7 Fla. L. Weekly Supp. 151a
Insurance — Personal injury protection — Appeal from summary judgment for insurer holding that insured’s refusal to submit to independent medical examination unless insurer provided written assurances that insured’s right of privacy would be maintained by insurer was unreasonable based upon finding that insured does not have right of privacy regarding IME, pursuant to Section 455.667, Florida Statutes, and that, pursuant to Klipper v. Government Employees Ins. Co., insured did not have right to set additional conditions for IME — Reversible error to rely on Klipper to determine that, because insured did not have right to set additional conditions on IME, insured’s refusal to submit to IME was unreasonable — Although county court relied upon Section 455.667, Florida Statutes (1997), instead of Section 455.241, Florida Statutes, (1996), which was in effect at time PIP contract was executed, error harmless because relevant provision regarding confidentiality of patient records when examination is procured by third party are identical — Where insured gave insurer written authorization to obtain her medical records when she submitted her PIP application, but did not give authorization to obtain or discuss her medical condition or records to independent vendor that arranged and scheduled IME on behalf of insurer, summary judgment was based upon improper application of law because neither statute nor terms of insured’s policy gave insurer right to allow independent vendor to obtain insured’s medical records — Because summary judgment was based upon improper application of law, summary judgment for insurer must be reversed
TANEE COBB, Appellant, vs. U.S. SECURITY INSURANCE COMPANY, a/k/a U.S. SECURITY INSURANCE COMPANY, INC., Appellee. 4th Judicial Circuit in and for Duval County. Case No. 98-88-AP. Division CR-A. Filed October 7, 1999. Appeal of Duval County Court’s Order entering Summary Judgment in favor of Appellee. Counsel: Craig Gibbs, for Appellant. Marianne Lloyd, Laura A. Callison, of Hinshaw & Culbertson, for Appellee.
OPINION
This cause came to be heard upon the Notice of Appeal filed by Appellant Tanee Cobb, on September 25, 1998. Appellant seeks review of an Order rendered by the County Court entering Summary Judgment in favor of Appellee, U.S. Security Insurance Company, a.k.a. U.S. Security Insurance Company, Inc. This Court has jurisdiction over the instant Appeal pursuant to Florida Rule of Appellate Procedure 9.030(c)(1).
I. Background Facts and Procedural History
Appellant Tanee Cobb was involved in a motor vehicle accident in Jacksonville, Florida, on or about January 13, 1997, in which she sustained personal injuries. Appellee U.S. Security Insurance Company previously issued an insurance contract to Appellant which provided personal injury protection (PIP) benefits. The policy was in full force and effect on the date of Appellant’s automobile accident. Appellant provided Appellee a duly executed Application for Florida No Fault (PIP) Benefits on or about August 19, 1997.
As part of its normal business practice, Appellee retained Florida Medical Specialists, a third party vendor, to schedule independent medical examinations of PIP insured such as Appellant. Florida Medical Specialists is an independent company that arranges for and schedules independent medical examinations on behalf of both plaintiffs and defendants, including insurance companies. The typical process followed by Florida Medical Specialists requires physicians or chiropractors to contact Florida Medical Specialists after the completion of an independent medical examination (IME) by calling a specified telephone number and dictating his or her report to the medical transcriptionist of Florida Medical Specialists. After the initial draft is typed, the report is given to one of Florida Medical Specialists’ on-staff nurses who verifies that the report is complete, and that all questions of the party requesting the IME have been answered. The original report is then sent to the IME provider for signature. After Florida Medical Specialists receives the original report of the IME, it bills the requesting party, and pays the IME provider.
The independent medical provider is not advised of the identity of the party requesting the IME, and Florida Medical Specialists does not disseminate the examinee’s medical or to anyone except the independent medical provider, the provider’s staff, the party requesting the IME, and the examinee or the examinee’s attorney.
Florida Medical Specialists arranged for Appellant to visit a chiropractor on July 29, 1997 and August 21, 1997. Florida Medical Specialists also scheduled Appellant for an IME on August 5, 1997 and August 20, 1997. Appellant did not appear for any of the scheduled appointments.
Appellant, as part of her tendering the duly executed Application for Florida No Fault (PIP) Benefits to Appellee, gave written authorization for Appellee to obtain her medical history, condition, reports, and/or records. Appellant did not give her consent to, nor did she give written authorization for Florida Medical Specialists to obtain, acquire, discuss, nor review her medical history, records, condition, nor reports with regard to her No Fault (PIP) claim maintained with Appellee. Thus, Appellant refused to appear unless and until Appellee provided her with written assurances that her right of privacy, with respect to her medical history and condition would be maintained by Appellee, and that reports of the examining doctors would be sent only and directly to Appellee rather than being sent to Appellee by way of Florida Medical Specialists. Appellee refused to provide the assurances which Appellant demanded.
