In the 2012 Legislative session, the Florida Legislature passed HB119, which will dramatically alter PIP payments and available benefits to their insureds and medical providers. As a practicing PIP Insurance Dispute Attorney, I am often asked by doctors of all specialties who have read and reviewed this law, what is the significance and requirements of the ‘Emergent Medical Condition’ diagnosis now required to receive a full $10,000.00. Here is how it works.
As of January 1, 2013, PIP will only pay $10,000.00 in benefits if you have been diagnosed with an ‘Emergent Medical Condition,’ by a Medical Doctor, Doctor of Osteopathic Medicine, Advanced Registered Nurse Practitioner or Dentist. If you do not have a diagnosis of an Emergent Medical Condition’ (“EMC”), the New law entitles you to only $2,500.00 in medical benefits.
What does this mean for consumers and for the good and hard-working medical providers who care and treat our injured? It means you better prepare for a legal fight with a PIP insurer company in each and every car accident case. Thus, for the providers treating and diagnosing Florida Motor Vehicle Accident Victims, a thorough understanding of this vague requirement and what we see as, and what the insurance company sees it as is required.
An “Emergent Medical Condition” is defined in the statute as a “medicalcondition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:(a) Serious jeopardy to patient health; (b) Serious impairment to bodily functions;or (c) Serious dysfunction of any bodily organ or part.”
What the heck does that mean? The answer, for now, appears to be “who knows.” My preliminary research indicates that the drafters of this bill modeled this language straight out of the Florida and Federal Emergency Room anti-dumping statutes. See EMTALA (http://www.emtala.com/faq.htm) and Section 395.002, Fla. Statutes. However, the bill does not mention these laws, and the same where never brought up two years of Legislative hearings on this matter.
I will bet that 100% of the time, when litigating this issue, the adverse insurance company is going to tell the court that the definition is clearly based off EMTALA. Why? Because they would love to have the courts simply follow the federal case law regarding EMTALA.
Under EMTALA federal case law, The courts identified symptoms manifesting an emergency medical condition, and found that they must not only have arisen rapidly, but more importantly, that they be short-lived. Medical conditions manifesting themselves by chronic symptoms are not considered an emergency medical condition. To determine whether a patient suffers from an emergency medical condition, the focus must be on the patient’s current condition and whether that condition satisfies the criteria. The key term is “acute,” which denotes that the symptoms manifesting an emergency medical condition must not only have arisen rapidly, but, more importantly, that they be short-lived. In other words, a medical condition manifesting itself by chronic symptoms is not an emergency medical condition, even though the absence of medical care might lead to one of the three adverse consequences listed the statute,”long-term” care was not contemplated by the statute.
You see why the insurance companies love EMTALA? Because under EMTALA, you never have an EMC where a condition is chronic. Thus, all the insurance company has to do to define the injury as “chronic” is to retain a radiologist to define the read as consistent with pre-existing degeneration in the spine, and thus chronic in nature. They do it in each and every bodily injury case. Why would they not do the same here?
The failure of the Legislature to even mention a single reference to EMTALA is significant though. A court is without power to rewrite or create Legislative history. This will be the epic failure of the insurer’s strategy. As bad as they want EMTALA, and as much as new PIP now looks like EMTALA, they can never have it as EMTALA, because the bill sponsors, proponents and other Legislators failed to ever establish it in passage of the bill.
That means that a court will have to deny summary judgment and it will be up to a jury to decide who to believe – The Insurance Company doctor, who is simply rubberstamping “No EMC” to everything, or you, the patient’s treating doctor, rendering care everyday.
I will take you, the treating physician, in that fight any day.
Knowledge Equals Power in Orlando Auto Accident Cases
P.S. – How do you Diagnose an EMC? Go back to Med School and do a true Differential Diagnosis. Even under the Insurance Company dream scenario (EMTALA Law) – it is not a definitive diagnosis – it is what was reasonable given the patient’s presenting symptoms at that time.
Thus why I recommend the true differential – Take the absolute worse and work back. Ever heard of slipped disc syndrome? In the differential? You bet!
P.P.S. – More advice and tips on this new and difficult law are available in my FREE New Book, “The New PIP.” We are also available to meet with you and discuss the impact of these new laws on your practice. Fill out the contact box and let me know how I can help you in your fight with the insurance industry today!