UNITED AUTOMOBILE INSURANCE COMPANY v. CENTRAL THERAPY CENTER, INC., A/A/O VANESSA LOPEZ ( 2022 )

Third District Court of Appeal
State of Florida
Opinion filed July 6, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-950
Lower Tribunal No. 13-474 CC
________________
United Automobile Insurance Company,
Appellant,
vs.
Central Therapy Center, Inc., a/a/o Vanessa Lopez,
Appellee.
An Appeal from the County Court for Miami-Dade County, Gloria
Gonzalez-Meyer, Judge.
Michael J. Neimand, for appellant.
David B. Pakula, P.A., and David B. Pakula (Pembroke Pines);
Corredor & Husseini, P.A., and Maria E. Corredor, for appellee.
Before LOGUE, LOBREE, and BOKOR, JJ.
LOGUE, J.
This case arises under Florida’s “No-Fault Personal Injury Protection”
insurance laws, commonly known as the “PIP” statute, sections 627.730 et
seq., Florida Statutes. United Automobile Insurance Company appeals the
trial court’s order granting final summary judgment in favor of Central
Therapy Center, Inc. as the assignee of Vanessa Lopez. The issue is
whether an insurer that concedes physiotherapy treatments were medically
reasonable and necessary can refuse to pay for the treatments because the
records maintained by the treating physician failed to comply with the record-
keeping requirements of the laws and regulations governing the licensing of
chiropractors. We hold that, where an insurer agrees treatments are
medically reasonable and necessary, a failure to comply with the record
keeping requirements governing the licensing of chiropractors is not a basis
to refuse to compensate the claim. Accordingly, we affirm.
FACTS
Ms. Lopez was injured in a car accident. She received medical
treatments from, and assigned her right to be reimbursed for the cost of the
treatments to, Central Therapy. Central Therapy sued United Automobile for
reimbursement. In the course of the lawsuit, United Automobile stipulated
that the physical therapy treatments Central Therapy provided to Ms. Lopez
were reasonable and necessary. Nevertheless, United Automobile
2
contended that Lopez’s medical records failed to comply with the statutes
and regulations governing the record-keeping requirements of chiropractors.
The medical records in their entirety consist of approximately 100
pages, including the diagnoses and treatment plans made over four visits in
the course of eight weeks. The record in controversy was made on a pre-
printed form. The section of the record in dispute lists 12 physical therapy
treatments with the language “(1-2)” next to them and a line for a check mark.
Rather than individually check each of the therapies, the chiropractor drew
a bracket including all of them and made a nine-word illegible comment,
which she initialed.
The trial court granted summary judgment in favor of Central Therapy.
It determined both that (1) an examination of the medical record itself
indicated that there was no factual dispute and the record complied with the
applicable statutes and regulations; and (2) technical noncompliance with
the record keeping requirements in these circumstances did not render the
treatments “unlawful” under the statute. United Automobile timely appealed.
ANALYSIS
We review a trial court’s order granting final summary judgment de
novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126(Fla. 2000).
3
We focus on the trial court’s second ground for granting summary
judgment. The dispute on this ground centers on the provisions of the PIP
laws that require the insurer to reimburse only covered lawful medical care
that is reasonable, related, and medically necessary. § 627.736(1)(a)
(requiring that all automobile insurance contracts provide coverage for
“[e]ighty percent of all reasonable expenses for medically necessary medical
. . . and rehabilitative services.” (emphasis added)). The caselaw has
interpreted this language as requiring that the services be related to the
accident giving rise to coverage. See United Auto. Ins. Co. v. W. Med. Ctr.
Health Care II, Corp., 326 So. 3d 794, 795 n.2 (Fla. 3d DCA 2021). Another
provision of the PIP statutes provides “[a]n insurer or insured is not required
to pay a claim or charges . . . [f]or any service or treatment that was not lawful
at the time rendered.” § 627.736(5)(b)(1)(b), Fla. Stat. (emphasis added). As
defined in the statute, “‘Lawful’ or ‘lawfully’ means in substantial compliance
with all relevant applicable criminal, civil, and administrative requirements of
state and federal law related to the provision of medical services or
treatment.” § 627.732(11), Fla. Stat.
United Auto contends that Lopez’s physiotherapy treatments were
unlawful because the prescription for the treatment failed to comply with
standards for medical records in accordance with section 460.413(1)(m),
4
Florida Statutes, and Florida Administrative Code Rule 64B2-17.0065.
Section 460.413 is entitled “Grounds for disciplinary action; action by board
or department.” It provides that a chiropractor is subject to disciplinary action
for various reasons including failure to maintain records to certain standards.
It reads:
(1) The following acts constitute grounds for denial of
a license or disciplinary action, as specified in s.
456.072(2):
...
(m) Failing to keep legibly written chiropractic
medical records that identify clearly by name and
credentials the licensed chiropractic physician
rendering, ordering, supervising, or billing for each
examination or treatment procedure and that justify
the course of treatment of the patient, including, but
not limited to, patient histories, examination results,
test results, X rays, and diagnosis of a disease,
condition, or injury. X rays need not be retained for
more than 4 years.
§ 460.413, Fla. Stat. Regarding this statutory record-keeping requirement,
the Florida Department of Health, Division of Chiropractic Medicine,
promulgated Rule 64B2-17.0065 further clarifying the recordkeeping
standards:
Minimal Recordkeeping Standards.
(1) These standards apply to all licensed chiropractic
physicians and certified chiropractic assistants.
These standards also apply to those examinations
advertised at a reduced fee, or free (no charge)
service.
5
(2) Medical records are maintained for the following
purposes:
(a) To serve as a basis for planning patient care and
for continuity in the evaluation of the patient’s
condition and treatment.
