Articles Posted in New Florida PIP Law

car wreck accident south florida miami personal injury
I was hurt on a motorcycle am I entitled to PIP coverage? Considering that injuries to motorcycle riders in accidents are more likely to be of greater severity, this puts the rider at great risk of both financial and physical trauma in the event of a crash.  PIP is not available to motorcycle riders or passengers.

The driver of a car who is injured in a crash can sue for damages over and above the maximum on his PIP if medical bills exceed that amount. He may also sue for pain and suffering but only if the injury was considered permanent. This permanency threshold rule does not apply to motorcycle riders. The bike rider may seek compensation from the other driver’s insurance company without being required to pass any threshold.  PIP is not available in Florida even if the driver (or passenger) of the motorcycle has PIP coverage on another 4-wheel vehicle.

I was hurt while a passenger on a County/City Bus am I entitled to PIP coverage?  The term “motor vehicle” under which would be required to carry PIP (No-Fault Coverage) excludes from its definition buses and taxis used in mass transit.  Under this scenario no PIP would be available.  Medical bills incurred would be payable only through an individual or group health insurance policy or out-of-pocket by the injured party. Of course the threshold requirement in accident cases where PIP benefits are available is no longer an issue in these cases. What that means is there is no requirement that the Plaintiff sustain a permanent injury as defined in §627.737(2)(a-d) as described hereinbelow:

As South Florida car accident attorneys we know that herniated discs are a common injury resulting from vehicular collisions. Spinal discs act like pillows or cushions between the vertebrae of the spinal column. The spinal column is made up of the cervical (neck), thoracic (mid-back), and lumbar (lower back) regions. The actual discs are made of a gelatinous substance that may leak if sufficient trauma is exerted onto it. At times this leaking or extrusion may impact a nerve root. This pressure on the nerve root can provoke substantial pain and discomfort.

The location of the pain depends on where the disc herniation(s) occurred. For example, if the herniation occurred in the cervical areas, then it will likely be felt or radiated in the arm area. If the herniation occurred in the lumbar region, then the pain is likely to radiate or be felt in the legs. It should be note that these injuries are rarely diagnosed in the emergency room. This is an important point to keep in mind in Florida.

The new PIP law in Florida requires that an emergency medical condition (“EMC”) exist in order to have full access to $10,000 in benefits. Otherwise, the insured will only have access to $2,500 worth of medical treatment. It should be noted that the new PIP statute is in flux now as it is being challenged in Florida Courts. However, at this time the new PIP statute still has the EMC prerequisite for full access to $10,000. Also of note, the Florida legislature considered repealing this recently passed law altogether and make it a requirement for drivers to carry bodily injury coverage instead. This idea seems to have been scrapped for now. This is probably because insurance companies still desire to sell PIP coverage as it remains a profitable market for them.

The problem is that herniated discs are not commonly diagnosed in emergency rooms. Most emergency rooms take x-rays which are ineffective in detecting herniated discs. As Miami personal injury attorneys we know that the most effective mechanism to detect herniated discs are magnetic resonance imaging (MRI) , discography, myelography, and electromyography. However, none of these named diagnostic mechanisms has the capacity to measure pain. This is ultimately a subjective matter. There is no nexus between the gravity of herniation and the pain that it causes.

Of course, clients always ask about the degree of compensation when it comes to herniated disc injuries. The compensation is contingent on factors such as the nature and extent of the injury, wage loss, medical expenses (future and present), pain and suffering, loss of consortium, etc. Insurance companies always look to argue points on degenerative issues, preexisting conditions, previous accidents (if any), and force of impact. They often argue that small impacts are unable to cause acute herniated discs.
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As South Florida PIP lawyers we understand the difficulty medical practitioners are going through. We understand that the new PIP laws are causing anxiety and uncertainty. Many practitioners are pondering what to do and if they will be able to keep their practice open. The Florida legislature has given little time for businesses in the PIP field to adapt. Similar laws have taken years to take effect in the past. They usually gives people or corporations in the industry time to adapt and prepare for the new changes. This courtesy was not granted here.

