Florida Bar - Florida Supreme Court

Florida Bar - Florida Supreme Court

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"Scott Makar" 10/26/2005 12:06 PM

To , cc bcc Subject Fwd: Proposed PIP Jury Instructions

Another e-mail. ----- Message from "Robert Adams" on Wed, 26 Oct 2005 11:15:13 -0400 -----

To: Subject: Proposed PIP Jury Instructions Mr. Makar,

I recently saw the Proposed PIP Jury Instructions in the Bar News. I was concerned with what I saw. I practice in the PIP arena and have for the last ten years. I have also spent quite a bit of time lobbying the legislature to get the changes necessary to sustain PIP in Florida. I am sure you have received numerous emails and letters on this issue already, but I thought it imperative that I voice my opinion as well. My problem concerns the following language:

“The third issue is whether the charge is reasonable. If you find the charge for a service or services is reasonable, you should award that amount as damages. If you find the charge for a service is not reasonable, you should determine what is a reasonable amount and award that amount.”

It would be error to allow the proposed jury instruction and verdict form because: (1) the plaintiff has the burden of proof of establishing both the reasonableness and necessity of each of the submitted charges, and allowing the proposed jury instruction and verdict form removes the burden of proof from the plaintiff and improperly shifts the burden of proof by forcing the defendant/insurer to prove that it’s reductions were reasonable and to prove that every charge in between the plaintiff’s billed charge and the reduced amount was also unreasonable; (2) it allows the jury to decide matters outside the scope of the case; (3) it effectively removes the ultimate decision from the jury.

Section 627.736(1)(a), Fla. Stat. (2004), requires every insurance company in Florida issuing personal injury protection policies to cover injuries sustained “as a result of bodily injury, sickness, disease, or death arising out of the . . . use of a motor vehicle.” Insurers are only required to pay for eighty percent of reasonable medical charges and expenses for

Appendix D, Page 107

medically necessary services. Likewise, medical providers are required by the No-Fault Statute to only charge a “reasonable amount” for their services. Section 627.736(5)(a), Fla. Stat. (2004) states that “any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered . . .”

It is clear and well settled law in Florida that Plaintiff bears the burden of establishing that the charges submitted to an insurer for payment must be reasonable in price. See State Farm Mutual Automobile Ins. Co. v. Sestile, 821 So.2d 1244, 1246 (Fla. 2d DCA 2002) . Certainly, a plaintiff has every right to bring a breach of contract action pursuant to the No-Fault Statute. However, the plaintiff is saddled with the burden of bringing forth affirmative evidence to prove the reasonableness of each and every charge submitted to an insurer for payment. Nothing in the No-Fault Statute altered the standard dynamics of a lawsuit. There has never been any legislative mandate or amendments to the No-Fault Law that suggests that the legislature ever intended on removing the burden of proof from the plaintiff. See Derius v. Allstate Indemnity th Co., 723 So.2d 271, 272 (Fla. 4 DCA 1998) . Accordingly, Plaintiff should at all times be required to prove that the charges submitted were reasonable in price.

If this Committee recommends these proposed instructions and allows the jury to fill in the blank on the verdict form as to what a reasonable charge is for each CPT code, then this would effectively shift the burden of proof to the defendant. As noted above, it is well settled that the plaintiff must prove that the charge they submitted was reasonable. By allowing the jury to hear this proposed instruction and to write in the reasonable amount on the verdict form, plaintiff will be relieved of the necessity of proving that plaintiff’s specific charges were reasonable and instead the plaintiff gets the benefit of arguing that any charge other than what the defendant paid is a victory for the plaintiff. This effectively shifts the burden to the defendant by requiring the defendant to now prove that it’s payment was reasonable. Requiring the defendant to prove that it’s payment was reasonable is in derogation of the statute and runs afoul of the case law. See Derius at 272; Sestile at 1247; and Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031, 1034 (Fla. 2d DCA 2001) . To alter the normal dynamics of the lawsuit relieving the plaintiff of it’s burden and requiring the defendant to prove the reasonableness of it’s payment is reversible error on appeal.

Not only does such a verdict form shift the burden to the defendant to prove the reasonableness of the reduction, but it also requires the defendant prove that any and all amounts between the charged amount and the reduced amount are also unreasonable. This is easiest explained by example. For example, plaintiff bills defendant $100 for CPT code 97010. Defendant pays $35 as a reasonable amount. It is the plaintiff’s burden to prove that $100 is a reasonable charge for CPT code 97010. Allowing the proposed instruction and verdict form Appendix D, Page 108

improperly shifts the burden of proof and forces on the defendant the insurmountable burden of proving that ALL amounts between $35.00 and $100 were unreasonable. That is a drastically different standard than the one outlined by the case law. It simply is not what the legislature intended nor is it what the case law as stated in Derius or Sestile requires. In fact, it is exactly the opposite.

Per Derius and Sestile , the scope of any trial regarding the reasonable price of any product or service rendered by a medical provider and submitted for payment under Section 627.736, Fla. Stat. (2004) should be limited to the determination of whether “the charges are in fact reasonable.” Sestile at 1246. By allowing the jury to hear the proposed instruction or to write in the reasonable amount, the Committee is allowing the jury to determine matters outside the scope of the trial and the pleadings. The only issue before the jury is whether the actual charge(s) submitted by the plaintiff was/were reasonable. In fact, there won’t be ANY evidence put on for the jury to consider what a reasonable charge is if the plaintiff’s charge is unreasonable. The only evidence that will be before the jury is that per the plaintiff their charge(s) was/were reasonable and from the defendant that the plaintiff’s charge(s) was not/were not reasonable. If there is no evidence that any number in between is reasonable, then the jury has no evidence upon which to base their decision. It is outside the scope of the pleadings and the evidence admitted at trial to allow the jury to determine and write in a specific amount on the verdict form. The jury is only charged with the responsibility of determining whether each specific charge submitted by the plaintiff was reasonable. If so, then their verdict is for the plaintiff. If not, then their verdict is for the defendant.

As a general rule, issues relating to “reasonableness” and, more specifically, as to whether medical expenses are “reasonable and necessary” within the meaning of §627.736 are for the finder of fact and, therefore, are inappropriate for summary disposition. See, e.g., th Donovan v. State Farm Mut. Auto Ins. Co. , 560 So. 2d 330 (Fla. 4 DC 1990)( where, in an action by an insured to recover PIP benefits, the Court reversed a directed verdict in favor of the insurer, holding that, as in the case of a liability action, it is for the jury to decide whether medical bills are reasonable and necessary and should be paid by the insurer). See also Garrett v. Morris Kirschman & Co. , 336 So. 2d 566, 571 (Fla. 1976)(which the Donovan Court cited as supporting the same rule in liability actions); Charter Oak Fire Ins. Co. v. Regalado, 339 So. 2d 277 (Fla. 3d DCA 1976) (trial court erred, in part, in entering summary final judgment in favor of insured on its entitlement to recover PIP benefits under §627.736, without holding an evidentiary hearing on the “reasonableness” of the insured’s medical bills).

If the Committee recommends this type of verdict form, the ultimate decision of which party prevailed at trial will be removed from the jury. Assuming the jury writes in a number that Appendix D, Page 109

is not plaintiff’s charge and is not defendant’s payment, then it is left to the Court to determine in post trial motions who prevailed at trial. This simply is not an effective or efficient use of the judicial system and, quite frankly, is a waste of judicial resources. Utilizing this proposed instruction and verdict form renders the jury’s determination meaningless. It doesn’t matter what they write in because it will then be left to the Court to determine the prevailing party. That is not the intention of the No-Fault Statute nor is there any precedent in the case law for the utilization of this type of verdict form.

I look forward to hearing from you regarding this matter. Please do not hesitate to contact me should you have any questions or should you wish to discuss this matter further. Thank you for your time and attention.

ROBERT D. ADAMS, ESQUIRE 101 E. Kennedy Blvd. Suite 2175 Tampa, Florida 33602 Telephone No: (813) 221-8669

Facsimile No: (813) 221-8850 FBN 0090506 Attorneys for Defendant

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"Scott Makar"

To , cc

10/21/2005 01:51 PM

bcc Subject Fwd: Proposed PIP Jury Instructions and Verdict Form

History:

This message has been forwarded.

Here's another ... ----- Message from "Heather Wallace" on Fri, 21 Oct 2005 14:01:23 -0400 -----

To: Subject: Proposed PIP Jury Instructions and Verdict Form Dear Mr. Makar: This email is in response to the proposed jury instructions and verdict forms regarding PIP claims. I am a defense attorney in West Palm Beach, Florida, who represents insurers in a variety of claims, including PIP claims. The proposed jury instructions and verdict forms regarding PIP claims have the unintended effect of shifting the burden of proof from the Plaintiff to the Defendant in PIP claims. This is inconsistent with the language of the PIP statute, as well as the existing case law. I urge the committee to reexamine the proposed forms and take a closer look at the PIP statute and its requirements that the Plaintiff bill only a reasonable amount. Thank you for your attention in this matter.

Sincerely, Heather A. Wallace Williams Leininger, & Cosby, P.A. 1555 Palm Beach Lakes Blvd. Suite 301 West Palm Beach, FL 33401 561-615-5666

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"Scott Makar" 10/13/2005 12:23 PM

To cc bcc Subject Re: proposed jury instructions and verdict form on reasonableness

Thanks for your thoughts on the topic. I've forwarding your e-mail to the chair of the PIP subcommittee and a copy will be provided to the full committee to discuss at our next meeting. Best regards, Scott Makar Scott D. Makar Office of General Counsel Appellate Division 117 West Duval Street, Ste. 480 Jacksonville, FL 32202 (904) 630-1847 (904) 630-1316 (fax) http://generalcounsel.coj.com/ >>> "George Milev" 10/13/05 12:20 PM >>> Dear Mr. Makar, I just wanted to express my concerns regarding the second part of the proposed jury instruction on reasonableness in pip cases. It puts insurers in a lose/lose situation. Any amount awarded at trial to plaintiff will trigger entitlement to attorney’s fees which as we know is the real propellant behind pip cases. Also, the second part shifts the burden of proof to insurer to prove that amount allowed was reasonable when by law plaintiff has the burden of proof that amount charged was reasonable. In addition, the second part appears to be in conflict with the Darius and Sestile DCA cases. George Milev, Esquire 1 South Orange Ave., Ste. 301 Orlando, FL 32801 Ph. 407-649-9434

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"Scott Dutton" 09/16/2005 01:29 PM

To "Scott Makar" , cc , bcc Subject RE: PIP Jury Instructions

Thanks Scott. It was attached, but for some reason did not get out of the box on this end! SWD From: Scott Makar [mailto:[email protected]] Sent: Friday, September 16, 2005 1:27 PM To: [email protected]; Scott Dutton Cc: [email protected]; [email protected] Subject: RE: PIP Jury Instructions

Mr. Dutton: Thank you for your submission and thoughts. The verdict form you mentioned, however, was not attached to your e-mail and it would be helpful for us to review it. Would you mind emailing it as an attachment at your convenience. Thank you.

>>> "Scott Dutton" 09/16/05 12:09 PM >>> I am sure there has been much debate on that issue. The form of the verdict in PIP cases is very controversial, and can lead to expected results. For example, I am aware of a case (and maybe you are too) where the verdict just asked the jury to enter a reasonable amount which turned out to be the same as what the insurer paid. BUT, the verdict form did not provide, and there was not stipulation regarding set off. The court, therefore, ruled that the amount entered was the verdict, and was owed to the provider. That resulted in the provider actually getting far, far more than they billed, and was unsupported by any evidence. Nevertheless, that is the way the judgment was entered by the court! In any event, in my opinion the statute says a provider can only charge a reasonable amount. It also says the insurer shall pay 80% of a reasonable amount. the way many verdict forms are worded shifts the burden to the insurer to prove what they paid is reasonable, when it is not their burden at all. In fact, we take the position that the amount the insurer pays or paid is irrelevant to whether the provider's charge is reasonable.