On February 18, 1998, Appellant filed an Amended Complaint against Appellee, alleging Breach of Contract and Failure to Comply with Section 627.736, Florida Statutes, relating to payment of PIP benefits within thirty (30) days of receiving the written notice. Appellee filed a Motion for Summary Judgment on March 4, 1998, arguing that Appellant’s unreasonable refusal to submit to the IME was a breach of the PIP insurance contract and consequently it was not liable for subsequent PIP benefits.
The County Court granted Appellee’s Motion for Summary Judgment on July 6, 1998. The court held that 1) Section 455.667, Florida Statutes, does not protect the medical records produced as a result of an IME; and 2) pursuant to Klipper v. Government Employees Ins. Co., 571 So.2d 26 (Fla. 2d DCA 1990), Appellant did not have the right to set additional conditions for an Independent Medical Examination. Thus, the County Court held that her refusal to submit to an IME was unreasonable under the circumstances in this case. Appellee filed a Motion for Entry of Final Summary Judgment on July 10, 1998. The court entered Summary Judgment in favor of Appellee on September 2, 1998. Appellant filed a Notice of Appeal on September 25, 1998.
II. Discussion
Notwithstanding the presumption of correctness which clothes the result below, this Court must view every possible inference in favor of the party against whom the summary judgment is granted. Smith v. Perry, 635 So.2d 1019 (Fla. 1st DCA 1994) (citing Williams v. Bevis, 509 So.2d 1304 (Fla. 1st DCA 1987)). If material issues of fact exist and the slightest doubt remains, or if summary judgment was based on an improper application of the law, summary judgment must be reversed. Perry, 635 So.2d at 1020.
The County Court granted Appellee’s Motion for Summary Final Judgment based upon a finding that Section 455.667(2)(k), Florida Statutes (1997), does not support Appellant’s claim of a right of privacy regarding an IME report, and pursuant to Klipper, 571 So.2d at 27, Appellant does not have the right to set additional conditions on an IME. Thus, the County Court concluded that her refusal to submit to an IME is unreasonable considering Appellant does not have a right to privacy regarding an IME report and that she does not have the right to set additional conditions on an IME.
Appellant refused to attend the IME unless Appellee provided to her written assurances that her right of privacy would be maintained by Appellee in that the examining doctors’ reports of their examinations would be sent directly to the Appellee and not sent to Appellee by way of Florida Medical Specialists. The County Court relied upon Klipper in holding that Appellant did not have a right to set additional conditions on an IME. In Klipper, the court held that the insured seeking PIP benefits was not entitled to have a court reporter present during the independent medical examination because, among other reasons not applicable here, “neither the statute nor the terms of Klipper’s policy give the insured the right to set additional conditions for the examination.” Id. at 27. The First District Court of Appeal, in Cimino v. U.S. Security Insurance Co., 715 So.2d 1092 (Fla. 1st DCA 1998) rejected Klipper in that it did not find Klipper persuasive. Thus, the Court finds reversible error in the County Court’s reliance on Klipper to determine that, because she could not set additional conditions on an IME, Appellant’s refusal to submit to IME was unreasonable.
Although the county court relied upon Section 455.667, Florida Statutes (1997), instead of Section 455.241, Florida Statutes (1996) (the Section that was in effect at the time the PIP contract was executed), the Court finds that this was harmless error because the relevant provisions regarding confidentiality of patients’ records when the examination is procured by a third party are identical. Both Sections provide that:
Such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization . . . to any person, firm, or corporation that has procured or furnished such examination or treatment with the patient’s consent.
§ 455.667(5)(a), Fla. Stat. (1997); § 455.241(1), Fla. Stat. (1996) (emphasis added). It is clear that Appellant gave Appellee written authorization to obtain her medical records when she submitted her PIP application. However, Appellant has not given written authorization to Florida Medical Specialist, the independent company that arranged and scheduled the IME on behalf of Appellee, to obtain or discuss Appellant’s medical condition or records. Therefore, the Court finds that summary judgment was based upon an improper application of the law because neither the statute nor the terms of Appellant’s policy gave Appellee the right to allow Florida Medical Specialist to obtain Appellant’s medical records.
III. Conclusion
The Court finds that the Summary Judgment entered by the County Court was based upon an improper application of the law. Thus, the Summary Judgment of the County Court must be reversed.
In view of the above, it is
ORDERED AND ADJUDGED that the County Court’s Order awarding Summary Judgment to Appellee is hereby REVERSED.
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