We have received numerous calls regarding the date in which the new Florida PIP law takes effect. Certain parts of the law take effect January 1, 2013 and others on July 1, 2012. Either way, change is coming fast.

On July 12, 2012 the following provisions take effect:

As South Florida PIP lawyers we understand the concerns chiropractors have about the recent laws passed by the legislature. We have received numerous calls asking for a breakdown of the new standards. Here we will address the new standards as it pertains particularly to chiropractors. In order to analyze the effect of the new pip law on chiropractors it we look to the pertinent language;

“Reimbursement for services and care…up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition. Reimbursement for services and care…is limited to $2,500 if any provider…determines that the injured person did not have an emergency medical condition.”

It is very clear from the above language that a chiropractor cannot diagnose an emergency medical condition and thus will be limited to $2,500 in reimbursements for services provided. It is hard to see what the rationale is or why chiropractors are being affected disproportionately. After all, a chiropractor is just as able to diagnose an emergency medical condition as a medical doctor, physician assistant, or advanced nurse practitioner.

The effect of this new Florida pip law is that many chiropractors will downsize their practices or close them altogether. Many jobs will be lost as a result of this law. Whether any benefit will come to citizens of Florida remains to be seen. This new PIP law was passed with the condition that insurance companies first reduce their rates by 10% and then 25%. However, insurance companies will not be obligated to reduce rates if they can show that it is not financially feasible. Thus, the result will most likely be that Florida citizens lose jobs and their insurance rates will remain the same or even rise.

There are ways in which chiropractors may be able to charge up to $10,000 through their practice. We are endeavoring toward perfecting these mechanisms and will provide services along those lines for chiropractors. We are also endeavoring along with physicians to provide appropriate forms and protocols for the new emergency medical condition (emc) standard. These will be available shortly.

As Miami pip attorneys we understand that things may seem dire for a chiropractor reading this blog. In fact, we have seen a few chiropractic offices close altogether. It is our impression that such rapid actions are not wise. As mentioned above there are still possibilities by which a chiropractor can bill up to $10,000. Furthermore, the validity of these new PIP standards may be in question and will surely be tested in court. In fact, there may be constitutional issues in question.

Equal protection under the law is guaranteed under the Florida and Federal constitution. Section 2 of the Dan Ray Warren v. Statefarm Mutual Automobile Insurance company, a chiropractor alleged that Florida Statute 627.736(5)(b) denied, “‘equal protection under the Florida Constitution to [chiropractors and other health care providers] by differentiating [their] bills from hospital and ambulance bills.” 899 So.2d 1090 (Fla. Supreme Court, 2005). To clarify, Florida Statute 627.736(5)(b) states that providers have no duty to pay for treatments that were rendered more than 30 days after postmark date. This same requirement was not applied to hospitals or ambulances.

Here the Supreme Court of Florida determined that different billing standards and deadlines did not constitute a fundamental right and chiropractors and other health care providers did no fall into a suspect class. By suspect class one refers to race, nationally, gender, etc. In other words, it did not seem to be law aimed at a particular group of people. This is a law that appears neutral on its face. The Court then reasoned that,

“[a] constitutional equal protection challenge to a statute that does not involve a fundamental right or suspect classification is evaluated by the rational relationship test…Under this test, a court must uphold a statute if the classification bears a rational relationship to a legitimate governmental objective. Our analysis in this case is governed by the rational relationship test because section 627.736(5)(b) does not implicate a fundamental right, nor do the petitioners claim to constitute a suspect class or claim that a fundamental right is at stake.” Id at 1095.

Here the Florida Supreme Court came to the conclusion that billing standards did not entail any sort of fundamental right or issue triggering a higher scrutiny. Thus, the Florida Supreme Court upheld the law.