Appendix D, Page 119

These are just my thoughts arising out of over 20 years of litigating these cases. SWD From: Judge Chris Altenbernd [mailto:[email protected]] Sent: Friday, September 16, 2005 12:02 PM To: Scott Dutton Cc: Scott Makar; [email protected]; [email protected] Subject: RE: PIP Jury Instructions I will forward this on to the committee. I can tell you that we discussed at length whether the answer is no, or a determination of the reasonable amount. We understand why a defense lawyer wants a simple no, but I think the committee is convinced that that is not the law. From: Scott Dutton [mailto:[email protected]] Sent: Friday, September 16, 2005 11:59 AM To: Judge Chris Altenbernd Subject: PIP Jury Instructions

Judge Altenbernd: I know you and a jury instruction committee have been working on, amongst other things, a PIP verdict form. We worked through this week in a jury trial in St. Pete. The trial judge sat in as I worked through it, and explored options with plaintiff's counsel. I am not sure whether it is appropriate to send you a copy of the form, but if not please simply erase the attachment without viewing it. My concern, as a defense attorney, is that I contend the reasonableness interrogatory should just be yes or no we the charges "reasonable". If the answer is no, the verdict should be for the defendant. I was also concerned about the set off language: however, we handled that by instruction and stipulation (similar to collateral sources) that the court would make any appropriate set off before entering judgment. Hope this is of help to some over the potentially perplexing conundrum of appropriate verdict forms in PIP cases. <>

Scott W. Dutton Board Certified Civil Trial Lawyer Haas, Dutton, Blackburn, Lewis, and Longley

Appendix D, Page 120

P.O. Box 440 1901 North 13th Street # 200 Tampa, Fl 33601 Phone: 813-247-2222 Cell: 813-495-5369 Fax: 813-229-3311 Email: [email protected] The sender of this confidential communication intends it to be privileged pursuant to applicable law. The sender of this message intends it only for the use of the individual or entity to which it is addressed and this message may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this message in error, please notify us immediately by telephone 813.247.2222 and destroy any and all contents. Thank you. [attachment "Verdict Form3.doc" deleted by Gerry Rose/The Florida Bar]

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AUTO OWNERS INS. CO. v. MARZULLI Cite as 788 So.2d 1031 (Fla.App. 2 Dist. 2001)

of authority to the arbitrator and agreed with the arbitrator regarding his scope of authority and affirmed the arbitration award. Our review is limited to the consideration of whether the arbitrator and the trial judge erred in determining the authority of the arbitrator to decide the issues before him. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989). As the court in Noriega held: Once the parties agreed to submit their dispute to arbitration under the Florida Arbitration Code, they were bound by the decision of the arbitrator. No showing has been made that the arbitrator acted outside his jurisdiction. Absent that showing, the award cannot be vacated under section 682.13(1)(c). 542 So.2d at 1329. We find that the record supports the conclusions of the arbitrator and trial judge as to the arbitrator’s authority to decide the issues before him. Affirmed. PARKER, A.C.J., and DAVIS, J., concur.

, AUTO OWNERS INSURANCE COMPANY, Petitioner, v. John MARZULLI, Respondent. No. 2D00–864. District Court of Appeal of Florida, Second District.

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protection (PIP) benefits discontinued by the insurer. The County Court, Pinellas County, entered judgment in favor of the insurer. Insured appealed. The Circuit Court, sitting in an appellate capacity, reversed and remanded. Certiorari was granted. The District Court of Appeal held that chiropractor’s opinion entitled insurer to discontinue future benefits. Quashed and remanded. 1. Insurance O2831(1) Chiropractor’s opinion based on an independent medical examination that the insured had reached maximum medical improvement and that further treatment was not medically necessary and would likely aggravate injuries and perpetuate continued symptoms entitled automobile insurer to discontinue future personal injury protection (PIP) benefits. West’s F.S.A. § 627.736(1)(a), (7)(a). 2. Insurance O2831(1) Reasonableness and necessity of treatment are essential elements of an insured’s case to recover personal injury protection (PIP) benefits. West’s F.S.A. § 627.736(1)(a). 3. Insurance O2853 An insured seeking personal injury protection (PIP) benefits bears the burden to prove the reasonableness and necessity of treatment. West’s F.S.A. § 627.736(1)(a). 4. Appeal and Error O91(2) Circuit court sitting in its appellate capacity was required to follow decision by district court of appeal on point.

March 14, 2001. Insured brought action against automobile insurer to recover personal injury

Rex E. Delcamp and Cate MacGlashan of DelCamp & Siegel, St. Petersburg, for Petitioner.

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788 SOUTHERN REPORTER, 2d SERIES

Arthur Liebling, Clearwater, for Respondent. PER CURIAM. [1] Petitioner, Auto Owners Insurance Company (Auto Owners), seeks certiorari review of the circuit court’s opinion, rendered while sitting in its appellate capacity, that reverses the county court’s final judgment entered in its favor after a jury trial. The circuit court’s opinion, issued by a single judge and not by a three-judge panel, remanded the matter for entry of partial summary judgment in favor of respondent, John Marzulli, on the issue of entitlement to benefits under a personal injury protection (PIP) policy. The circuit court also entered an order granting Mr. Marzulli’s motion for attorney’s fees. We conclude that the circuit court applied the incorrect law in reversing the county court’s final judgment. Moreover, the circuit court disobeyed clearly established principles of law when it issued a written opinion directly and expressly conflicting with dispositive precedent from the Fourth District. See Omni Ins. Co. v. Special Care Clinic, 708 So.2d 314 (Fla. 2d DCA 1998) (holding that circuit court, sitting in its appellate capacity, must follow ruling of any unconflicted extra-jurisdiction district court of appeal opinion on point). We accordingly grant the petition for writ of certiorari. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Mr. Marzulli was involved in an automobile accident in June 1995. He was insured at that time pursuant to no-fault coverage he had purchased from Auto Owners. Mr. Marzulli sought chiropractic treatment after the accident at Fleming Chiropractic Clinic. Auto Owners paid PIP benefits for sixty-three separate dates of chiropractic treatment.

In November 1995, Auto Owners requested that Mr. Marzulli attend an independent medical examination by Dr. D.J. Jeserski, a chiropractic physician. After this examination took place, Dr. Jeserski submitted a report which concluded that Mr. Marzulli had reached maximum medical improvement and that further chiropractic treatment was not medically necessary and would likely ‘‘aggravate injuries and perpetuate continued symptoms.’’ On December 8, 1995, Auto Owners sent a copy of Dr. Jeserski’s report to Mr. Marzulli with a letter stating that it would no longer accept bills for chiropractic treatment after December 20, 1995. Mr. Marzulli continued to undergo chiropractic treatment with Dr. Fleming and submitted bills for treatment after December 28, 1995, which Auto Owners declined to pay. In June 1996, Mr. Marzulli brought suit in county court claiming that Auto Owners had breached the insurance contract by failing to pay covered PIP claims for thirty-seven separate dates of chiropractic treatment after December 28, 1995. In June 1997, Mr. Marzulli moved for partial summary judgment as to liability. He argued that section 627.736(7)(a), Florida Statutes (1997), provided a procedure whereby an insurer may, under certain circumstances, withdraw payment for medical care that has been rendered. Mr. Marzulli argued, however, that the statute included no provision which allowed for termination of future benefits. Section 627.736(7)(a) is entitled ‘‘Mental and Physical Examination of Injured Person; Reports’’ and provides, in part: Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer,

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AUTO OWNERS INS. CO. v. MARZULLI Cite as 788 So.2d 1031 (Fla.App. 2 Dist. 2001)

submit to mental or physical examination by a physician or physiciansTTTT An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection benefits, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. The county court denied the motion for summary judgment and a two-day jury trial was held. The jury returned a verdict for Auto Owners, finding that the chiropractic treatment rendered to Mr. Marzulli after December 28, 1995, was not reasonable, necessary, or related to the accident. The county court entered final judgment in favor of Auto Owners. Mr. Marzulli appealed to the circuit court. The circuit court reversed the final judgment and remanded the matter. It held that the county court erred in denying Mr. Marzulli’s motion for partial summary judgment as to liability because section 627.736(7)(a) applied only to past medical treatment and could not be used to withdraw authorization for future treatment. The circuit court found the language of the statute to be clear. According to the circuit court, the language referred only to past treatment, not to treatment that might be sought later. The circuit court acknowledged that use of a report helps an insurer evaluate the reasonableness or necessity of treatment presently authorized. However, the circuit court stated that a 1.

The county court also certified to the Fourth District the question of ‘‘IN AN ACTION FOR PIP BENEFITS, WHERE A TRIAL COURT CHARGES THE JURY USING THE LANGUAGE OF SECTION 627.736(7)(a), MUST THE COURT FURTHER DEFINE THE

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report addressing future treatment would not accomplish the purpose of the report requirement. If the insurer were allowed to terminate future medical care on the basis of a report, the circuit court implied that the insured would have no way of seeking medical treatment resulting from future, perhaps vastly changed circumstances. The circuit court subsequently entered an order granting Mr. Marzulli’s motion for attorney’s fees. In reaching its conclusion, the circuit court made no mention of the Fourth District’s decision in Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998). In Derius, the county court certified to the Fourth District the following question: 1 TO RECOVER MEDICAL BENEFITS IN A LAWSUIT UNDER SECTION 627.736, FLORIDA STATUTES (SUPP. 1994), MUST THE PLAINTIFF PROVE THE GREATER WEIGHT OF THE EVIDENCE THAT THE EXPENSES SOUGHT ARE BOTH REASONABLE AND FOR NECESSARY MEDICAL SERVICES? 723 So.2d at 271. The Fourth District answered the question in the affirmative. In Derius, appellant was a passenger in a car driven by her husband, which was rear-ended. Appellant’s chiropractor diagnosed a soft tissue injury in her neck and began treating her on March 2, 1994. Allstate, appellant’s nofault insurer, initially paid for the chiropractic treatments. After three months, Allstate hired another chiropractor to perform a physical examination on appellant. TERM ‘NECESSARY’ AS USED IN THE STATUTE?’’ Derius v. Allstate Indem. Co., 723 So.2d 271, 271 (Fla. 4th DCA 1998). This second question is not dispositive of the issue raised in this certiorari proceeding.

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788 SOUTHERN REPORTER, 2d SERIES

After the examination, the doctor reported his conclusions to Allstate as follows: [B]ased on my examination today, I am unable to establish the presence of any significant clinical entity which would require continued chiropractic careTTTT Due to the lack of any clinical support for her subjective complaints, as well as the existence of the functional overlay and the reported lack of subjective progress, I am not recommending your consideration of any additional chiropractic care.

ments of a plaintiff’s case. Id. The Fourth District held ‘‘[t]here is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.’’ Id. The court then concluded that ‘‘Allstate’s reliance on the IME chiropractor’s letter to withdraw payment to [appellant’s] chiropractor was in compliance with the requirements of section 627.736(7)(a).’’ Id. at 275.

723 So.2d at 272.

[4] We conclude that the Fourth District’s holding in Derius is dispositive as applied to the facts of this case. Like the insurer did in Derius, Auto Owners terminated authorization of further, on-going treatments by Mr. Marzulli’s chiropractor based on a report from another chiropractor stating that further treatment was not medically necessary and would likely ‘‘aggravate injuries and perpetuate continued symptoms.’’ Auto Owners’ reliance on this report to withdraw payment to Dr. Fleming was in compliance with the requirements of section 627.736(7)(a). The circuit court in this case was required to follow Derius. See Omni Ins. Co., 708 So.2d 314 (holding that circuit court, sitting in its appellate capacity, must follow ruling of any unconflicted extra-jurisdiction district court of appeal opinion on point). Its failure to do so resulted in an application of the incorrect law.

As a result of this recommendation, Allstate notified appellant that it would not pay for any chiropractic treatment after June 7, 1994. Appellant continued to receive treatment from her chiropractor until September 1994. She then sued under the no-fault statute seeking, among other things, to recover for her chiropractic treatments given after June 7, 1994. The trial court framed the issue for the jury as ‘‘whether any of the chiropractic treatment after June 7, 1994 was necessary and, if so, the total reasonable charges for said chiropractic care.’’ Id. at 272. The jury returned a verdict for Allstate upon which judgment was entered. [2, 3] The Fourth District affirmed. Id. It held that under section 627.736(1)(a), Florida Statutes (Supp.1994),2 an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary. Id. In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential ele2.

Section 627.736(1)(a), Florida Statutes (Supp.1994), provides, in part, that PIP benefits include ‘‘[e]ighty percent of all reasonable expenses for necessary medical TTT services.’’

3. The circuit court declined to address the other issues raised by Mr. Marzulli on appeal

We accordingly grant the petition for writ of certiorari. We quash the circuit court’s opinion and remand this case to the circuit court for consideration of the other issues raised by Mr. Marzulli on appeal.3 concluding that its decision on the issue under review rendered the additional issues moot. We decline Mr. Marzulli’s invitation to decide those issues for the first time in this certiorari proceeding.

Appendix D, Page 127

RNK FAMILY LTD. v. ALEXANDER–MITCHELL

Fla.

Cite as 788 So.2d 1035 (Fla.App. 2 Dist. 2001)

We also quash the circuit court’s order awarding appellate attorney’s fees to Mr. Marzulli. BLUE, A.C.J., and WHATLEY and GREEN, JJ., concur.

