Sometimes known as the No-Fault Statute, PIP is only one of two types of automobile insurance required to be carried by all owners of vehicles registered in Florida. It pays for 80 percent of reasonable, related, and necessary medical expenses, as well as 60 percent of lost wages related to an automobile accident regardless of fault. PIP is often the only type of health insurance available in an automobile accident.
Over the years the Florida Legislature has made inept efforts to amend Florida’s PIP law, sometimes because of what has been described as unscrupulous healthcare providers or attorneys, but more often to appease the insurance industry. This year, behind the insurance industry’s pretense that PIP reform was necessary to lower insurance premiums, the legislature came up with an amendment that is certain to cause more confusion and litigation than its last effort to appease the insurance industry.
Effective January 1, 2013 an injured person must seek medical care within 14 days of a motor vehicle accident or run the risk of not being provided with PIP coverage. Thereafter, a health care provider – excluding chiropractors — must determine whether the injured person had an “emergency medical condition.” If an emergency medical condition exists the $10,000 in PIP coverage previously available continues to exist. If, however, a health care provider – which includes chiropractors — does not determine a patient to have an “emergency medical condition”, PIP benefits are limited to $2,500.
Although the legislature did take the time to include the definition of an “emergency medical condition”, its definition is somewhat subjective. It includes severe pain which, in the absence of immediate medical attention, could result in serious health consequences to the patient.
It is not difficult to imagine the whirlwind of litigation that the legislature has created. In addition to possibly violating due process laws, it is not difficult to come up with various scenarios in which legitimate injuries will result in the denial of PIP benefit. For example, an individual involved in a motor vehicle accident who hurts a knee and initially avoids seeking medical attention hoping that aches and pains will go away after a few days.
However, on day 15 the person ends up seeing a physician who orders an MRI and it is determined that the injured person sustained a torn meniscus and now needs surgery. Under Florida’s new PIP law, this person is not entitled to benefits.
This legislation also will affect thirdparty cases. If a person who fails to receive medical care and treatment within 14 days does not qualify for PIP, does that person need to sustain a permanent injury within a reasonable degree of medical probability to make a claim for pain and suffering? As the law stood prior to this amendment, a person injured as a result of an automobile accident could only assert a claim for pain and suffering if he or she sustained a permanent injury within a reasonable degree of medical probability. In the past, the Florida Supreme Court upheld this threshold only because of the application of personal injury protection benefits. Therefore, this amendment is certain to create litigation over whether the threshold law remains constitutional, at least in those circumstances where PIP is not applicable. The true shortcoming of this law is that it does not even address the alleged motives behind the amendment – that is to say it doesn’t guarantee lower insurance premiums. When the issue was tabled to have independent auditors determine whether this amendment would lower costs to insurers and have that tie into a requirement to lower insurance rates, the insurance industry balked. It all points to another sweetheart deal received by the insurance industry at the expense of Florida residents and consumers.
Unfortunately, it only continues the tidal wave the industry has been riding for the last 15 years.
David Sampedro is an attorney and partner with the Pinecrest law firm of Panter, Panter & Sampedro, 6950 N. Kendall Drive. He may be contacted by calling 305-662-6178.