Volume 13

NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 615a

Insurance — Personal injury protection — Coverage — Medical expenses — Nerve conduction velocity test and electromyography procedure — Where statute allows charges for NCV testing done in conjunction with EMG procedure to be billed at rate not exceeding 200% of fee schedule of Medicare Part B when both procedures are performed and billed solely by appropriately licensed physician and for payment under lower workers’ compensation rates when NCV does not meet those requirements, medical provider’s use of medical and physician assistants to perform physical portions of NCV and EMG did not require that provider be paid only under lower rates — Restrictive interpretation of statute taken by insurer would prevent physician from putting skills to more effective utilization, thereby maximizing insured’s PIP benefits, and would undermine intent of legislature to encourage physicians to delegate healthcare and clinical tasks to medical or physician assistants

13 Fla. L. Weekly Supp. 625a

Insurance — Personal injury protection — Coverage — Medical expenses — Needle electromyography — Reasonable charge — Section 627.736 does not require insurer to pay for needle EMG pursuant to mandatory fee schedule — Partial summary judgment is granted in favor of medical provider as to balance of reduced bill for needle EMG — Record, including medical provider’s affidavit made from personal knowledge, establishes prima facie case for summary judgment — Affidavit of physician who performed peer review is improper and inadmissible due to fact that physician did not perform physical examination of insured, affidavit relies on hearsay and is conclusory, and affidavit refers to peer review not attached to affidavit — Affidavit of insurer’s litigation specialist indicates bill for needle EMG was reduced based on Medicare fee schedule, which is not federal or state medical fee schedule applicable to automobile and other insurance coverage that may be considered to determine reasonableness of charge pursuant to section 627.736(5)(a)

13 Fla. L. Weekly Supp. 1152a

Insurance — Personal injury protection — No abuse of discretion in denying insurer’s ore tenus motion for extension of time to file affidavit supporting peer review physician’s report in opposition to medical provider’s motion for summary judgment where motion for summary judgment was noticed six weeks before motion hearing, and insurer offered no explanation for failure to timely file affidavit — Even if timely filed and considered at motion hearing, affidavit would not have affected court’s decision to enter summary judgment in favor of provider where insured’s benefits were withdrawn by making of reduced payment prior to physician’s report having been obtained — Section 627.736(7)(a) requires written report as condition precedent to withdrawing, denying or reducing medical treatment — Argument that peer review report was not submitted to satisfy statutory condition precedent, but to create genuine issue of material fact as to charges, is inconsistent with report, which states that evaluation was conducted to determine which services were medically necessary, reasonable and related to accident and contained physician’s attestation that he met requirements of section 627.736(7)

13 Fla. L. Weekly Supp. 425a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review — Timeliness — Trial court erred in ruling that peer review submitted by insurer in opposition to motion for summary judgment was untimely — There is no requirement in Florida law that insurer file peer review within 30 days of date of notice of loss to contest reasonableness, relatedness or necessity of PIP claim — Further, while law requires that insurer obtain medical report prior to withdrawing benefits without consent of insured, it does not require medical report prior to denying benefits

13 Fla. L. Weekly Supp. 1234a

Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Medical provider/assignee may maintain cause of action against insurer for breach of contract for failure to furnish EOB — Damages are for jury to determine and may be nominal — Relief in form of specific performance of delivery of EOB would not require showing of damages

13 Fla. L. Weekly Supp. 716b

Insurance — Personal injury protection — Coverage — Medical expenses — Denial — Explanation of benefits — EOB stating that bill had been denied because documentation did not fit coding and advising of procedure for seeking reconsideration or recoding constitutes denial of bill, not discovery request that tolled time for payment — Payment made 55 days after receipt of bill was overdue payment for which interest is due

13 Fla. L. Weekly Supp. 129a

Insurance — Personal injury protection — Default — Abuse of discretion to enter default, deny motion to set aside default and enter final judgment without conducting hearing — On remand, trial court may address dilatory conduct of insurer’s counsel if after conducting hearing it finds sanctions short of default are appropriate

13 Fla. L. Weekly Supp. 124b

Insurance — Personal injury protection — Default — Error to enter default judgment where medical provider failed to serve insurer with prior notice of application for default — Order vacating default, entered after insurer filed notice of appeal, was without effect as appellate court had jurisdiction

13 Fla. L. Weekly Supp. 643b

Insurance — Personal injury protection — Default — Where insurer failed to file responsive pleading by deadline set by court and continued to fail to comply with order to file pleading despite clear notice of medical provider’s intention to seek default, provider is entitled to default

13 Fla. L. Weekly Supp. 1205b

Insurance — Personal injury protection — Coverage — Denial — Failure to obtain physician’s report — Where insurer failed to obtain physician’s report prior to denying payment, defense that bills were not reasonable or necessary is barred — Insurer’s definite and unconditional repudiation of contract discharged any further obligation for medical provider to attempt to comply with conditions precedent to recovery or cure alleged notice defects