, RNK FAMILY LIMITED PARTNERSHIP, Appellant, v. ALEXANDER–MITCHELL ASSOCIATES, a dissolved Florida general partnership, A.G. Rappaport, And Mitchell E. Bentley, Appellees. No. 2D99–5013. District Court of Appeal of Florida, Second District. March 16, 2001.

Purchaser’s assignee brought breach of contract action against vendor arising from the sale of commercial property. The Circuit Court, Hillsborough County, Gregory P. Holder, J., dismissed complaint. Assignee appealed. The District Court of Appeal, Green, J., held that a reasonable purchaser, relying on warranty provision in contract, would anticipate that doctrine of caveat emptor was circumvented, and thus, issue of whether $93,000 wastewater connection would negatively affect property’s value was for the fact-finder. Reversed.

1035

1. Appeal and Error O893(1) The standard of review was de novo in a case dealing solely with the warranty provision of contract for the purchase of real property. 2. Contracts O323(1) A reasonable purchaser, relying on warranty provision in contract for purchase of commercial property, would anticipate that, at least as to property value, the doctrine of caveat emptor was circumvented, and thus, issue of whether county’s notice, within eight months of purchase, that a wastewater connection would cost purchaser over $93,000 would negatively affect the property’s value was for the fact-finder, in action for breach of contract, where vendor warranted that there were no facts known to vendor ‘‘affecting the value’’ that were not ‘‘readily observable’’ or ‘‘disclosed.’’ 3. Vendor and Purchaser O37(1) Caveat emptor is the current law in state when generally dealing with the sale of commercial property. 4. Vendor and Purchaser O349 Allegation in complaint that purchaser of commercial property assigned its breach-of-contract claim to a family partnership was not fatal to the complaint.

Ricky L. Thacker of Michael J. McDermott, P.A., Brandon, for Appellant. Gregory E. Mierzwinksi of Morgan, Padgett & Mierzwinksi, P.A., Tampa, for Appellees. GREEN, Judge. RNK Family Limited Partnership appeals the trial court’s order granting appellee, Alexander–Mitchell Associates’, mo-

Appendix D, Page 128

DERIUS v. ALLSTATE INDEM. CO. Cite as 723 So.2d 271 (Fla.App. 4 Dist. 1998)

Fla.

271

3. Account Stated O19(1) Rose Marie DERIUS, Appellant, v. ALLSTATE INDEMNITY COMPANY, Appellee.

If a health-care provider sues on an account stated and establishes the necessary elements, the burden shifts to the debtor to show that the account is incorrect due to fraud, mistake, or error.

No. 97–0126. District Court of Appeal of Florida, Fourth District. June 10, 1998. Rehearing Denied July 10, 1998. Insured brought action against automobile insurer to recover personal injury protection (PIP) benefits for chiropractic treatments. The Fifteenth Judicial Circuit Court, Palm Beach County, Paul O. Moyle, J., entered judgment on jury verdict in favor of insurer. Insured appealed. The District Court of Appeal, Gross, J., held that: (1) reasonableness and necessity are essential elements of an insured’s case to recover PIP benefits equal to eighty percent of all reasonable expenses for necessary medical services, and (2) trial court was not required to define ‘‘necessary.’’ Affirmed. 1. Insurance O2831(1) Reasonableness and necessity are essential elements of an insured’s case to recover personal injury protection (PIP) benefits equal to eighty percent of all reasonable expenses for necessary medical services; automobile insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary. F.S.1994 Supp., § 627.736(1)(a). 2. Insurance O2853 Nothing in the statute requiring personal injury protection (PIP) benefits equal to eighty percent of all reasonable expenses for necessary medical services suggests a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the insurer to prove that a proposed charge was unreasonable or that a given service was not necessary. F.S.1994 Supp., § 627.736(1)(a).

4. Insurance O3579 Trial court was not required to define the term ‘‘necessary’’ in instructing jury on claim for personal injury protection (PIP) benefits equal to eighty percent of all reasonable expenses for necessary medical services. F.S.1994 Supp., § 627.736(1)(a). 5. Insurance O2856 Whether a given medical service is ‘‘necessary’’ is a question of fact for the jury on a claim for personal injury protection (PIP) benefits equal to eighty percent of all reasonable expenses for necessary medical services. F.S.1994 Supp., § 627.736(1)(a).

K. Jack Breiden of Breiden & Associates, Naples, for appellant. Rosemary Wilder, and Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale and Gary Dickstein of Dickstein, Richardson & Reynolds, P.A., West Palm Beach, for appellee. GROSS, Judge. The county court has certified two questions to this court pursuant to Florida Rule of Appellate Procedure 9.160(d), which we rephrase as follows: TO RECOVER MEDICAL BENEFITS IN A LAWSUIT UNDER SECTION 627.736, FLORIDA STATUTES (SUPP. 1994), MUST THE PLAINTIFF PROVE BY THE GREATER WEIGHT OF THE EVIDENCE THAT THE EXPENSES SOUGHT ARE BOTH REASONABLE AND FOR NECESSARY MEDICAL SERVICES? IN AN ACTION FOR PIP BENEFITS, WHERE A TRIAL COURT CHARGES THE JURY USING THE LANGUAGE OF SECTION 627.736(1)(a), MUST THE COURT FURTHER DEFINE THE

Appendix D, Page 129

272

Fla.

723 SOUTHERN REPORTER, 2d SERIES

TERM ‘‘NECESSARY’’ AS USED IN THE STATUTE? We have accepted jurisdiction pursuant to Rules 9.030(b)(4)(A) and 9.160(d). We answer the first question in the affirmative and the second in the negative. Appellant, Rose Marie Derius, was a passenger in a car driven by her husband, which was rear-ended on February 5, 1994. That day, she was treated at a hospital emergency room and released. Her chiropractor diagnosed a soft tissue injury in her neck and began treating her on March 2, 1994.

Company, are whether any of the chiropractic treatment after June 7, 1994 was necessary and, if so, the total reasonable charges for said chiropractic care.

Allstate, Derius’ insurer under the Florida Motor Vehicle No–Fault Law,1 initially paid for the chiropractic treatments. After three months, Allstate hired another chiropractor to perform a physical examination on Derius. After the examination, the doctor reported his conclusions to Allstate as follows: [B]ased on my examination today, I am unable to establish the presence of any significant clinical entity which would require continued chiropractic care. In addition, subjectively the patient states that she has not improved despite three months of 3–times per week chiropractic care. Due to the lack of any clinical support for her subjective complaints, as well as the existence of the functional overlay and the reported lack of subjective progress, I am not recommending your consideration of any additional chiropractic care. As a result of this recommendation, Allstate notified Derius that it would not pay for any chiropractic treatment after June 7, 1994. Derius continued to treat with her chiropractor until September, 1994. Derius filed suit under the no-fault statute in the county court seeking, inter alia, to recover for her chiropractic treatments under section 627.736(1)(a), Florida Statutes (Supp.1994). Another issue developed at trial was whether Allstate should have paid $75 for an interim examination, instead of $68. In its instructions, the trial court framed the issues for the jury: The issues for your determination on the claims of the Plaintiff, Rose Marie Derius, against Defendant, Allstate Indemnity

However, if the greater weight of the evidence does support the claim of Plaintiff, Rose Marie Derius, then your verdict should be for Plaintiff, Rose Marie Derius, and against Defendant, Allstate Indemnity Company, for the total amount of those reasonable and necessary chiropractic expenses incurred after June 7, 1994 and for the interim examination dated May 11, 1994.

1.

One additional issue for your determination is what is the total reasonable charge for the interim examination of May 11, 1994. If the greater weight of the evidence does not support the claim of Plaintiff, Rose Marie Derius, then your verdict should be for Defendant, Allstate Indemnity Company.

After a lengthy trial, the jury returned a verdict for Allstate on both issues. [1] Section 627.736(1), Florida Statutes (Supp.1994), requires an insurer to provide personal injury protection (PIP) benefits for ‘‘loss sustained TTT as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle.’’ Personal injury protection benefits include ‘‘[e]ighty percent of all reasonable expenses for necessary medical TTT services.’’ § 627.736(1)(a), Fla. Stat. (Supp. 1994). [2] Under this statute, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary. In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case. There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.

§§ 627.730–627.7405, Florida Statutes (1993).

Appendix D, Page 130

DERIUS v. ALLSTATE INDEM. CO. Cite as 723 So.2d 271 (Fla.App. 4 Dist. 1998)

Fla.

273

Derius points to the language of section 627.736(7)(a), which provides that [a]n insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. This language is part of the independent medical examination requirement of section 627.736(7) which is ‘‘intended to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid.’’ U.S. Security Ins. Co. v. Silva, 693 So.2d 593, 596 (Fla. 3d DCA 1997). The quoted language from section 627.736(7)(a) sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective. In this procedural hurdle, we do not discern a legislative intent to alter the burden of proof in a lawsuit for PIP benefits. The cases cited by Derius are distinguishable. Mutual Life Ins. Co. of New York v. Ewing, 151 Fla. 661, 10 So.2d 316 (1942), involved an indemnity policy of insurance for total and permanent disability. The insurer recognized the existence of the insured’s permanent and total disability and made disability payments from 1931 until October, 1940,

when it discontinued payments and demanded that the insured resume paying premiums. The issue at trial was whether the insured continued to be permanently and totally disabled in October, 1940. In such a case, the supreme court stated the rule allocating the burden of proof:

One ground upon which the patient in Public Health Trust of Dade County v. Holmes, 646 So.2d 266 (Fla. 3d DCA 1994), defended was that the services rendered were not medically necessary. The trial court placed the burden of proof on the hospital to prove the medical necessity of the services rendered and granted a directed verdict when the hospital failed to produce sufficient evidence on that issue. The hospital argued that the written guaranty relieved it of the responsibility to prove medical necessity. The third district reversed, holding that the issue of medical necessity was an affirmative defense and that the burden of proof was therefore on the defendant patient. 646 So.2d at 267. The opinion does not quote the language of the guaranty,

so we cannot gauge how the wording of the guaranty controlled the result. We question whether ‘‘medical necessity’’ is properly characterized as an affirmative defense in all cases where a provider sues a patient over a medical bill. In an action based on express or implied contract for medical services, the performance of only medically necessary services would seem to be at least an implied condition where not expressly addressed. On the other hand, if a provider sues on an account stated and establishes the necessary elements of the cause of action, the burden shifts to the defendant to show that the account is incorrect due to fraud, mistake or

2.

Where TTT it is established, as in this case, that a permanent and total disability existed within the purview of the policy and the insurer seeks relief from continuation of payment of indemnities theretofore paid under and within the purview of the policy[,] the burden is on the insurer to establish by the preponderance of the evidence that the condition of the insured is such that he no longer comes within the purview of the policy in this regard. Id. at 318; see also Aetna Life Ins. Co., Inc. v. Fruchter, 283 So.2d 36, 37 (Fla.1973). Unlike Ewing, this case does not involve a total and permanent disability policy. Nothing in the Florida Motor Vehicle No–Fault Law suggests a legislative intent that the rule in Ewing applies in PIP lawsuits to the issue of the termination of payments to a treating physician. Ewing did not involve an insurance policy that was required to comply with detailed statutory parameters. [3] Similarly, Public Health Trust of Dade County v. Holmes, 646 So.2d 266 (Fla. 3d DCA 1994), did not deal with a PIP scenario; rather, the plaintiff hospital sued a patient on a written guaranty of payment to recover for services rendered in a critical care unit. That case’s characterization of ‘‘medical necessity’’ as an affirmative defense, even if correct,2 is not controlling here,

Appendix D, Page 131

274

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723 SOUTHERN REPORTER, 2d SERIES

where the elements of a plaintiff’s case are set forth in a statute. Finally, Exhibitor, Inc. v. Nationwide Mut. Fire Ins. Co., 494 So.2d 288, 289 (Fla. 1st DCA 1986) is inapplicable, since this is not a case where the insurer is trying to show that a loss was due to a cause that was excepted under the policy. See also State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986). We conclude that the trial court correctly charged the jury on the plaintiff’s burden of proof. [4] As to the second certified question, we find no error in the trial court’s charge to the jury. The instruction correctly stated the law applicable to the facts in evidence. See Lynch v. McGovern, 270 So.2d 770, 771 (Fla. 4th DCA 1972); Rivero v. Mansfield, 584 So.2d 1012, 1014 (Fla. 3d DCA 1991), quashed in part, approved in part, 620 So.2d 987 (Fla.1993). The decision regarding Derius’ proposed instructions on the issue of necessity was within the discretion of the trial court, which should not be disturbed on appeal absent prejudicial error resulting in a ‘‘miscarriage of justice,’’ a state of affairs that did not occur in this case. See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla. 1990). Derius is correct that the PIP statute does not define ‘‘necessary medical TTT services.’’ That very language has been a part of the statute since it was enacted in 1971. Ch. 71– 252, § 7, at 1359, Laws of Fla. In Palma v. State Farm Fire & Cas. Co., 489 So.2d 147, 148–49 (Fla. 4th DCA 1986), we observed that in determining what constitutes a ‘‘necessary medical service,’’ the statute is construed ‘‘liberally in favor of the insured.’’ We reasoned that [t]he broad scope of medical services covered by the No–Fault Act is highlighted by the inclusion of benefits for remedial treatment and services for an injured person who relies upon spiritual means through prayer alone for healing in accordance with his religious beliefs. Id. at 149; see also Hunter v. Allstate Ins. Co., 498 So.2d 514, 515–16 (Fla. 5th DCA 1986). error. See Robert C. Malt & Co. v. Kelly Tractor

