image_pdfimage_print

By Ryan Sanders and Steve Lubell, Lubell & Rosen

The Florida legislature is currently considering a bill that would propose significant changes to Florida’s tort law.  The bill is HB 837 and among its numerous provisions designed to reduce lawsuits against insurance carriers is a provision that would eliminate attorney’s fees to the claimant in a successful lawsuit.  If this bill becomes law, medical providers who accept insurance benefits would be significantly harmed.

There are currently thousands of doctors in Florida that treat patients for injuries sustained in motor vehicle accidents. Emergency room doctors, radiologists, orthopedists, general surgeons, plastic surgeons, and more all treat injured patients.  Under Florida law, each person is entitled to $10,000 in personal injury protection benefits (“PIP”).  The carrier is supposed to pay 80% of all reasonable and necessary medical charges.  If a carrier doesn’t pay the bill or underpays, the medical provider can sue the company and recover the full amount of the bill and attorney’s fees.

Most PIP attorneys take these cases on a contingency, meaning they only get paid if they win.  The attorney’s payment consists entirely of the attorney’s fee awarded, while the payment of underlying medical bill goes directly to the doctor.  The threat of attorney’s fees forces PIP insurance carriers to play by the rules and pay valid claims.  But even with this threat, there are still thousands of PIP law suits in Florida every year, accusing insurance companies of under paying and non-payment on valid bills.  The amount in controversy on these cases range from a few hundred dollars up to a maximum of $10,000.   These cases are driven by attorney’s fees and it is the legal community that forces the insurance carriers to be honest, or pay the penalty.   Without the threat of attorney’s fees, attorneys would not be interested in these cases.

The bill’s chief sponsor, Tommy Gregory, has stated that this bill will remove the rewards for “garbage” litigation. The problem lies in that there is no uniform definition of “garbage”—as the saying goes, one man’s trash is another man’s treasure. These small dollar lawsuits, while in isolation may seem trivial, in the aggregate add up to substantial lost revenue for physicians. Our firm’s clients, for example, only collect an average of forty percent of their medical bills from PIP carriers.  Is the unpaid 60% “garbage”?  Why should insurance companies be permitted to reduce charges on small bills without a penalty for doing so?  Additionally, Gregory’s view is short sited and ignores why an insurance company would underpay a claim.  When a carrier under pays, even by a few dollars, on a valid CPT code, the carrier is capable of  cheating doctors statewide out of millions in revenue.  Consider how often a single treatment code is billed statewide amongst all the doctors in Florida.  Litigation it the only way to force PIP carriers to treat doctors fairly.

The problem of removing attorney’s fees extends beyond motor vehicle litigation. The attorney’s fee statute also helps physicians and hospitals sue health insurers who refuse to deal fairly with certain medical providers.  Our firm, for example, represents numerous physician groups and hospitals in Florida that are “out of network” with certain payors.  The attorney’s fee statute allows our physicians and hospital clients to sue the out-of-network carrier, on behalf of their patients, to recover the “usual and customary reimbursement” where the physician or hospital had no choice whether to treat the patient.  The threat of attorney’s fees in out-of-network litigation is an important check against health insurers paying physicians or hospitals an unreasonably low amount for treating their members.

Of course, in an ideal world, no patient or health care provider would need to sue an insurance company for fair compensation. Unfortunately, insurance reimbursement of any type is a zero sum game—the more money an insurance company saves through underpayments or denials, the less money physicians or patients recover at the end of the transaction.  Prevailing party attorney’s fees levels the playing field for small dollar claims, and sends a strong message to insurance companies that no amount of money, big or small, should be improperly denied or underpaid.

HB 837 is being supported by Governor DeSantis and it appears that he has the votes to get the bill passed.  The bill is scheduled to go into effect on July 1, 2023.  No doubt there will be constitutional challenges to the bill once it becomes law, but these efforts may prove fruitless.  Doctors who accept PIP or out-of-network benefits should strongly consider filing as many claims as possible prior to July 1, 2023.

If you would like more information on this pending legislation, contact Ryan Sanders at Lubell Rosen, 954 880 9500

 

Ryan Sanders & Steven Lubell are partners at the firm Lubell & Rosen, with its main office in Fort Lauderdale, Florida.  The firm represents hundreds of doctors throughout the state of Florida.  Areas of practice include PIP collection, out-of-network medical bill collection and medical malpractice defense litigation.   For more information about the authors of this article or Lubell & Rosen, please visit www.lubellrosen.com.