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Interpreting the Emergency Medical Condition Clause in the new PIP Statute

The new PIP Statute was written pretty poorly. That is what happens when the legislature pushes to get in a final bill at the 11th hour before the session closes.  The problem with a hastily passed law is that there are often conflicting provisions in the statute. When this occurs the courts are the place that people generally need to go to figure out what the law means.  One such important point is the Emergency Medical Condition clause in the new Personal Injury Protection (PIP) laws.

Intent Behind Emergency Medical Condition Provision

The thought and intent behind the provision are solid.  In Florida, all people must have a $10,000 insurance policy, which covers their own medical bills. That insurance is called Personal Injury Protection or PIP.  But PIP premiums have risen over the last few years. Consumers don’t like paying higher rates for automobile insurance and the legislature wanted to find a way to lower premiums without harming the coverage.  The compromise was a decrease in the insurance coverage from $10,000 to $2,500 when the need for care was not an “emergency medical condition” (EMC).  In other words, when a person is taken by an ambulance to the hospital on a backboard and sees an emergency doctor who orders X-rays, MRIs, and a CAT Scan, and the patient is told to follow up with an orthopedist; that person needs $10,000 of insurance just to cover those hospital bills and the orthopedist bills.  It would be patently unfair to have people buy PIP insurance and go to the hospital and NOT get the coverage they need to pay for those medical bills.  Meanwhile, the person who is involved in a slight fender bender who goes to his chiropractor because his neck hurts three days after the accident will likely only need a short term of therapy and treatment to get better. That condition is not an emergency and therefore should be capped at the lower coverage level of $2,500.

Who determines an EMC?

The problem is obvious; who makes the determination on what constitutes an “emergency medical condition,” and when does it need to be made?  We represent hospitals and doctors.  I can point to many hospital bills, exactly like the scenario I described above, more than $15,000 in the hospital’s bill alone, and the PIP insurance company is disputing the bill by saying the condition was NOT an EMC and therefore they will only pay $2,500!  That leaves the innocent patient with a bill of $12,500, and he must hire a Personal Injury Lawyer to get the rest of the money to pay the medical bills!  Isn’t this a recipe for more lawsuits, not less?

Florida law is completely absent in giving any direction on how to resolve the issue. They don’t mention a definition of EMC. They don’t point to any other laws, like the Federal Emergency Medical Treatment and Labor Act (EMTALA), which defines emergency treatment needs and when hospitals should take on people because of an EMC!  Further, the statute affirmatively states that the EMC should be noted by the doctor in the medical notes.  It also states that the lack of an EMC must be noted in the medical records to lower the coverage to $2,500.  It does not say what happens when the medical notes don’t say anything, but the situation is clearly emergent!  Which is it?

Are the insurance companies asking doctors to change the way they practice medicine?

Historically doctors do not mention whether a patient is involved in an EMC.  To ask them to affirmatively make an EMC analysis would be artificial and lead to doctors needing to find EMCs to get $10,000 in coverage.  We will be asking the doctors to change the way they practice medicine, so they can collect PIP insurance.  The doctors likely won’t do this because PIP dollars are less than 1% of their total practice gross revenue!  Most doctors make 99% of their money by being paid from health insurance companies or Medicare or even their own patient copayments but not auto accident PIP insurance!

How Judges Have Been Ruling on this Issue

Recently we have watched different judges decide this issue both ways.  Some judges say the doctors MUST state the condition of the patient is an EMC to allow the patient to have $10,000 of insurance.  Other judges say the judge on the case must say it is NOT an EMC or the PIP insurance defaults to $10,000.  The justification for this default to $10,000 is solid in that PIP has always been $10,000, so why would it default to $2,500 when the doctor doesn’t mention EMC?

The appellate courts are going to need to make a definite answer.  The newest case to go to appeal on this issue is MEDICAL CENTER OF THE PALM BEACHES D/B/A CENTRAL PALM BEACH PHYSICIANS & URGENT CARE, INC. A/A/O CARMEN SANTIAGO, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant.  We will let the Circuit court decide the issue and get clear direction for our clients.

For now, if you are a doctor or hospital, and you believe the patient is entitled to $10,000 of insurance you should consider making a medical note that says the patient has suffered an injury and needs emergency medical care. This should cover both your rights and your patient’s rights to collect the insurance for which they paid a lot of premium dollars.

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