7 Fla. L. Weekly Supp. 509c
Insurance — Personal injury protection — Medical malpractice — Unnecessary diagnostic testing — Presuit notice requirements of Chapter 766 apply to third-party complaint filed by PIP carrier against treating physician alleging liability under section 766.111
BRUCE PLATZEK, M.D., Petitioner, vs. ALLSTATE INSURANCE COMPANY, Respondent. Circuit Court, 19th Judicial Circuit (Appellate) in and for St. Lucie County. Case No. 99-641 CA-23. L.T. No. 97-1300 CC09. Decision filed April 26. 2000. Petition for Writ of Certiorari from order of County Court, J. Midelis presiding. Counsel: Rafael E. Martinez, and Tyler S. McClay, McEwan Martinez Luff Dukes & Ruffier, P.A., Orlando, for Petitioner. John P. Daly, and Joseph H. Shaughnessy, Rissman Weisberg Barrett Hurt Donahue & McLain, P.A., Orlando, for Respondent.
(BRYAN, B. L., Jr., J.) Joseph Nunes sued Allstate Insurance Company, his PIP carrier, for failing to pay medical bills incurred as a result of an automobile accident. Allstate answered and filed a third party complaint against BRUCE PLATZEK M.D Petitioner, the treating physician. Count I alleged that Dr. Platzek was liable under common law indemnity. Count II alleged that Dr. Platzek was liable under §766.111, Fla. Stat. (1995). Dr. Platzek filed a petition for writ of certiorari seeking review of a non-final Order entered by the County Court denying his motion to dismiss.
Count II, the count at issue, is based on §766.111, Fla. Stat. (1995). Dr. Platzek is alleged to have ordered unnecessary medical tests. Dr. Platzek moved to dismiss Count II based upon Allstate’s failure to serve him with a Notice of Intent to initiate litigation. Dr. Platzek concedes Allstate’s entitlement to bring the suit (Reply Brief, p 3). The trial court ruled in part that compliance with the pre-suit notice requirements of Chapter 766 was not required to bring a third party action pursuant to §766.111. That is the only issue before this Court.
If a patient sued or defended against his/her health care provider under this statute, the pre-suit screening requirement would apply. See O’Shea v. Phillips, 746 So.2d 1105 (Fla. 4th DCA 1999). That case applied the requirement to procedures for risk management. This case is also similar to Paulk v. National Medical Enterprises, Inc., 679 So.2d 1289 (Fla. 4th DCA 1996), which involved a claim that hospitals extended patients’ stays without medical necessity. Here the claim is unnecessary testing. Although sounding in fraud, it is “intertwined with the legitimate delivery of medical services.” O’Shea at 1108.
This determination being made, the second question is whether or not the requirement is eliminated because the claim is brought by the patient’s insurance carrier.
Allstate attempts to distinguish this claim from one brought by a patient by piggybacking §766.111 on §627.736, the basis for another type indemnification claim. The issue in this case under §766.111 relating to the necessity of tests is a medical issue. Whether the statute is additionally a “whistle blower” statute or whether complaints under subparagraph (3) trigger the requirement are not issues raised by the facts of this case.
If Allstate were not the patient’s insurer, it would have no standing to bring the third party complaint. Allstate cited no authority for the proposition that the pre-suit requirement applicable to the patient is eliminated when the claim is asserted by the patient’s carrier. Under the facts of this case, Allstate is required to comply with the pre-suit requirements of §766.111, Fla. Stat. (1995).
We therefore grant the writ of certiorari and the case is returned to the trial court for entry of an Order granting Dr. Platzek’s Motion to Dismiss Count II of the third party complaint for failure to follow the pre-suit requirements. (Hawley and Kanarek, JJ., concur.)
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