[5] Whether a given medical service is ‘‘necessary’’ under section 627.736(1)(a) is a question of fact for the jury. Donovan v. State Farm Mut. Auto. Ins. Co., 560 So.2d 330, 331 (Fla. 4th DCA 1990), held that a plaintiff could establish both the reasonableness of charges and the necessity of a medical service without expert testimony. Other cases have noted that the ‘‘necessity’’ of a medical service may also be proven through expert testimony. See Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988); Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506, 507 (Fla. 1st DCA 1978). The current state of the law is that the issue of necessity in a PIP case is decided by factfinders on a case by case basis, depending on the specific evidence introduced at trial and the arguments of counsel. The absence of a specific statutory definition accords each judge or jury broad discretion in arriving at a decision. We do not think it is proper to require further definition of a term that the legislature has left as is for 27 years. The legislature is capable of defining ‘‘medically necessary’’ or ‘‘palliative care’’ where it chooses to do so. See §§ 440.13(1)(m) and (o), Fla. Stat. (Supp.1994). By opting not to define the phrase ‘‘necessary medical TTT services’’ with precision, the legislature has created a litigation model that vests great discretion in the factfinder, with the potential that different judges and juries will arrive at different results on almost identical facts. If a court were to require in every case a specific definition of a phrase that the legislature has left open, it would be rewriting each of those statutes and altering the dynamics of trial, without any indication that such a result was one that the legislature intended. The situation presented in this case is analogous to that arising under another portion of the No–Fault Law, section 627.737(2)(b), Florida Statutes (1993), which uses the phrase ‘‘[p]ermanent injury within a reasonable degree of medical probability’’ without defining it. The standard jury instructions do not attempt to define the terms. In its note explaining the absence of a jury Co., 518 So.2d 991, 992 (Fla. 4th DCA 1988).

Appendix D, Page 132

SUNBEAM TELEVISION CORP. v. STATE

Fla.

Cite as 723 So.2d 275 (Fla.App. 3 Dist. 1998)

instruction on permanency, the Supreme Court Committee on Standard Jury Instructions in Civil Cases observed: Section 627.737(2), Florida Statutes (1991), does not define ‘‘permanent injury within a reasonable degree of medical probability’’ that is established by expert testimony. Morey v. Harper, 541 So.2d 1285 (Fla. 1st DCA), review denied, 551 So.2d 461 (Fla. 1989); Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984); Horowitz v. American Motorist Ins. Co., 343 So.2d 1305 (Fla. 2d DCA 1977); see Bohannon v. Thomas, 592 So.2d 1246 (Fla. 4th DCA 1992). Therefore, the instructions do not attempt to define the terms, and leave their explanation to the testimony of the experts and argument of counsel. See Rivero v. Mansfield, 584 So.2d 1012 (Fla. 3d DCA 1991), quashed in part, approved in part, 620 So.2d 987 (Fla.1993); see contra Philon v. Reid, 602 So.2d 648 (Fla. 2d DCA 1992), review granted, 614 So.2d 503 (Fla.), case dismissed, 620 So.2d 762 (Fla.1993). Fla.Std.Jury Instr. (Civ.) 6.1, Comment 3. The Supreme Court authorized the use of the Committee’s proposed instruction on section 627.737(2). Standard Jury Instructions—Civil Cases (1.0, 6.1d, MI8), 613 So.2d 1316 (Fla.1993). Acknowledging the approach taken by the Committee in a similar situation, we answer the second certified question by holding that in a jury charge, a trial court is not required to define the term ‘‘necessary.’’ The trial court correctly and adequately charged the jury in this case. On the remaining issues, we find no error in the trial court’s rulings on Derius’ motions for directed verdict and mistrial. Allstate’s reliance on the IME chiropractor’s letter to withdraw payment to Derius’ chiropractor was in compliance with the requirements of section 627.736(7)(a). AFFIRMED.

275

SUNBEAM TELEVISION CORPORATION, d/b/a WSVN/Channel 7, and Post– Newsweek Stations Florida, Inc., d/b/a WPLG/Channel 10, Petitioners, v. STATE of Florida and Humberto Hernandez, Respondents. No. 98–1969 District Court of Appeal of Florida, Third District. Aug. 4, 1998. Opinion Adopting Panel Dissent on Grant of Rehearing En Banc Nov. 4, 1998. Rehearing Denied Jan. 13, 1999.

Television broadcasters filed petition for certiorari to quash order by the Circuit Court, Dade County, Roberto M. Pineiro, J., prohibiting video photography of prospective or seated jurors in high-profile criminal trial. The District Court of Appeal, Sorondo, J., held that judge’s generalized concerns regarding jurors were sufficient to warrant prohibiting disclosure of jurors’ names and addresses. On rehearing en banc, the District Court of Appeal held that: (1) judge’s concerns were sufficient to support court order prohibiting video photography of jurors, but (2) prohibiting publication of juror information that would be disclosed in open court would be unconstitutional prior restraint. Petition denied. Cope, J., filed written dissent on original submission. Sorondo, J., filed dissenting opinion on rehearing, in which Goderich, J., joined.

POLEN and STEVENSON, JJ., concur. 1. Jury O144

,

Trial judge’s generalized concerns for jurors in high-profile case were sufficient to warrant prohibiting disclosure of jurors’ names and addresses.

Appendix D, Page 133

1244

Fla.

821 SOUTHERN REPORTER, 2d SERIES

I find nothing in section 44.103 or rule 1.820(h) which even remotely suggests that the decision of the arbitration board cannot be enforced against a non-consenting party. In fact, the rule and statute suggest just the opposite. Case law on point supports the actions of the trial court. In Klein v. J.L. Howard, Inc., 600 So.2d 511 (Fla. 4th DCA 1992), the court held that the untimeliness of the rendition of the award had no effect on the non-discretionary duty of the trial court to enforce the arbitration award on the failure to move for trial de novo within 20 days. In Department of Business Regulation v. Hyman, 417 So.2d 671 (Fla.1982), on remand, 431 So.2d 603 (Fla. 3d DCA 1983), the court held that an agency’s untimely rendering of a final order did not impair the enforceability of the order, where the delay did not result in an impairment of either the fairness of the proceedings or the correctness of the action. In this case, no suggestion is made that the decision of the arbitrators was unfair. In the present case, any irregularities in the proceeding did not impair Mr. Gallardo’s rights. He attended the arbitration and had more than 20 days after the receipt of the arbitration award in which to move for a trial de novo. Had he done so, the arbitration decision would have been meaningless. Enforcement of the arbitration award by entry of a final judgment in favor of the defendants was therefore mandatory. Sympathy for the plaintiff should not be allowed to trump the rule of law. The final order of the trial court should be affirmed.

,

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. Judith SESTILE and Julie Barrett, Appellees. No. 2D01–1853. District Court of Appeal of Florida, Second District. July 31, 2002.

Insureds filed a declaratory action, asking the court to find that automobile insurer’s use of a computer-generated database to determine the reasonableness of medical bills violated law governing required personal injury protection benefits and the insurance contract. The Circuit Court for Hillsborough County, Sam D. Pendino, J., ruled that insurer could not decline to pay less than the full amount of a healthcare provider’s bill based solely on the computer database, but could consider the database together with other appropriate facts, and insurer appealed. The District Court of Appeal, Northcutt, J., held that it was not court’s function to determine, across the board, whether automobile insurer’s internal method of gauging reasonableness of provider’s bill based on computer database complied with statute requiring personal injury protection (PIP) carriers to pay ‘‘reasonable’’ expenses for necessary medical services. Reversed.

1. Statutes O188 When not specifically defined, common words in statute should be construed in their ordinary sense.

Appendix D, Page 134

STATE FARM MUT. AUTO. INS. CO. v. SESTILE Cite as 821 So.2d 1244 (Fla.App. 2 Dist. 2002)

2. Insurance O2853, 2856 It was not court’s function to determine, across the board, whether automobile insurer’s internal method of gauging reasonableness of provider’s bill based on computer database complied with statute requiring personal injury protection (PIP) carriers to pay ‘‘reasonable’’ expenses for necessary medical services, and instead, it was for fact-finder to determine whether insurer’s evaluation of medical bills fit definition of ‘‘reasonable’’ on a case-by-case basis; in some cases, computer database might accurately assess reasonableness of bill, and in others, it might not, but this was the insured’s burden to prove. West’s F.S.A. § 627.736(1)(a). See publication Words and Phrases for other judicial constructions and definitions.

3. Insurance O2853, 3543 If a personal injury protection (PIP) insurer refuses to pay medical expenses that an insured believes are reasonable, the insured may sue, but he bears the burden of establishing that the charges are, in fact, reasonable. West’s F.S.A. § 627.736(1)(a).

John W. Weihmuller and Anthony J. Russo of Butler Burnette Pappas, Tampa, for Appellant. Alan F. Wagner of Wagner, Vaughan & McLaughlin, P.A., Tampa, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellees. 1.

State Farm raised a second issue in this appeal, arguing that if the circuit court’s judgment could be read to require it to disclose the data and methodology underlying its determination of reasonableness, that decision was error. Sestile and Barrett admit that they did not seek this relief and that the

Fla.

1245

NORTHCUTT, Judge. Judith Sestile and Julie Barrett are insureds under State Farm automobile insurance policies providing personal injury protection and medical payments insurance. Their policies require State Farm to pay ‘‘80% of the reasonable charges incurred for necessary’’ medical procedures because of ‘‘an accident resulting from the ownership, maintenance or use of a motor vehicle.’’ See also § 627.736(1)(a), Fla. Stat. (1995) (requiring PIP carriers to pay ‘‘reasonable expenses for necessary medical TTT services’’ within thirty days of being furnished with written notice of a covered loss and the amount of the loss). Sestile and Barrett filed a declaratory action asking the circuit court to find that State Farm’s use of a computer-generated database to determine the reasonableness of medical bills violated section 627.736 and the insurance contract. The court ruled that State Farm could not decline to pay less than the full amount of a healthcare provider’s bill based solely on the computer database, but could consider the database together with other appropriate facts. In so ruling, it determined that relying solely on the database would violate section 627.736 and the insurance contract. For the reasons explained below, we reverse the declaratory judgment.1 [1] As noted, both section 627.736 and State Farm’s policy use the terms ‘‘reasonable’’ expenses or charges for ‘‘necessary’’ medical services. Yet neither the policy nor the statute declares how an insurer is to make this determination.2 When not judgment does not grant it. need not address this issue. 2.

Therefore, we

Because the terms of the policy are basically identical to section 627.736, Florida Statutes (1995), we will confine our discussion to

Appendix D, Page 135

1246

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821 SOUTHERN REPORTER, 2d SERIES

specifically defined, common words such as ‘‘reasonable’’ should be construed in their ordinary sense. Citizens of Fla. v. Pub. Serv. Comm’n, 425 So.2d 534 (Fla.1982). Indeed, in Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998), the district court considered the issue of whether the trial court should define the term ‘‘necessary’’ in section 627.726 for the jury. As the Fourth District noted: The legislature is capable of defining ‘‘medically necessary’’ or ‘‘palliative care’’ where it chooses to do so. By opting not to define the phrase ‘‘necessary medical TTT services’’ with precision, the legislature has created a litigation model that vests great discretion in the fact finder, with the potential that different judges and juries will arrive at different results on almost identical facts.

reasonableness of a medical provider’s bill; in other cases, it may be far from the mark. But this is the insured’s burden to prove. Presumably, insurance companies will be deterred from making inaccurate assessments of reasonableness by the penalty they face if they lose in court—payment of their policyholders’ legal fees. See § 627.736(8), .428. Reversed. FULMER and KELLY, JJ., Concur.