(b) To furnish documentary evidence of the course of
the patient’s medical evaluation, treatment, and
change in condition.
(c) To document communication between the
practitioner responsible for the patient and any other
health care professional who contributes to the
patient’s care.
(d) To assist in protecting the legal interest of the
patient, the hospital, and the practitioner responsible
for the patient.
(3) The medical record shall be legibly maintained
and shall contain sufficient information to identify the
patient, support the diagnosis, justify the treatment
and document the course and results of treatment
accurately, by including, at a minimum, patient
histories; examination results; test results; records of
drugs dispensed or administered; reports of
consultations and hospitalizations; and copies of
records or reports or other documentation obtained
from other health care practitioners at the request of
the physician and relied upon by the physician in
determining the appropriate treatment of the patient.
Initial and follow-up services (daily records) shall
consist of documentation to justify care. If
abbreviations or symbols are used in the daily
recordkeeping, a key must be provided.
(4) All patient records shall include:
(a) Patient history;
(b) Symptomatology and/or wellness care;
(c) Examination finding(s), including X-rays when
medically or clinically indicated;
(d) Diagnosis;
(e) Prognosis;
(f) Assessment(s);
(g) Treatment plan; and,
6
(h) Treatment(s) provided.
(5) All entries made into the medical records shall be
accurately dated. The treating physician must be
readily identifiable either by signature, initials, or
printed name on the record. Late entries are
permitted, but must be clearly and accurately noted
as late entries and dated accurately when they are
entered into the record.
(6) Once a treatment plan is established, daily
records shall include:
(a) Subjective complaint(s);
(b) Objective finding(s);
(c) Assessment(s);
(d) Treatment(s) provided; and,
(e) Periodic reassessments as indicated.
(7) In situations involving medical examinations,
tests, procedures, or treatments requested by an
employer, an insurance company, or another third
party, appropriate medical records shall be
maintained by the physician and shall be subject to
Section 456.057, F.S. However, when such
examinations, tests, procedures, or treatments are
pursuant to a court order or rule or are conducted as
part of an independent medical examination
pursuant to Section 440.13 or 627.736(7), F.S., the
record maintenance requirements of Section
456.057, F.S., and this rule do not apply. Nothing
herein shall be interpreted to permit the destruction
of medical records that have been made pursuant to
any examination, test, procedure, or treatment
except as permitted by law or rule.
(8) Provided the Board takes disciplinary action
against a chiropractic physician for any reason, these
minimal clinical standards will apply. It is understood
that these procedures are the accepted standard(s)
under this chapter.
Fla. Admin. Code R. 64B2-17.0065.
7
We are not persuaded by United Automobile’s argument that a treating
physician’s failure to comply with the recordkeeping provisions of section
460.413 and rule 64B2-17.0065 makes an otherwise reasonable, related,
and medically necessary service or treatment “unlawful” as that term is used
in section 627.736(5)(b)(1)(b). The focus of 627.736(5)(b)(1)(b)’s lawfulness
requirement is on “service or treatment.” It provides an insurer need not pay
for “service or treatment” that is unlawful. When read in the context of the
PIP statutes as a whole, we believe this language is concerned with whether
the service or treatment itself violates existing laws.
The recordkeeping provisions that United Automobile cites, however,
do not deal with the lawfulness of services or treatments. Instead, they deal
only with the recordkeeping that a chiropractor must maintain to keep his or
her license in good standing. Section 460.413 is entitled “Grounds for
disciplinary action, action by board or department.” The statute provides that
failure to abide by its provision constitutes grounds for disciplinary action, “as
specified in § 456.072(2).” This language contrasts with other parts of
Chapter 460 that make certain conduct illegal. See, e.g., § 460.411(1)(a)
(making practice of chiropractic medicine without a license a third-degree
felony). Thus, there is no indication that the Legislature intended that a failure
8
to maintain records to the standard in the regulations would render the
treatment or service itself per se illegal.
Moreover, section 456.072(2) leaves the interpretation and application
of these provisions, certainly in the first instance, to the expertise of the board
and department. It specifically states that “[w]hen the board, or the
department when there is no board, finds any person guilty” of an action
justifying a disciplinary response it may enter an order imposing one of
several sanctions. Likewise, rule 64B2-17.0065 indicates that “[p]rovided the
Board takes disciplinary action against a chiropractic physician for any
reason, these minimal clinical standards will apply.” United Automobile
would upend this legislative assignment of responsibility and place insurers
and courts in the role of combing through records to decide when, for
example, the occurrence of illegible notes by doctors failed to substantially
comply with the requirement that “[t]he medical record shall be legibly
maintained” established in rule 64B2-17.0065(3). That analysis is too far
removed from the focus on the legality of the treatment or service itself which
was the Legislature’s concern in the lawfulness requirement of section
627.736(5)(b)(1)(b). 1
1
For a thoughtful analysis on when an affirmative defense is more directly
related to the lawfulness requirement of the statute, see Gallo Med.Ctr. v.
State Farm Fire and Cas. Co., 27 Fla. L. Weekly Supp. 130b (Fla. 11th Cir.
9
At the same time, we acknowledge that the statutory framework
presumes that a provider’s records will be made available to a covering
insurer. See § 627.736(6)(b) (providing that upon request a provider must
“furnish a written report of the history, condition, treatment, dates, and costs
of such treatment of the injured person”). In this case, we are not dealing
with a situation where the condition of the medical records prevents the
insurer from evaluating whether the service and treatment were reasonable,
related, medically necessary, or lawful.
Affirmed.
Mar. 26, 2019) (Bokor, J.) (permitting an “unlawfulness” affirmative defense
that addresses specifically the legality of the provision of the service at
issue).
10