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The Interplay Between Seeking Treatment and Who Can Render an EMC a View of EMC Case Law

The Florida No-Fault Personal Injury Protection (PIP) statute is confusing, vague, and frustrating to digest. As a practitioner or a layman, we all struggle to truly determine what the Legislature intended with this area of the law. That being said, it is important to understand when an injured person is to seek medical treatment, whom to treat with, and who can or cannot render an emergency medical condition (EMC) opinion.

When does a patient need to seek treatment?

According to Florida Statutes Section 627.736(1)(a) a patient must seek “initial service and care” within 14 days of the motor vehicle accident. For a patient to recover PIP benefits they must seek treatment for their injuries within this 14 day period. However, a giant red stop sign was placed into the law by the Legislature. A person seeking this initial care and treatment in connection with a car accident must see these licensed physicians to ensure medical benefits are reimbursed:

  • An orthopedic physician
  • An osteopathic physician
  • A dentist
  • A chiropractic physician
  • Treatment in a hospital or a facility that owns or is wholly owned by a hospital.
  • Qualified EMT

What is an EMC?

The next troubling part of this law deals with the magical EMC. Pursuant to Florida Statutes Section 627.732: “Emergency medical condition” means a medical condition 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:

  • Serious jeopardy to patient health.
  • Serious impairment to bodily functions.
  • Serious dysfunction of any bodily organ or part.

When does one have to get an EMC diagnosis?

There is no specific time frame to receive an EMC diagnosis. A person DOES NOT have to seek an EMC diagnosis within the first 14 days of the car accident. The EMC diagnosis cannot be determined by a chiropractic physician. The sole doctors with EMC diagnosis power are:

  • Orthopedic physicians (MD)
  • Osteopathic Physicians (DO)
  • Dentist
  • Physician Assistant
  • Advanced Registered Nurse practitioner

What is the EMC cap?

Insurance companies are currently arguing that they are allowed to cap PIP coverage at $2,500.00 in the absence of an EMC diagnosis. These insurers are arguing that the new law provides $10,000 in PIP coverage only if a qualified MD, DO, dentist, physician’s assistant, or advanced registered nurse practitioner declares that the patient has an emergency medical condition. If the qualified doctors or nurses fail to include an EMC diagnosis within their medical records, the insurers are arguing that $2,500.00 is the maximum coverage afforded to injured patients.

To recap: Insurer Argument: $2,500.00 in Coverage

Silence=$2,500.00, No EMC is determined=$2,500.00

The providers or “insureds” are arguing that $10,000.00 in PIP coverage remains if the medical records are silent as to an EMC diagnosis. They argue that the $2,500.00 coverage limitation solely occurs when one of the above-mentioned doctors determines that the injured person did not have an EMC.

To recap: Insureds/Providers Argument: $10,000.00

Silence=Full coverage, Affirmative EMC diagnosis= Full Coverage.

How to satisfy the EMC requirement

There is no specific form or document required for an EMC determination. The statute is silent as to the key language that needs to be present. What the statute does say is that:

“Reimbursement for services and care provided… up to $10,000 if an MD or DO, dentist, physician assistant, or advanced registered nurse practitioner has determined that the injured person had an emergency medical condition.”

Next, the following paragraph states:

“Reimbursement for services and care… is limited to $2,500.00 if any provider determines that the injured person did not have an emergency medical condition.

We suggest as a matter of course that our providers state that they rendered treatment to the patient and that in their medical opinion, an EMC exists. We likewise have them state the definition of an EMC for clarification. These methods are not necessary, but they are merely suggestions to ensure that the EMC diagnosis is accepted by the judge. There is uncertainty as to what qualifies as an EMC determination.

Case law – EMC pointers:

  1. Case law suggests that merely mentioning that a patient has an EMC condition will suffice.
  2. An independent doctor CANNOT review the medical records for the insurance company and state that the patient did not have an emergency medical condition.
    1. Reasoning: The statute clearly states that “initial services and care lawfully provided by a physician, etc.” Thus it contemplates initial services and care or follow-up services and care and it does not merely constitute a paper review of a patient’s file. A treating provider must render said EMC determination.
  3. Certain jurisdictions suggest that the defendant has a further requirement in the EMC determination:
    1. The defendant’s insurance company may have to serve the medical provider with a request for information or a 6(b) request. Said request must ask the provider for any documents supporting an EMC.
    2. If the provider fails to respond until after suit, this jurisdiction also suggests that the Case was filed prematurely.
  4. Defendant has been successful in arguing that a case filed without an EMC determination is premature, in that the demand letter should not have been served on the defendant until the provider served the defendant with an EMC affidavit or paperwork from the doctor.
    1. This certainly can be used against the insurer. Plaintiff’s counsel may argue that a request for information was not served. This may in fact counter a $2,500.00 cut-off.
  5. Plaintiff attorneys are filing declaratory actions in the realm of EMC’s. These actions ask the court to settle the EMC issue-namely, if the record is silent as to an EMC determination, should coverage be extended at $10,000.00 or at $2,500.00?

It is essential to contact an experienced PIP attorney to discuss EMC cut-offs and when an injured patient must treat with a provider to ensure PIP benefits are reimbursed. At the LaBovick Law Group, we will explain the process and make sure a proper EMC determination is made.

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