,

723 So.2d at 274 (citation omitted). [2] So it is in this case. If the legislature has chosen not to define the term ‘‘reasonable,’’ it is not a court’s function to determine, across the board, that an insurer’s internal method of gauging reasonableness does or does not comply with the statute. The fact-finder must construe the word ‘‘reasonable’’ and determine whether the insurance company’s evaluation of medical bills fits the definition on a caseby-case basis. [3] Our decision is consistent with the nature of PIP litigation. If an insurer refuses to pay medical expenses that an insured believes are reasonable, the insured may sue, but he or she bears the burden of establishing that the charges are, in fact, reasonable. See Auto Owners Ins. Co. v. Marzulli, 788 So.2d 1031, 1034 (Fla. 2d DCA 2001) (agreeing with Derius, 723 So.2d at 272). In some cases, a computer database may accurately assess the whether use of the computer database violates

Shannon D. FOWLER, O.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF OPTOMETRY, Appellee. No. 1D01–1908. District Court of Appeal of Florida, First District. July 31, 2002.

Optometrist appealed final order of the Board of Optometry, Department of Health, imposing discipline and administrative fine. The District Court of Appeal, Browning, J., held that Board of Optometry should have stated reasons for overruling ALJ’s recommendations. Affirmed in part, reversed in part, and remanded. the statute.

Appendix D, Page 136

Proposed ‘PIP’ jury instructions

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October 15, 2005 Proposed ‘PIP’ jury instructions The Supreme Court Committee on Standard Jury Instructions in Civil Cases is proposing an instruction and verdict form for claims for personal injury protection (PIP) medical benefits, which are reproduced in full below as well as online at www.floridabar.org. Interested persons may provide comments on the proposals by December 15, but are encouraged to submit them by November 1 for consideration at the committee’s meeting on November 3-4. All comments should be sent to the committee chair, Scott D. Makar, Office of General Counsel, 117 West Duval St., Suite 480, Jacksonville 32202-5721 or via e-mail at [email protected] MI 13 CLAIM FOR PERSONAL INJURY PROTECTION BENEFITS (PIP) (Medical Benefits Only) a. Issues: (Plaintiff) seeks personal injury benefits from (Defendant) for [a medical service] [medical services]. (Plaintiff) is entitled to recover benefits if the service[s] is [are] related to the accident, the service[s] is [are] medically necessary, and the charge[s] for the service[s] is [are] reasonable. [Give this preemptive instruction only where rulings or stipulations have altered the number of issues to be proven.] In this case, there is no dispute that (the service[s] is [are] related to the accident) [and] (that the service [s] is [are] medically necessary) [and] (that the charge[s] is [are] reasonable), but there is dispute over (whether the service[s] is [are] related to the accident) [and] (whether the service[s] is [are] medically necessary) [and] (whether the charge[s] for the service[s] is [are] reasonable). [To be given in all cases. Alter numbering where required due to rulings or stipulations.] Therefore, on this claim for personal injury benefits, you must decide the following: The first issue is whether the service is related to the automobile accident of (date). If you decide that a service is not related to the accident, you should not award damages for that service. If you decide that one or more services are related to the accident, you must then decide a second issue. The second issue is whether the service is medically necessary. If you decide that a service was not medically necessary, you should not award damages for that service. If you decide that one or more services are medically necessary, you must then decide a third issue. The third issue is whether the charge is reasonable. If you find the charge for a service or services reasonable, you should award that amount as damages. If you find the charge for a service is not reasonable, you should determine what is a reasonable amount and award that amount. In determining these issues, you should apply the following definitions: [Give applicable definitions below] a. Services: The term “services” includes, but is not limited to, treatment, diagnostic studies, and supplies provided by the medical provider to the insured. b. Medically Necessary: “Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (a) In accordance with generally accepted standards of medical practice; (b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and, (c) Not primarily for the convenience of the patient, physician, or other health care provider. c. Reasonable Charge:1 In deciding whether the amount of a charge is reasonable, you may consider evidence of: · usual and customary amounts charged and payments accepted by the provider; · reimbursement levels in the community; · various federal and state medical fee schedules applicable to automobile coverages; and · any other evidence relevant to the reasonableness of the charges. You may not, however, award an amount that exceeds the amount the provider customarily charges for like services or supplies. [Burden – To be given in all cases.] If the greater weight of the evidence does not support the claim of (Plaintiff), then your verdict should be for (Defendant). However if the greater weight of the evidence does support the claim of (Plaintiff), then your verdict

Appendix D, Page 137 http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/76d28aa8f2ee03e185256aa9005d... 10/28/2005

Proposed ‘PIP’ jury instructions

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should be for (Plaintiff) and against (Defendant). [Give when defenses to the claim have been raised.] If, however, the greater weight of the evidence does support the claim of (Plaintiff), then you shall consider the defense[s] raised by (Defendant). [Give in all cases.] “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. NOTES ON USE This instruction assumes that the jury will be asked to decide the total amount of medical charges. It is anticipated that the judge will adjust this award in entering judgment to account for any payments previously made by the insurer, as well as for the effect of the 80% limitation in section 627.736(1)(a) and any deductible. COMMENT 1. The definition of “medically necessary” is based on section 736.732(2), Florida Statutes (2003). The committee has added the option of a “prudent health care provider” to this definition in anticipation that the phrase, “prudent physician,” as described in the statute could sometimes be inadequate. This statutory definition is somewhat complex. It is possible that the parties could agree upon a plainer and simpler definition. 2. No definition of “related” is provided in this instruction . Causation can be a complex issue in a PIP case. Generally, to invoke this insurance coverage a bodily injury must “arise out of the ownership, maintenance, or use of a motor vehicle.” See § 768.736(1), Fla. Stat. (2003); Lumbermen’s Mutual Casualty Co. v. Castagna, 368 So. 2d 348 (Fla. 1979). The medical treatment covered by the insurance policy is the treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. The committee has been advised that most practitioners prefer to use the term, “related,” as a simple method to explain causation to the jury. The committee does not intend for S.J.I. 5.1 to be given in a PIP case as an explanation of causation. (Footnotes) 1

This statutory description of reasonable amount may require a supplemental instruction for fee capped diagnostic testing services as described in Section 627.736(5)(b), Florida Statutes (2003). IN THE COUNTY COURT IN AND FOR _________________COUNTY, FLORIDA Case No. Judge Plaintiff, v. Defendant. ________________________________/ VERDICT FORM MI 13 PIP – Medical Services 1. Are any of the services related to the accident of (date). ______ Yes ______ No If your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 2. 2. Are any of the services medically necessary? ______ Yes ______ No If your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 3. 3. Are [is] the charge[s] for the service[s] reasonable? If you find the charge or charges reasonable, you should proceed to number 4. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, then proceed to question 4. 4. What is the total amount do you find reasonable? $____________________ SO SAY WE ALL, this _____ day of ________________________, _______. ___________________________ FOREPERSON

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Appendix D, Page 138 http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/76d28aa8f2ee03e185256aa9005d... 10/28/2005

"Scott Makar"

To , cc

11/01/2005 09:47 AM

bcc Subject Fwd: PIP Jury Instructions

A couple more comments just received. ----- Message from [email protected] on Tue, 1 Nov 2005 08:53:44 EST -----

To: [email protected] Subject: PIP Jury Instructions I have handled thousands of pip suits and tried to verdict many. I would like to participate in the jury instructions. How can I help? Cris E. Boyar, Esq. Boyar & Freeman, P.A. 6896 West Atlantic Blvd. Margate, Florida 33063 954-971-3777 Fax 954-971-3888 This email is intended for the use of the person to whom it is addressed and may contain information that is privileged, confidential or otherwise exempt from disclosure under applicable law. If the reader of this email is not the intended recipient or employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the listed email address. Thank you.

----- Message from [email protected] on Tue, 1 Nov 2005 08:50:36 EST -----

To: [email protected] Subject: PIP Verdict form I have litigated thousands of PIP suits for the Defense and for the Plaintiff. I suggest the verdict forms should be as follows 1. What is the amount of the hospital bill which would be reasonable, medically necessary and related to the automobile accident dated 1/1/01? $_____________ Please write a dollar amount, if any, and answer the next question. 2. What is the amount of the MRI bill which would be reasonable, medically necessary and related to the automobile accident dated 1/1/01? $_____________ Please write a dollar amount, if any, and answer the next question.

3. What is the amount of the chiropractic bills which would be reasonable, medically necessary and related to the automobile accident dated 1/1/01? $_____________ Please write a dollar amount, if any, and sign and date the verdict form.

Appendix D, Page 139

If the plaintiff wins Sum Jud on an element then that portion is removed. The defense can always argue the number to write in is $0. If there is only one bill at issue it should be one question. There is no reason to make it more complicated. In cases involving personal injury cases the jury does not decide the amount of past medical expenses with any more detail. Cris E. Boyar, Esq. Boyar & Freeman, P.A. 6896 West Atlantic Blvd. Margate, Florida 33063 954-971-3777 Fax 954-971-3888 This email is intended for the use of the person to whom it is addressed and may contain information that is privileged, confidential or otherwise exempt from disclosure under applicable law. If the reader of this email is not the intended recipient or employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the listed email address. Thank you.

----- Message from "Terrence Swartz" on Mon, 31 Oct 2005 15:35:58 -0500 -----

To: Sub Comments on Proposed Jury Insructions and Proposed Verdict Form (MI 13 CLAIM FOR ject PERSONAL INJURY PROTECTION BENEFITS (PIP) ( Medical Benefits Only)) : These comments are intended for the committee chair, Mr. Scott D. Makar. I believe that the Proposed Jury Instructions and Verdict Form for Personal Injury Protection represents the current state of the law in Florida. The Jury Instructions and Verdict Form make it very clear that the burden of proof belongs to the Plaintiff. Moreover, both the Proposed Jury Instructions and Verdict Form emphasize the requirement that the Plaintiff bears the burden to prove each and every essential element of a claim for Personal Injury Protection benefits. These three elements, relatedness, medical necessity, and reasonableness, are not only identified and defined, the Verdict Form contains a separate question for each one and allows reasonableness to be broken into two questions. Thank you for the opportunity to comment on the Proposed Jury Insructions and Proposed Verdict Form (MI 13 CLAIM FOR PERSONAL INJURY PROTECTION BENEFITS (PIP) ( Medical Benefits Only)). Should you need to send a response e-mail to me, my name is Terrence Swartz, Esq. and I can be e-mailed at [email protected] I am an In-house attorney in the PIP legal division for U.S. Security Insurance Company.

Appendix D, Page 140

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STATE FARM MUTUAL AUTOMOBILE COMPANY,

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Petitioner, CASE NO. 1D05-02

v. DR. J. MARK RENFROE, D.C. d/b/a RENFROE SPINAL CENTER, Respondent. _____________________________/ Opinion filed October 31, 2005.

Original Jurisdiction-Petition for Writ of Certiorari. Charles F. Beall, Jr., Esquire, Moore, Hill & Westmoreland, P.A., Pensacola, for Petitioner. Eric Stevenson, Esquire, Pensacola, for Respondent.

HAWKES, J. State Farm petitions for a writ of certiorari. As grounds, State Farm argues the circuit court, in its appellate capacity, departed from the essential requirements of law by refusing to apply the definition of “medically necessary” found in section 627.732(2), Florida Statutes. We agree and grant the writ.

Appendix D, Page 141

Facts and Procedural History State Farm’s insured was involved in an automobile accident, and sought treatment from Respondent, Dr. Renfroe. Dr. Renfroe performed a dynamic motion x-ray (DMX), which is “a videotaped x-ray motion picture showing the patient’s bone and soft structures in motion.” See Tran v. Hilburn, 948 P.2d 57, 57 (Colo. Ct. App. 1997). Although it paid all other claimed expenses, State Farm refused payment of the DMX, alleging it did not meet the statutory definition of medically necessary, and therefore did not qualify for payment. Dr. Renfroe responded by filing suit. At trial, the parties stipulated the definition of “medically necessary” as contained in the Florida Statutes was applicable, and agreed to a jury instruction setting forth that definition. The statute relied upon by the parties for the definition of “medically necessary,” became effective June 19, 2001.1 The jury returned a verdict in favor of Dr. Renfroe. State Farm appealed to the circuit court, arguing no competent, substantial evidence supported the jury’s verdict. Specifically, State Farm argued there was no testimony or evidence that the DMX evaluation was “[i]n accordance with generally accepted standards of medical practice,” which is the first element in the definition of “medically necessary.” See § 627.732(2)(a), Fla. Stat. (2001).

