Bodtke v. State Farm Mutual Automobile Insurance Co.

FORD ELLIOTT, Judge,

concurring.

While I join in the majority’s decision, I write separately to address the majority’s conclusion as to the proper scope of a Peer Review Organization’s (PRO) decision.

I agree with the majority in its analysis of appellant’s procedural missteps in failing to first request a reconsideration by the PRO before seeking redress in court. That issue is clearly controlled by this court’s recent decision Terminato v. Pennsylvania National Insurance Co., 422 Pa.Super. 92, 618 A.2d 1032 (1993). However, the majority chooses to further address the issue as to whether the PRO’s decision was outside the scope of Section 1797(b). Therefore, I feel compelled to offer a brief response.

I cannot agree “that [the PRO’s determination that] certain injuries treated were not related to the accident is simply another way of stating that they were not medically necessary.” Majority memorandum at 3. Section 1797(b)(1) specifically provides that the evaluation of a PRO “shall be for the purpose of confirming that such treatment, products, services or accommodations conform to. the professional standards of performance and are medically necessary.” I do not equate either of these functions with causation and coverage under an insurance policy. Whether treatment is medically necessary for a specified injury is an entirely different issue from whether that injury is causally related to the accident and therefore covered under the applicable policy of insurance. On this latter issue, I believe appellant is still entitled to her day in court.

Any further discussion of this issue would be premature at this stage, given that the matter was only addressed in dictum by the majority. The scope of the language of Section 1797(a) is certainly an issue that this court will soon have to address once the proper procedural steps are taken to bring the issue squarely before us.