Judge. Counsel: Richard Patino, The Patino Law Firm, Hialeah, for Plaintiff. Melissa McDavitt, Conroy Simberg, West Palm Beach, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PARTDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on June 27, 2019 on Defendant’s Motion for Final Summary Judgment and Motion to Strike the Affidavit of Kirenia Perez, the Court, after a review of the case history, pleadings, motions, affidavits, relevant case law and applicable Florida Statutes and arguments of counsel, the Court hereby makes the following findings:
CASE HISTORY:
1. This is a PIP action for a policy of insurance issued by the Defendant to the insured, Jessica Raffo (Ms. Raffo/insured) with coverage originating on August 4, 2011.
2. Ms. Raffo was involved in a car accident on or about December 16, 2013.
3. Ms. Raffo made an initial medical service visit to the Plaintiff, Sunshine Rehab on December 27, 2013.
4. Following Ms. Raffo’s initial visit, she continued follow up services with Advanced Registered Nurse Practitioner, Ana Maria Penenori-Montoto.
5. Plaintiff filed the instant law suit to recover personal injury protection benefits as an assignee of Ms. Raffo.
6. On or about September 24, 2015, Defendant filed its Motion for Final Summary Judgment based on Ms. Raffo’s failure to comply with Florida Statute and the subject insurance policy with the Defendant.
ANALYSIS:
Florida Statute requires that an insured seek “initial 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 in a hospital or in a facility that owns or is wholly owned by a hospital. Initial services and care may also be provided by a person or entity licensed under part III of chapter 401 which provides emergency transportation and treatment.”
Defendant asserts that because Ms. Raffo did not receive “initial services and care” within 14 days by a qualified medical professional that Ms. Raffo and Plaintiff, Sunshine Rehab failed to comply with Florida Statute 627.736(1)(a) and therefore, no benefits were due or owing to Plaintiff.
Specifically, Defendant asserts that because the ARN and the Doctor of Sunshine Rehab failed to meet the reporting requirements of Nurse Practitioners and Supervising Physicians, under Florida statutes, 464.012 and 458.348 (a)(4), the requirements of 627.736(1)(a) failed.Reporting Requirements of Nurse Practitionersand Supervising Physicians
Prior to June 23, 2017, the Board of Nursing was required to receive, review, and maintain Advanced Registered Nurse Practitioner Protocols under Florida Statute 464.012. The 2013 version of Florida Statute Section 464.012(c) regulating the certification of Advanced Nurse Practitioners states the following:
An advanced registered nurse practitioner shall perform those functions authorized in this section within the framework of an established protocol that is filed with the board upon biennial license renewal and within 30 days after entering into a supervisory relationship with a physician or changes to the protocol. The board shall review the protocol to ensure compliance with applicable regulatory standards for protocols. The board shall refer to the department licensees submitting protocols that are not compliant with the regulatory standards for protocols.
To date, the Plaintiff has failed to produce any documentation to confirm the Board of Nursing received protocols between the Nurse Practitioner Ana Marie and Supervising Physician Lopez. The Department of Health as the umbrella agency of the Board of Nursing, does not evidence receipt of such protocol. See Certified Copy of Ana Marie Penenori Montoto file from Division of Medical Quality Assurance attached to Defendant’s Request for Judicial Notice previously filed with the Court.
The reporting requirements for physicians differ from Advanced Nurse Practitioners. The 2013 version of Florida Statute 458.348 (a)(4), Florida Statutes, States:
“the physician shall submit notice to the board. The notice shall contain a statement that includes the following: I, (name and professional license number of physician), of (address of physician) have hereby entered into a formal supervisory relationship, standing orders, or an established protocol with (number of persons) emergency medical technician(s), (number of persons) paramedic(s), or (number of persons) advanced registered nurse practitioners.
(b) Notice shall be filed within 30 days of entering into the relationship, orders or protocol. Notice also shall be provided within 30 days after the physician has terminated any such relationship, orders, or protocol”.
The Florida Department of The Department of Health as the umbrella agency of The Board of Medicine, also does not evidence receipt of such protocol. See Certified Copy of Ana Marie Penenori Montoto file from Division of Medical Quality Assurance attached to Defendant’s Request for Judicial Notice previously filed with the Court.
The Policy
The terms of the policy at issue in this Action are unambiguous and must be applied as written. The Florida No-Fault (“PIP”) provisions state, in pertinent part (Policy Form 9810A at 14-16):
Insuring Agreement
We will pay in accordance with the No-Fault Ace properly billed and documented reasonable charges for bodily injury to an insured, caused by an accident resulting from the ownership, maintenance, or use of a motor vehicle as follows:
1. Medical Expenses3
We will pay 80% of properly billed and documented medical expenses, but only if that insured receives initial services and care from a provider described in A. below within 14 days after the motor vehicle accident that caused bodily injury to that insured.
Limits
1. We will not pay any charge that the No-Fault Act does not require us to pay, the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.