1

See ch. 2001-271, § 5(2)(a)-(c), at 2928, Laws of Fla. -2Appendix D, Page 142

The circuit court sua sponte found the statutory definition of “medically necessary” agreed to by the parties was inapplicable. The court reasoned: (1) In 2001, the Legislature passed a bill (the act) amending Florida’s No-Fault Automobile Insurance Law; (2) Different sections of the act were given different effective dates; (3) Section 6 of the act amended paragraph (1)(a), of section 627.736, Florida Statutes (the personal injury protection or “PIP” statute), by inserting the word “medically” before “necessary.” This section became effective only to insurance policies issued new or renewed on or after October 1, 2001;2 (4) Section 5 of the act amended paragraph (2) of section 627.732, by adding a definition of “medically necessary.” This section had an effective date of June 19, 2001; (5) Since the section 6 amendment resulted in the phrase “medically necessary” appearing in the statute, the court concluded the effective date of the section 5 amendment, which defined “medically necessary,” should be changed to have the same effective date as section 6 of the act. To reach this result, the court rejected the plain language of the statute. The Legislature gave the definition of “medically necessary” an effective date of June 19, 2001, and, except in some circumstances not relevant here, a court lacks the authority to change the Legislature’s choice of a statute’s effective date.

PIP Never Paid for Unnecessary Medical Treatment

2

See ch. 2001-271, §§ 6(1)(a), and 11(2), 2929, 2948, Laws of Fla. -3Appendix D, Page 143

Both before and after the section 6 amendment, an insured’s medical benefits from a PIP policy would pay only for necessary medical treatment. Subsection (1)(a) refers specifically to “medical benefits” and, before the amendment, the subsection read, in relevant part, “expenses for necessary medical . . . and necessary ambulance, hospital, and nursing services . . .” See § 627.736(1)(a), Fla. Stat. (2000) (emphasis added). The word “necessary” modified the medical benefits 3 covered under the policy. Insertion of the word “medically” before “necessary” did not change the fact that the benefits provided were medical benefits or that the medical procedure, treatment or service must have been necessary. The amendment only clarified that not all medical procedures, treatment, or services were covered under the PIP provisions of the policy. Before the Legislature defined “medically necessary” in section 5 of the act, the fact finder was left with great discretion to determine if a claimed expense was medically necessary. See Derius v. Allstate Indem. Co., 723 So. 2d 271 (Fla. 4th DCA 1998). Obviously, different fact finders could make different determinations as to what medical procedures, treatment or services were “medically necessary” based on similar facts. The courts have recognized that, if the Legislature chose to do so, they had the prerogative of

3

See ch. 2001-271, § 6(1)(a) at 2929, which provides: “(a) Medical benefits. Eighty percent of all reasonable expenses for medically necessary medical, surgical, x-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment . . .” -4Appendix D, Page 144

defining the procedures, treatment or services that would qualify as “medically necessary,” thus eliminating the potential for inconsistent results. See State Farm Mutual Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2nd DCA 2002) (citing Derius, 723 So. 2d at 274). In passing section 627.732(2), Florida Statutes, section 5 of the act, the Legislature chose to exercise its prerogative. Under the statute, “medically necessary” is now defined as: a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (a) In accordance with generally accepted standards of medical practice; (b) Clinically appropriate in terms of type, frequency, extent, site and duration; and (c) Not primarily for the convenience of the patient, physician, or other health care provider. § 627.732(2), Fla. Stat. (2001). Since the effective date of the definition was June 19, 2001, and the accident triggering the treatment at issue occurred in September of 2001, the “medically necessary” definition set forth in section 627.732(2), Florida Statutes, applied. Conclusion In refusing to apply the definition of medically necessary, the circuit court departed from the essential requirements of law. We GRANT the petition for writ of certiorari,

-5Appendix D, Page 145

QUASH the circuit court’s order, and REMAND for proceedings consistent with this opinion. WOLF and THOMAS, JJ., CONCUR.

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"Scott Makar" 11/04/2005 03:35 PM

To , cc bcc Subject Fwd: PIP Proposed jury instructions.

Another ... ----- Message from "Mark Cornelius" on Fri, 4 Nov 2005 09:32:09 -0500 -----

To: Subject: PIP Proposed jury instructions. I am told that you are involved in the adoption or rejection of the new proposed PIP jury instruction and verdict form. I have personally been involved in the prosecution of numerous PIP cases in Central Florida and have a experience with the issues that arise. I have also seen the comment submitted by Glenn Klausman and agree with his position. I appreciate your attention to this matter and am glad to assist you in any other way I am able. I have the following concerns with the proposed instruction: 1) Why is services being given a definition? There is no statutory definition, and to impose one here would create limitations that are potentially inappropriate. This is a matter that comes up VERY infrequently in PIP cases. 2) The instruction on Reasonable Charges should quote the statute directly without addition or redaction. The proposed instruction makes substantive changes to this section which in effect would change the law in this hotly contested area of PIP litigation. The following is the language from the statute which should be quoted verbatim in the jury instruction: "With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply." Plaintiff's attorneys will want to emphasize the word "may" in this paragraph, and defendant attorneys want to minimize it and make it appear as if it is required that the jury consider these elements. Neither camp should be given any advantage over what the legislature has already done. There are more issues as well in this paragraph that could give rise to instruction, but to do so would open the proverbial Pandora's box. For instance, PIP litigation can be focused on what is the "community," or what is "usual and customary," and whether the federal and state medical fee schedules sought to be used by the defendant are "applicable to automobile and other insurance coverages." 3) The instruction that "You may not, however, award an amount that exceeds the amount the provider customarily charges for like services or supplies" overstates the law. Certainly the provider is prohibited under the Florida PIP statute from CHARGING Appendix D, Page 171

more than he customarily charges for like services or supplies, however, there is no law that prohibits a JURY from deciding that the doctor is owed more than he charged. While this may seem a minor point, jury pardons are allowed in Florida, and this would be no different. 4) The "Notes on Use" state " This instruction assumes that the jury will be asked to decide the total amount of medical charges. It is anticipated that the judge will adjust this award in entering judgment to account for any payments previously made by the insurer, as well as for the effect of the 80% limitation in section 627.736(1)(a) and any deductible." This instruction implies that the jury should not hear that the defendant already paid a portion of the bill. In fact this information is relevant to proving that the defendant found, at they time the licensed adjuster paid the bill, that the treatment was medically necessary, and related to the automobile accident at issue. Also, it is relevant to proving that the defendant believed, at the time they paid the bill, that the amount they did pay was reasonable. In an amazing number of cases, the same defendant will pay varying rates for the same service, and this information should not be kept from the jury. This note would quickly be seized by the defense bar as a license to keep all of the above relevant information from the jury. It should not be used. Furthermore, jury instructions and a verdict form that allow the jury to determine line by line whether each service at issue was reasonable, related, and necessary (depending on the issues in the case) results in a fairer result. Please note that I do not say this as a strategically proposition. I have used such a verdict form in at least two PIP trials and that were complete defense verdicts. 5) Causation and prior or subsequent injuries. Often times causation, relatedness, is an issue in a PIP case. As state in Florida Standard Jury Instructions 6.2(g)(1 & 2) the law requires the jury to separate the injuries if possible, but if not, then the defendants are jointly and severally liable for the whole injury. PIP insurance carriers, for this purpose, should be seen as standing in the shoes of the tort feasor. If the jury can make a determination as to what injuries were caused by the accident at issue then the PIP carrier should only be required to pay for those injuries. However, if the injuries are so intertwined with prior, subsequent, or concurrent injuries such that the jury cannot make that determination, the jury should require the defendant to pay for treatment of the entire condition. Therefore these instructions should be adopted, with appropriate wording, for PIP cases. This is an issue that arises more often than would be expected.

-Mark A. Cornelius Bogin, Munns & Munns (407) 578-9696

Appendix D, Page 172

"Scott Makar" 11/04/2005 03:37 PM

To , cc bcc Subject Fwd: Proposed PIP Jury Instructions

History:

This message has been replied to.

And another ... ----- Message from "David A. Bronstein" on Thu, 3 Nov 2005 12:19:39 -0500 -----

To: Subject: Proposed PIP Jury Instructions Dear Mr. Makar: As someone who serves on the Florida Bar's Committee on Evidence, I know how hard it is to balance pro bono committee work with the practice of law. In my own committee, we have had the occaision to consider proposals for recommendations to the Legislature to change the Evidence Code that narrowly involve certain areas of substantive law in which neither I nor any other committee member had experience and I really struggled to grasp the issues so that I could vote in the best interests of fairness in the courtroom. (a rejected proposed change to the Deadman's Statute last year that proved contentious to probate practictioners springs to mind) Since I do not know whether you or your fellow committee members who are involved in considering proposed PIP jury instructions have PIP experience, I am taking the time to give you my views and ask that you please make your committee members aware of them. Particularly, I am concerned with the proposed instruction which would ask the jury, if they first find that the amount the plaintiff health care provider charged the insurer or injured party was not reasonable, to then determine in dollars what constitutes a reasonable charge. For several reasons, this instruction is not sound and I urge it not be adopted. The proposed instruction is not fair to all litigants and hurts consumers. Since you do not know me, I do represent the interests of insurers and have substantial PIP experience in that regard. However, as someone who has always been a committee member of one bar committee or another, I first try to view all changes from the point of view of ensuring fair trials in our courtrooms, being fair to the public and all litigants alike, and not permitting the courts to substitute their views on what it feels the law should be versus what the Legislature has voted upon as the elected body of our citizens. This change should not be adopted because the clear and unambiguous words of the Florida Legislature in Florida Statute 627.736(5)(a) state: "any physician, hospital, clinic........... may CHARGE the insurer and injured party only a reasonable amount.....".(emphasis supplied). This places the burden of proof upon the provider to CHARGE a resonable amount, it does not place a burden on an insurer to still become liable for attorneys' fees and costs where the provider fails its statutory burden. Once a jury finds that the provider did not charge a reasonable amount, that jury has found that the provider has not met its statutory burden to charge a reasonable amount and the case should be over. Even if someone disagrees with that position that the case is over at that point due to the plaintiff's failure to prove it's statutory burden, the proposed instruction form and verdict, if adopted, make an unspoken presumption after a jury has already found that a provider's bill is not a reasonable charge that the jury should somehow then play King Solomon and split the baby down the middle and find a "happy" middle ground between the amount already established as not reasonable and the amount the insurer paid. This is not fair to insurers (or consumers) and does nothing to render charges "reasonable". It invites juries to feel that they should somehow "average" the two litigants' own positions as to what is a reasonable charge, which automatically results in a win for the health provder and a loss for Florida's premium payers, who bear the passed on costs of attorneys' fees and costs that are then assessed in favor of a provider who failed its statutory burden.

Appendix D, Page 173

The Statute and caselaw interpreting it make it clear that the burden is on the provider. The proposal flies in the face of case precedent as to who bears the burden. (See e.g. State Farm v. Sestile, 821 So.2d 1244 (Fla. 2d DCA, 2002) and Auto Owners v. Marzulli, 788 So.2d 1031 (Fla. 2d DCA, 2001)). As someone who practices in this area of law, I see how this will hurt consumers. Consider the real world example of the hot pack, which is the profit center of choice for car crash clinics in South Florida. The packs are reusable and the providers buy them for around $20.00 each but reuse them dozens of times. They charge amounts that are insane for each single use, anywhere from $37 to $52 even though they are reusable!!!! (The law does not even require a professional licensee to apply them to the patient. So long as a doctor orders them, any minimum wage worker with no medical training can apply this pack and the clinic charges these amounts) I have heard of cases where an insurer will take a stand and reduce the $52 charge to $51. The provider will then sue over a $1.00 reduction! If the jury finds $52 was not reasonable and is asked next to place a price on what is reasonable, they invariably split the baby and find $51.50. Guess what? This results in the provider charging $52.50 the next time out and daring the insurer to shave even a penny off of unreasonable charges, knowing that the insurer's real exposure lies in the huge fees and costs assessed against them and of which the jury is not made aware. This repeated pattern does not result in reasonable charges to Florida's consumers. Instead, it yields a dizzying spiral of out of control and artifically high health care costs in car crash cases that make inflationary increases in non-car crash cases look tame in comparison. While I represent insurers, I know that these increased artifical costs get passed onto consumers. There is nothing "reasonable" about a marketplace where the provider can charge whatever it desires, is determined by a jury to have been unreasonable in its charges, and then gets to see a jury average the unreasonable charge to produce a so-called "reasonable" charge that is not reflective of a true marketplace where price is supposed to be established by what a willing buyer will pay a willing seller. Far more importantly, a system that allows health care providers to raise prices at whim without regard to reason serves to exhaust finite insurance benefits quickly and frequently prevents injured people from geting necessary care and treatment. This proposal, if passed, will only further help do so. Thank you for your time and consideration. Please call me should you have any questions at (954) 358-0444. David A. Bronstein

Appendix D, Page 174

MEMORANDUM

TO:

Wendell M. Graham County Court Judge Miami-Dade County

FROM:

Amber C. Graham Assistant General Counsel 11th Judicial Circuit of Florida

DATE:

February 7, 2006

RE:

Comments received from initial publication of proposed MI 13 Standard Jury Instruction for Personal Injury Protection Insurance Benefits

The Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases solicited comments to the proposed PIP Jury Instructions published in the October 15th issue of the Florida Bar News. This memorandum summarizes the comments received and provides recommendations as to whether the comments submitted warrant consideration. The following is a synopsis of the comments received: •

A vast majority of the comments took issue with the delineated, “third issue” of the jury instructions, relating to the reasonableness of the charge. According to the opponents, this third issue shifts the burden of proving the reasonableness of the payment to the Defendant, in contrast to the holding in Derius. They further argue that in accordance with the clear language of Fla. Stat. §627.736 (2005), a healthcare provider may only charge a reasonable amount. Therefore, if a jury determines that the charges are not reasonable, then the jury must enter a verdict in favor of the Defendant, as opposed to determining and awarding a reasonable amount, as currently proposed.