However, the current situation seems to be different. There is an argument that caps imposed on chiropractors may indeed entail an issue relating to a fundamental right. We are referring to the right “to be rewarded for industry.” Why should a chiropractor or health care facility be limited as to the amount they may be able to bill an insurance company? On its face, the counter argument is that one is not prejudicing chiropractors or distinguishing between anybody. The new pip standard places caps based on whether an emergency medical condition is present. Nonetheless, one has to look at who can make this determination and it is quite apparent that chiropractors have been left out of the list.

If the courts determine that there is fundamental right in question they will apply a strict scrutiny standard. This would mean that the government would have to show that a compelling interest exists to justify the policy. This standard is very hard to meet and in many cases leads to the nullity of laws and standards passed by governments.

Our view is that a fundamental right is a stake here. This relates to ability of chiropractors and their employees to make a living and enjoy the fruits of their labor. Few things are more fundamental than that.
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Many policy holders, medical practitioners, chiropractors, and medical institutions are concerned about the new standards imposed on PIP in Florida. We have written a previous blog on the matter, but one blog is not sufficient to fully explore the issue. Thus, our goal here is to expand our analysis as it pertains to the definition of an emergency medical condition.

The new PIP standard defines emergency medical condition as, “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 the patient health.(b) Serious impairment to bodily functions.(c) Serious dysfunction of any bodily organ or part.” It would seem that the key factor in determining whether an emergency medical condition exists is the detection of acute symptoms. Without finding of acute symptoms an emergency medical condition is unlikely.

Fortunately, there are cases that provide some guidance as to the definition of an acute symptoms. For example one court provides, “[a]n acute symptom is a symptom ‘characterized by sharpness or severity…having a sudden onset, sharp rise, and short course…[as] opposed to chronic.’ Moreover, as a verb, ‘manifest’ means ‘to show plainly.’ …[T]he acute indications of injury or illness must coincide in time with the emergency medical condition.” Grennery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226 (2nd Circuite, 1998).

As car accident attorneys in Miami we understand that back injuries are common as a result of vehicular impacts. Therefore, back injuries will result as a good example to in application of the acute symptom analysis. The following are common in relation to acute spinal cord injuries:

• Muscle Weakness
• Loss of voluntary muscle movement in the chest, arms, or legs,
• Breathing problems
• Loss of feeling in the chest, arms, or legs
• Loss of bowel and bladder function

Thus, if a patient complains of back pain and is combined with any of the symptoms above, then the most likely outcome is that the emergency medical condition standard would be met. For the most part, medical practitioners agree that emergency medical attention is needed if there is an inkling of a spinal cord injury. Medical practitioners should then be able to follow up their initial determination of an emergency medical condition with tests such as x-rays and MRI’s. These should be covered under the new PIP standard under the emergency medical condition standard and perhaps trigger $10,000 for continuing care and rehabilitation. A similar analysis should apply to other types of injuries.

As we explained on previous blogs, much remains to be seen as it relates the new PIP standards. As South Florida PIP attorneys we understand the difficulties and uncertainty this has caused health care providers. There is no doubt that many businesses and jobs will be affected by these changes.
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Recently the Florida legislature passed standards regulating PIP coverage in the state of Florida. Many attorneys, policy holders, chiropractors, and medical doctors have been trying to make sense of these new standards. As Miami car accident attorneys we understand that new laws and standards produce anxiety and uncertainty. This is augmented due to the fact that all drivers in the State are affected by these changes.

One of the major causes of uncertainty relates to the term emergency medical condition. The new PIP standards define emergency medical condition in the following manner; “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 the patient health.(b) Serious impairment to bodily functions.(c) Serious dysfunction of any bodily organ or part.” This standard seems to be taken from the Emergency Medical and Active Labor Act (EMTALA) which can be found at 42 U.S.C. 1395d.

EMTALA is meant to induce hospitals emergency rooms to treat individual who have emergencies regardless of whether they have benefits. If a hospital emergency room determines that an emergency medical condition exists, then it would be required to stabilize the patient. The important thing to note here is the standard provided by EMTALA is almost always applied in emergency room situations. Indeed, the Florida lower chamber’s early drafts of the law stated that an emergency medical condition could only be diagnosed in a hospital. The language in an early version of HB119 stated, “[t]he medical diagnosis and the determination of an emergency medical condition shall be rendered in a hospital.” This may be evidence showing that the Florida legislature has a different concept for the application of the definition of emergency medical condition for private practitioners and clinics.