The Florida Motor Vehicle No-Fault Law
The No-Fault Act (2013) contains the following pertinent provisions:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to . persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle as follows
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services if the individual receives initial services and care pursuant to subparagraph 1. within 14 days after the motor vehicle accident. The medical benefits provide reimbursement only for:
1 . Initial 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 in a hospital or facility that owns, or is wholly owned by, a hospital. Initial services and care may also be provided by a person or entity licensed under part III of chapter 401 which provides emergency transportation and treatment. (Underscore added.) (Emphasis added.)
2. Upon referral by a provider described in subparagraph ‘l r, follow up services and care consistent with the underlying medical diagnosis rendered pursuant to subparagraph 1. which may be provided, supervised, ordered, or prescribed only by a physician licensed under chapter 458 or chapter 459, a chiropractic physician licensed under chapter 460, a dentist licensed under chapter 466, or, to the extent permitted by applicable law and under the supervision of such physician, osteopathic physician, chiropractic physician, or dentist, by a physician assistant licensed under chapter 458 or chapter 459 or an advanced registered nurse practitioner licensed under chapter 464. (Emphasis added.)
Summary Judgment Standard
It is well settled that summary judgment is proper when there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Fla. Bar v. Greene, 926 so. 2d 1195 (Fla. 2006) [31 Fla. L. Weekly S171a]. “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter or law.” Fla. R. Civ. P. 1.510(c).
A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once competent evidence to support the motion is tendered, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979); Kolnick v. Fountainview Ass’n, Inc. # 2, 737 So.2d 1192 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1695b]. It is not enough for the opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D205d].
Insurance Interpretation Standard
Under Florida law, the bedrock principle of insurance law is that “insurance contracts are construed according to their plain meaning.” Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla. 2007) [32 Fla. L. Weekly S657a]. For this reason, a court’s inquiry always “begins with a review of the plain language of the insurance policy as bargained for by the parties.” Koikos v.Travelers Ins. Co, 849 So.2d 263, 266 (Fla. 2003) [28 Fla. L. Weekly S194a]. Stated simply, “if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fidelity and Guaranty, 913 So.2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a].
The policy unambiguously provides PIP medical benefits only if services and care are received within the initial 14 days after the motor vehicle accident by a licensed 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 in a hospital or in a facility that owns, or is wholly owned by, a hospital. Initial services and care may also be provided by a person or entity licensed under part III of chapter 401 which provides emergency transportation and treatment. Additionally, medical benefits are only available for treatment rendered more than 14 days after the accident only if services and care has been previously received within the initial 14 days by a qualifying medical professional as stated above.
It is undisputed that Ms. Raffo’s initial visit to Plaintiff was on December 27, 2013. One of the services on that date were provided by Advanced Registered Nurse Practitioner, Ana Maria Penenori-Montoro (Lic # ARNP9245740,), which does not comply with Florida Statute 627.736(1). The medical records and health insurance claims as part of Defendant’s Motion for Summary Judgment clearly demonstrate this point. More importantly, the Court takes judicial notice of the Florida Department of Health’s records of the ARN whereby neither the ARN or the supervising physician, Dr. Perez ever submit a notice to the Board of Medicine the required protocol of supervision for the ARN as required by the Statute; nor has the Court been provided with any record of a collaborative agreement between the ARN and the doctor as required by the Statute.
Further, it is undisputed that no referral was provided pursuant to Florida Statute 627.736(1)(a)(2). Therefore, all “follow up services and care” failed to comply with the plain language of the statute as it relates to the ARN. Accordingly, Defendant had no coverage obligation to Ms. Raffo and her assignee, Sunshine Rehab and Medical as it relates to the services of the ARN and Defendant’s Motion for Summary Judgment as it relates to the services by the ARN is granted.
The Court notes it did consider the affidavit of Kirenia Perez, filed by the Plaintiff in opposition to Defendant’s MSJ with regards to the issue of the ARN, despite Defendant’s request to strike Ms. Perez’ affidavit. The striking of a witness is an extreme sanction that should be used conservatively. In the instant case, the Defense could have requested an order to show cause and then a writ for the non-party’s alleged failure to attend several depositions and has not filed any such Motion. The Court also notes that the failure to attend a deposition is not a basis to strike an affidavit in opposition to a Motion for Summary Judgment, without more. Therefore, the Court has and did consider the affidavit of Kirenia Perez in consideration of its ruling granting Defendant’s Motion for Summary Judgment on the issue of the ARN’s treatment.
Affidavit of Adilia Jiron
The Court will next address the affidavit of Adilia Jiron filed by Plaintiff in opposition to Defendant’s Motion for summary judgment as this affidavit is an entirely different matter. According to the sworn affidavit, Ms. Jiron is a registered chiropractic physician’s assistant and the medical assistant to Dr. Lopez who is alleged to also have provided services to Ms. Raffo on the initial date of service, December 27, 2013. Said services seemingly qualify under Chapter 458 as Dr. Perez was the supervising physician. The Defense points out the affidavit is now filed 5 years after the date of initial service and is suspect. However, that is not an issue at summary judgment but a trial issue of material fact best suited for a thorough, fun and extensive cross-examination.
Therefore, the Defendant’s Motion for summary judgment on the issue of initial services provided by Ms. Jiron is denied.