A lesser majority of the remarks disagree with the definition of, “reasonable charge.” These comments suggest that the, “usual and customary” amounts charged by healthcare providers for a given service are often lowered for Medicaid, HMO, PPO and other discounted fee arrangements, and thus should not be considered by a jury.



One remark suggested the words, “personal injury benefits” be substituted with “personal injury protection insurance benefits.”



One recommendation was made to revise the definition of “services” to include the remedial services permitted under Fla. Stat. §627.736(1)(a), for the reliance upon spiritual means through prayer alone for healing.

Last Revised February 15, 2006

Appendix D, Page 175



One comment proposes grammatical modifications to better enable juries to understand that the words, “usual and customary charges,” refer to the usual and customary charges by the provider, involved in the dispute; and that the bulleted phrase, “reimbursement levels in the community,” flow directly into, “various federal and state medical fee schedules applicable to automobile coverages,” as in Fla. Stat. §627.736(5)(a).



One commenter observes that the proposed instructions do not take into account issues such as fraud, no-shows at EUOs and other coverage defenses.



Lastly, two writers scrutinize the proposed instructions for their failure to reduce a PIP insurer’s payment to 80% of $10,000 for medical billings, as allowed by Fla. Stat. §627.736(1)(a).

FIRST ISSUE Whether the proposed jury instructions shift the burden of proving the reasonableness of the payment to the Defendant, in contradiction to Fla. Stat. §627.736, caselaw and legislative intent. ANALYSIS Florida Statute §627.736(5)(a), Charges for treatment of injured persons, in pertinent part, states, [A]ny [medical provider]…lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer…only a reasonable amount…for the services…rendered, and the insurer providing such coverage may pay for such charges directly to such…institution…. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. (emphasis supplied) The opponents interpret this section to provide that if the jury determines that the amounts charged by the provider were not reasonable, the jury, essentially, has determined that the provider did not meet the statutory burden, therefore requiring a verdict for the insurer and no recovery for the provider. However, this rationale is flawed on several grounds.

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Page 2 of 7 Appendix D, Page 176

First and foremost, in practical application, the dissenters’ proposition produces an absurd result, as described in the following illustration. Cara, the adopted infant of Warren, although securely fastened in her car seat, is tragically injured after a careless driver runs a red light. Cara, covered under Warren’s PIP insurance, receives related and medically necessary treatment from Dr. Bechenheimer, a well-known physician in Boca Raton. Warren and Baby Cara assign their rights under the PIP policy to Dr. Bechenheimer. After receiving months of medically necessary treatment, Warren discovers that ABC Insurance has refused payment of Dr. Bechenheimer’s charges, calling them unreasonable. Litigation ensues and the jury ultimately determines that Dr. Bechenheimer’s charges were a little more than the reimbursement levels in the community and returns a verdict for ABC Insurance. Under the dissenter’s plan, Warren, the purely innocent accident victim, is left having to pay Cara’s medical bills, despite his timely monthly insurance premium payments. ABC Insurance, however, walks away with no liability. This, clearly, was not the intent of the framers. Second, it is well settled that the purpose of the PIP statute is to provide swift and virtually automatic payment of PIP benefits. Lasky v. State Farm Ins. Co., 296 So. 2d 9 (Fla. 1974). The most efficient way to accomplish this stated purpose is two-fold; first, medical providers must, “charge the insurer…only a reasonable amount…for the services,” and second, the insurer must then, pay the reasonable amount charged. Thus, responsibility lies with the medical provider, as well as the insurer. While issues may arise as to what amount is reasonable, it clearly obviates the outlined purpose, to procure swift and virtually automatic payments, to reason that an insurer may avert even reasonable payments, on the grounds that the provider’s total charge is unreasonable. Conversely, the outlined purpose is supported by requiring insurers to pay only the reasonable portions of a medical provider’s total charge, if the total is deemed unreasonable. Third, subsection (5)(a) of §627.736, must be read in the proper context. When two different statutory provisions deal with the same specific subject or with subjects so connected that the meaning of the one informs the other, they must be read in pari materia. Florida Department Of State, Division Of Elections v. Joseph Martin, 916 So. 2d 763 (Fla. 2005). Therefore, subsection (5)(a) must be read in pari materia with subsection (1)(a), which requires insurers to provide personal injury protection at, “eighty percent of all reasonable expenses for medically necessary…services,” up to a limit of $10,000 (emphasis added). It is important to note the usage of “expenses”, as opposed to, “charges.” If the legislature intended to make insurers responsible for payment only when the charge is reasonable, then the legislature would have consistently used such language. However, subsection (1)(a) clearly requires insurers to pay a percentage of all reasonable expenses, without mention of the charge. Moreover, since subsection (1)(a) verifies that PIP carriers must pay reasonable expenses, any argument suggesting a PIP carrier need not pay anything if a medical provider charges too much, is not in accordance with the clear language of the statute. Thus, if the dissenters argue, as they do, that subsection (5)(a) places a “burden” on the provider to charge reasonable amounts, then they must also conclude that section (1)(a) places the same “burden” on insurers to pay for all reasonable expenses. Fourth, by contract, insurers obligate themselves to pay the reasonable amounts for services rendered to an injured insured. If a jury determines that a given amount is unreasonable, Last Revised on February 15, 2006

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the only amount the insurer is contractually responsible for is the reasonable portion. To reason otherwise, would allow insurers to circumvent their obligations in the underlying insurance contract and leave the insured holding the bag for a third party’s billing procedures. This would be an unreasonable, impractical and senseless interpretation of the insurance contract. See, American Mfrs. Mut. Ins. Co. v. Horn, 353 So. 2d 565 (Fla. 3d DCA 1977). In addition, as courts are allowed to weigh public policy considerations in insurance contexts, Reynolds v. Life Ins. Co. of Virginia, 399 So. 2d 519 (Fla. 1st DCA 1981), allowing insurers to evade payments in this manner would be an affront to public policy. Moreover, the existence of underpayment cases, in which the insurer pays less than the amount billed, reveals that the insurance industry is accustomed to paying, self-proclaimed, reasonable amounts, though less than the amount billed, as opposed to not paying at all. Millennium Diagnostic Imaging Center, Inc. v. Security Nat. Ins. Co.882 So. 2d 1027 (Fla. 3d DCA 2004); Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001); Giles v. Luckie, 816 So. 2d 248 (Fla. 1st DCA 2002). If the insurance industry believed they could avert payment solely because the charge is too high, there would be no motivation to pay anything and this class of cases would not exist. Fifth, while the leading cases on this issue are clear that the burden to prove reasonableness does not lie with the defendant, the cases also do not propose that if a medical provider’s charge is determined unreasonable, the insurer is absolved from paying any amount, even a reasonable one. State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002), Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031 (Fla. 2d DCA 2001). Derius v. Allstate Indemnity Company, 723 So. 2d 271 (Fla. 4th DCA 1998), is quoted by the vast majority of the dissenters for the proposition that, “there is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.” Id. at 272. However, the trial court in Derius approved a substantially similar jury instruction delineating the issues for determination as, “whether any of the chiropractic treatment…was necessary and if so, the total reasonable charges for said chiropractic care. One additional issue for your determination is what is the total reasonable charge for the interim examination….” (emphasis added) Id. On appeal, the Fourth district concluded, “that the trial court correctly charged the jury on the plaintiff’s burden of proof.” Id. at 274. Thus, there was no error in asking the Derius jury to determine a reasonable charge. Here, the proposed jury instruction substantively follows the Derius instruction. Accordingly, it is clear that The Committee’s proposed jury instruction does not improperly shift the burden of proof. Some of the dissenters also argue that the determination of reasonableness is not a jury function. However, reasonableness is a proper question for the jury in varying areas of the law, Farinas v. Florida Farm Bureau General Ins. Co., 850 So. 2d 555 (Fla. 4th DCA 2003) (insurance context); Boone v. State, 711 So. 2d 594 (Fla. 1st DCA 1998)(criminal context); East West Karate Ass'n, Inc. v. Riquelme, 638 So. 2d 604 (Fla. 4th DCA 1994)(negligence/insurance context), as is the determination of an award. Moreover, the clear language of §627.736(5)(a) provides measures by which the finder of fact is entitled to determine reasonableness; usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages. Thus, this argument is flatly defeated. Last Revised on February 15, 2006

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Lastly, it is well settled that the term, "reasonable expenses for necessary medical services," must be construed liberally in favor of the insured, Malu v. Security Nat. Ins. Co., 898 So. 2d 69 (Fla. 2005); Farmer v. Protective Cas. Ins. Co., 530 So. 2d 356 (Fla. 2d DCA 1988); Palma v. State Farm Fire & Cas. Co., 489 So. 2d 147 (Fla. 4th DCA 1986). Thus, to interpret Fla. Stat. §627.736 (5)(a) to, essentially, shift payment responsibility from the insurer to the insured when the medical provider’s charge is unreasonable, is neither liberal, nor favorable, to the insured. In conclusion, for the foregoing reasons, the argument that the proposed jury instruction and the complementing verdict form shift the burden to the defendant to prove its payment was reasonable, is without merit. SECOND ISSUE Whether the proposed jury instruction, which allows the jury to consider the usual and customary amounts charged by the provider, in turn, allows the jury to consider discounted charges and payments for Medicaid, HMOs, PPOs and other discounted fee arrangements, when considering whether a charge is reasonable. ANALYSIS/ANSWER The determination of the admissibility of evidence lies with the trial judge. Sterling Casino Lines, L.P. v. Plowman-Render, 902 So. 2d 938 (Fla. 5th DCA 2005). The proponent of any evidence for the jury’s consideration must first establish the necessary predicates for its admissibility. Id. Thus, the trial judge must determine whether the proffered evidence of the usual and customary charges and payments accepted by the provider involved in the dispute is admissible. If the trial judge determines that discounted charges or reimbursements amounts for Medicaid, HMOs, PPOs and other discounted fee arrangements may be admitted as evidence of the provider’s usual and customary charges and payments, then the jury is properly allowed to consider it. In and of itself, the proposed jury instruction, in no way attempts to require admittance of such evidence. THIRD ISSUE Whether, “personal injury benefits,” should be substituted with, “personal injury protection insurance benefits.” ANALYSIS/ANSWER As to provide a clear and uniform jury instruction, reflecting statutory language and the precise issues involved in PIP insurance cases, the committee may consider replacing, “personal injury benefits” with, “personal injury protection insurance benefits.”

FOURTH ISSUE Whether the definition of, “services” included in the proposed jury instruction should include remedial services permitted under Fla. Stat. §627.736(1)(a), to include the reliance upon spiritual means through prayer alone for healing, in accordance with religious beliefs.