Last Friday night the Florida legislature passed new standards as it pertains to Chapter 627 of the Florida Statutes. As expected these changes have created a sentiment of uneasiness among Florida PIP policy holders and medical providers. This uneasiness has been augmented by interpretations of the new standards by media. In many cases these interpretations are wrong or incomplete. This is to be expected as statutory interpretation (especially done under the deadlines imposed on journalists) is for the most part a complex matter. Furthermore, interpretations by the media tend to be oversimplified. Thus, our goal here is to provide an in depth analysis of the new 2012 PIP standards. To that end, we include here a link to the Florida PIP reforms passed on Friday, March 9, 2012.

Being South Florida car accident attorneys we have dealt with the issue of PIP on numerous other blogs. In those blogs we explained that PIP stands for personal injury protection. PIP is an insurance coverage that covers up to $10,000 of medical costs due to a car accident regardless of fault. For the most part, this still remains true. As Miami PIP attorneys we understand that this is a very important issue to medical providers and thus will address it first.

An insurance company must provide $10,000 in medical and disability benefits and $5,000 in death benefits resulting from injury as a result of ownership of a motor vehicle. The $5000 in death benefits are in addition to the medical and disability benefits provided under the insurance policy. The insurance company must provide coverage for 80% of all reasonable medical expenses as long as the individual receives initial services and care within fourteen (14) days after motor vehicle accident. Initial services can be provided by a medical doctor, dentist, chiropractic physician, or hospital, or hospital owned facility.

Reimbursements for services by the above is limited to up $10,000 if a physician, dentist, physician assistant, or advanced registered nurse practitioner, has determined that the injured person had an emergency medical condition. What should be noted here is that chiropractors are not on this list. This means that chiropractic physicians will not be eligible to bill up to $10,000 for medical emergency conditions. If a medical doctor, chiropractic physician, physician assistant, or advanced nurse practitioner, determines that the accident did not result in an emergency medical condition, then reimbursements are limited to $2,500.

This begs the question of what is an emergency medical condition. According to the new standard an emergency medical condition means, “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 the patient health.
(b) Serious impairment to bodily functions.
(c) Serious dysfunction of any bodily organ or part.”

This definition is vague to say the least. Insurance companies will probably disagree with physicians as to what constitutes an emergency medical condition. This may lead to litigation in order to define the term. Ultimately, it may end up being a question for a jury to determine. However, it should be noted that the best person to make this determination is the examining physician. The physician who examines the injury closest in time to the accident will be best suited to determine whether it amounts to an emergency medical condition. It will be difficult to undermine these initial evaluations as they are related to the observations of the physician in that particular instance.

PIP medical benefits will not be extended to massage therapy or acupuncture regardless of whether an emergency medical condition is involved. It should be noted that an insurance company does not have to amend any policies in order for any of these changes to become effective. They are also not required to notify providers, or claimants, of such changes. The above mentioned changes will take effect on January 1, 2013.

Another area that will be affected by changes to the PIP statute is examinations under oath (“EUO”). An EUO Is a post loss requirement that may be a precondition to receiving PIP coverage. During an EUO the insurance company may ask an insured questions that are relevant to the loss. The new standard states; “the scope of questioning during an examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this…is a condition precedent to receiving benefits.” However, the insurance company must have a reasonable basis to take an EUO. Thus, they don’t have a carte blanche as it pertains to taking an EOU. Nonetheless, it should be noted that “[a]n insured’s refusal to submit to or failure to appear at two (2) examinations raises a rebuttable presumption that the insured’s refusal or failure was unreasonable.” In other words, if an insured fails to show up to two EUOs he must be able to show good cause for doing so.

The above covers most of import issues addressed in the new pip legislation. However, there are other points that should be covered that address questions regulating medical providers. These will be addressed with more specificity in another blog.
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