6 Fla. L. Weekly Supp. 577a
Insurance — Personal injury protection — Insured claiming PIP benefits seeking to preclude orthopedic specialist from testifying on issues relating to the propriety of insurer’s termination of payments for chiropractic treatment — Physician is not prohibited from testifying concerning propriety of chiropractic treatment — Orthopedic specialist will be permitted to offer opinions on issue of whether amounts claimed would constitute reasonable expenses for necessary services within meaning of statute and on related issues
MARIAN FRANKS, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court of the 18th Judicial Circuit in and for Brevard County. Case No. 97-12195-CC-4. April 7, 1999. David E. Silverman, Judge.
ORDER
This cause coming on to be heard on the motion of Plaintiff, MARIAN FRANKS, to exclude and limit certain testimony styled, Plaintiff’s Motion to Strike Dr. Seig and to Limit the Testimony of Dr. Egan and the Court having reviewed the pleadings, other filings and the memoranda of law submitted by counsel and having been otherwise advised in the premises.
The Court hereby finds as a matter of fact and concludes as a matter of law, as follows:
Plaintiff, an insured claiming benefits under a personal injury protection policy of insurance, seeks to preclude Dr. Duane Seig, an orthopedic specialist, from testifying on issues relating to the propriety of the insurer’s termination of payments for chiropractic treatment.
Section 627.736(7)(a), Florida Statutes prohibits insurers from withdrawing payment except upon, “a report by a physician licensed under the same chapter as the treating physician,” whose treatment is sought to be withdrawn. Nothing in this Order should be construed to relieve the insurer of the obligation to comply with this provision and failure to establish compliance may limit or preclude defense to the action for benefits. See, United Automobile Insurance Company vs. Metalit Viles, 24 Fla.L.Weekly D14a (3rd District, December 17, 1998).
While being construed liberally in favor of the insured, Section 627.736(7)(a) has been held to erect a procedural requirement rather than an evidentiary limitation. Derius v. Allstate Indemnity Co., 23 Fla. L. Weekly D1383 (Fla. 4th DCA 1998) held that,
“The quoted language from section 627.736(7)(a) sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective. In this procedural hurdle, we do not discern a legislative intent to alter the burden of proof in a lawsuit for PIP benefits.”
There is no blanket preclusion in law that prohibits physicians from testifying as to the propriety of chiropractic treatment. Permitting such testimony in the context of a workers compensation claim, the Court in Clair v. Glades County Board of Commissioners, 649 So.2d 224 (Fla. 1995) adopted the following reasoning,
“A review of these statutory standards reveals that medical doctors and osteopathic physicians are qualified and licensed in the broadest manner. Their qualifications and licensure would appear to encompass those areas of practice allowable for podiatrists and chiropractors. The regulatory statutes do not, then, suggest an automatic disqualification of medical doctors to give testimony such as that relied on by the JCC in this case.”
Therefore, upon Dr. Seig being qualified as an expert or skilled witness, and to the extent such testimony may be relevant, within the meaning of Section 90.403, Florida Statutes,
It is hereby ORDERED and ADJUDGED, Dr. Seig will be permitted to offer opinions on the issue of whether the amounts claimed would constitute, “reasonable expenses for necessary. . . services,” within the meaning of Section 627.736(1)(a), Florida Statutes and related issues.
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