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ANALYSIS/ANSWER The proposed jury instruction states, “[t]he term “services” includes, but is not limited to, treatment, diagnostic studies, and supplies provided by the medical provider to the insured.” (emphasis provided) The caveat that the term, “includes, but is not limited to,” the listed services, is sufficient to include remedial services, among others not specifically named. Every applicable service need not be expressly mentioned, as the instructions are designed as a guide, open to modifications and amendments, on an as needed basis. FIFTH ISSUE Whether the proposed jury instruction improperly leads jurors to interpret the words, “usual and customary amount charged” to refer to charges by other health care providers in the community, as opposed to referring to charges by the provider involved in the dispute. Whether the bulleted phrase, “reimbursement levels in the community,” should flow directly into, “various federal and state medical fee schedules applicable to automobile coverages.” ANALYSIS/ANSWER In form and substance, the proposed jury instruction refers to the reasonableness of the charge as follows: In deciding whether the amount of a charge is reasonable, you may consider evidence of: • Usual and customary amounts charged and payments accepted by the provider; • Reimbursement levels in the community; • Various federal and state medical fee schedules applicable to automobile coverages; and • Any other evidence relevant to the reasonableness of the charges. On the other hand, structurally, Fla. Stat. §627.736(5)(a), states, “[w]ith respect to a determination of whether a charge for a particular service…is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service….” Although the language utilized in the jury instruction generally tracks the statute, it does not provide the clearest interpretation of the statute. A strict reading of the statute allows for the consideration of; (1) the usual and customary charges by the provider involved in the dispute; (2) the usual and customary payments accepted by the provider involved in the dispute; (3) reimbursement levels in the community; (4) reimbursement levels in various federal and state medical fee schedules and; (5) other information relevant to the reasonableness of the reimbursement for the service. The proposed jury instruction, as currently phrased and formatted, may not adequately inform jurors as to all the evidence that may be considered. Accordingly, this portion of the jury instruction may be reformatted in form and substance to read, Last Revised on February 15, 2006

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• • • •

In deciding whether the amount of a charge is reasonable, you may consider evidence of Usual and customary charges and payments by the provider involved in the dispute; Reimbursement levels in the community; Reimbursement levels in various federal and state medical fee schedules applicable to automobile coverage; and Any other evidence relevant to the reasonableness of the charges.

SIXTH ISSUE Whether the proposed jury instruction should integrate other issues such as fraud, noshows at EUOs and other coverage defenses. ANALYSIS/ANSWER One portion of the proposed jury instructions advises: [Give when defenses to the claim have been raised] If, however, the greater weight of the evidence does support the claim of (Plaintiff), then you shall consider the defenses[s] raised by (Defendant). Therefore, in its current form, the proposed jury instruction allows the jury to consider defenses, when raised by the Defendant. SEVENTH ISSUE Whether the proposed jury instruction fails to consider the 80% limitation proscribed by Fla. Stat. §627.736(1)(a). ANALYSIS/ANSWER As explained in the Notes On Use, it is anticipated that the judge will adjust the jury award by accounting for payments previously made by the insurer, the effect of the 80% limitation in Fla. Stat. §627.736(1)(a) and any deductible.

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UPDATED AFTER MEETING July, 2005 Version MI 13 CLAIM FOR PERSONAL INJURY PROTECTION INSURANCE BENEFITS (PIP) (MEDICAL BENEFITS ONLY) a.

Issues: (Plaintiff) seeks personal injury benefits from (Defendant) for [a medical

service] [medical services]. (Plaintiff) is entitled to recover benefits if the service[s] is [are] related to the accident, the service[s] is [are] medically necessary, and the charge[s] for the service[s] is [are] reasonable. [Give this preemptive instruction only where rulings or stipulations have altered the number of issues to be proven.] In this case, there is no dispute that (the service[s] is [are] related to the accident) [and] (that the service[s] is [are] medically necessary) [and] (that the charge[s] is [are] reasonable), but there is dispute over (whether the service[s] is [are] related to the accident) [and] (whether the service[s] is [are] medically necessary) [and] (whether the charge[s] for the service[s] is [are] reasonable).

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Appendix D, Page 182

[To be given in all cases. Alter numbering where required due to rulings or stipulations.]

Therefore, on this claim for personal injury benefits, you must decide the following: The first issue is whether the service is related to the automobile accident of (date). If you decide that a service is not related to the accident, you should not award damages for that service. If you decide that one or more services are related to the accident, you must then decide a second issue. The second issue is whether the service is medically necessary. If you decide that a service was not medically necessary, you should not award damages for that service. If you decide that one or more services are medically necessary, you must then decide a third issue. The third issue is whether the charge is reasonable. If you find the charge for a service or services reasonable, you should award that amount as damages. If you find the charge for a service is not reasonable, you should determine what is a reasonable amount and award that amount.

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In determining these issues, you should apply the following definitions:

[Give applicable definitions below] a.

Services: The term “services” includes, but is not limited to, treatment, diagnostic

studies, and supplies provided by the medical provider to the insured.

b.

Medically Necessary: “Medically necessary” refers to a medical service or supply that a prudent

physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (a) In accordance with generally accepted standards of medical practice; (b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and, (c) Not primarily for the convenience of the patient, physician, or other health care provider.

c.

Reasonable Charge: 1 In deciding whether the amount of a charge is reasonable, you may consider

evidence of:

1

This statutory description of reasonable amount may require a supplemental instruction for fee capped diagnostic testing services as described in Section 627.736(5)(b), Florida Statutes (2003).

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Appendix D, Page 184



usual and customary charges and payments accepted by the provider involved in the dispute;



reimbursement levels in the community;



reimbursement levels in various federal and state medical fee schedules applicable to automobile coverages; and



any other evidence relevant to the reasonableness of the charges.

You may not, however, award an amount that exceeds the amount the provider customarily charges for like services or supplies.

[Burden – To be given in all cases.] If the greater weight of the evidence does not support the claim of (Plaintiff), then your verdict should be for (Defendant). However if the greater weight of the evidence does support the claim of (Plaintiff), then your verdict should be for (Plaintiff) and against (Defendant).

[Give when defenses to the claim have been raised.] If, however, the greater weight of the evidence does support the claim of (Plaintiff), then you shall consider the defense[s] raised by (Defendant).

[Give in all cases.] “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

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Appendix D, Page 185

NOTES ON USE This instruction assumes that the jury will be asked to decide the total amount of medical charges. It is anticipated that the judge will adjust this award in entering judgment to account for any payments previously made by the insurer, as well as for the effect of the 80% limitation in section 627.736(1)(a) and any deductible.

COMMENT 1. The definition of “medically necessary” is based on section 736.732(2), Florida Statutes (2003). The committee has added the option of a “prudent health care provider” to this definition in anticipation that the phrase, “prudent physician,” as described in the statute could sometimes be inadequate. This statutory definition is somewhat complex. It is possible that the parties could agree upon a plainer and simpler definition. 2. No definition of “related” is provided in this instruction . Causation can be a complex issue in a PIP case. Generally, to invoke this insurance coverage a bodily injury must “arise out of the ownership, maintenance, or use of a motor vehicle.” See § 768.736(1), Fla. Stat. (2003); Lumbermen’s Mutual Casualty Co. v. Castagna, 368 So. 2d 348 (Fla. 1979). The medical treatment covered by the insurance policy is the treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. The committee has been advised that most practitioners prefer to use the term, “related,” as a simple method to explain causation to the jury. The committee does not intend for S.J.I. 5.1 to be given in a PIP case as an explanation of causation.

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Appendix D, Page 186

IN THE COUNTY COURT IN AND FOR _________________COUNTY, FLORIDA Case No. Judge

, Plaintiff, v. , Defendant. ________________________________/

1.

VERDICT FORM MI 13 PIP – Medical Services July 2005 version

Are any of the services related to the accident of (date).

______ Yes

______ No

If your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 2.

2.

Are any of the services medically necessary?

______ Yes

______ No

If your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 3. Appendix D, Page 187

3. Are [is] the charge[s] for the service[s] reasonable? If you find the charge or charges reasonable, you should proceed to number 4. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, then proceed to question 4.

4.

What is the total amount do you find reasonable?

$____________________

SO SAY WE ALL, this _____ day of ________________________, _______.

___________________________ FOREPERSON

Appendix D, Page 188

Wendell Graham Sent by: [email protected]

To James Barton , Richard Caldwell , "S. Cacciatore" cc "Gerry B. Rose" , Scott Makar bcc

02/09/2006 12:11 PM

Subject Dick Caldwell's written response

Please include in book for next meeting.

---------- Forwarded message ---------From: Caldwell, Jr. , Dick Date: Feb 8, 2006 11:41 AM Subject: RE: Here's the Attachment! - Responses MI - 13 Memorandum To: Wendell Graham , James Barton < [email protected]>, "S. Cacciatore" Cc: "Gerry B. Rose" , Scott Makar < [email protected]>

Thx. for sending the analysis memo. It was well done (even though I don't totally agree with all of the conclusions, as set forth below), and should be included in our materials for consideration by the Committee as a whole. I will actually be out of the office tomorrow morning, and attending by cell phone. I won't be able to tap into the document sharing feature, therefore (for some reason, I had trouble anyway doing this last time even at my PC). The only part of the Memorandum that I have some difficulty with is the discussion on the "First Issue." We should all realize that the root problem here involves attorneys' fees which of course get awarded to a successful insured plaintiff. The statute says, in essence, that the provider may charge the insuror "... only a reasonable amount...." The undercurrent of the presentations of the "dissenters" is that the insuror should not be tagged with liability for fees when the amount charged in not "reasonable." Take this example: Dr. A charges Insuror X a total of $1,000 for services. Insuror X objects and declines to pay the charge because it's not reasonable. At trial, under our proposed instruction, the jury fixes the reasonable value of the services at $500, and a judgment for Plaintiff insured is rendered accordingly. Thus, the jury found that Insuror X was entirely correct in declining to pay the $1,000 because it was not a reasonable charge. however, because judgment is rendered for Plaintiff, does X get tagged for attorneys' fees? What if X had offered $500 to Dr. A, but the offer was rejected? What if the offer had been $750? What if the jury found the reasonable value of the services to be $200? This is I think what the "dissenters" are really saying - that an insuror is put in the position of undertaking the burden of proof of what is a "reasonable" charge, in order to avoid being tagged with attorneys' fees, even (and especially) in cases where the "reasonable charge" is determined by the finder of fact to be less than that demanded by the provider. One can argue that an insuror can avoid getting into this trap by filing a Proposal for Settlement in the amount it contends is reasonable. However, a party's substantive

Appendix D, Page 189

rights or obligations as expressed in a jury instruction should not be dependent upon use of such as "escape" device. I do agree that the Memorandum makes a valid point in the example of the "absurd result" which can obtain from not allowing the jury to determine the reasonableness of a particular charge. I have made similar arguments in the past - e.g, where plaintiff fails to put on evidence of reduction of future losses to present value, I've argued that the jury can't award money for these items as it would necessarily be based upon speculation. I can't ever remember being successful with this argument. However, it seems an equally absurd result to penalize an insuror for being right in rejecting a bill for services that are not reasonable. Do insurors typically make counteroffers to pay less than the total amount charged for a service? (I'm obviously renewing my confession of ignorance of many aspects of this area of the law.) If so, and if in the Memorandum's example ABC Insurance Co. offered some amount equal to 80%, or 75%, 50% or some other proportion of Dr. Bechenheimer's charge, the absurd result could be traceable to Warren's unreasonabless or even greed. A reasonable result would seem to be to subject an insuror to liability for fees only if the amount ultimately awarded by a jury for charges exceeds whatever amount the insuror offered to pay, per its schedule of services or whatever. However, I don't believe we can accomplish that end on the SJI Committee. On balance, I think that keeping the provision which requires the jury to determine the "reasonale charge" for the service is the way to go. Maybe we could point out in a Comment the anomaly of an insuror's liability for fees in my example above, and suggest use of the Proposal for Settlement or some other avenue of relief. Otherwise, I'm not sure where we go. I look forward to speaking with everyone tomorrow. ----Original Message----From: [email protected] [mailto:[email protected]] On Behalf Of Wendell Graham Sent: Tuesday, February 07, 2006 9:21 PM To: James Barton; Caldwell, Jr. , Dick; S. Cacciatore Cc: Gerry B. Rose; Scott Makar Subject: Here's the Attachment! - Responses MI - 13 Memorandum

---------- Forwarded message ---------From: Wendell Graham Date: Feb 7, 2006 9:15 PM Subject: Memorandum - Responses MI 13 [Thursday meeting] To: James Barton < [email protected]>, Richard Caldwell , "S. Cacciatore" < [email protected]> Cc: "Gerry B. Rose" < [email protected]>, Scott Makar < [email protected]> Please do your best to review the attached memorandum prepared by a stellar member of the 11th Circuit's General Counsel's Office. I hope you enjoy her work as much as I. Our meeting is on for this Thursday morning at 10am. By Wednesday afternoon, I will provide you with instructions on how to join the teleconference and to access the document online. Try connecting to the document sharing site prior to the meeting so that any technical difficulties can Appendix D, Page 190

be resolved. -Wendell Graham -Wendell Graham ************************** CONFIDENTIAL ****************************** The information in this e-mail message is legally privileged and confidential information intended only for the use of the addressee(s) named above. If the reader of this message is not the intended recipient or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, copying, dissemination, distribution, forwarding or the taking of any action in reliance on the contents of this communication is prohibited. If you have received this e-mail in error, please notify the sender as soon as possible. In addition, please delete the erroneously received message from any device/media where the message is stored. ************************************************************************

-Wendell Graham

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