02-2483 STATE FARM V. UNIVERSAL MEDICAL

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 02-2483 STATE FARM V. UNIVERSAL MEDICAL

Case Date: 11/19/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2004 STATE FARM MUTUAL AUTOMOBILE, ** INSURANCE CO., ** Appellant, ** vs. ** UNIVERSAL MEDICAL CENTER OF SOUTH FLORIDA, INC., ** Appellee. **

CASE NO.

3D02-2483 00-8381

LOWER TRIBUNAL NO.

Opinion filed March 17, 2004. An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Green, Murphy, Wilke, Murphy & Spellacy, and Jonathan S. Brooks; Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, and Nancy Gregoire, for appellant. Lidsky, Vaccaro & Montes, and Charles L. Vaccaro, for appellee. Before LEVY, GERSTEN, and RAMIREZ, JJ. ON MOTION FOR REHEARING, REHEARING EN BANC AND/OR FOR CERTIFICATION RAMIREZ, J. We grant appellee Universal Medical Center of South Florida, Inc.'s motion for rehearing, withdraw this Court's November 19, 2003

opinion and substitute the following in its place.1 State Farm Mutual Automobile, Ins. Co. appeals the entry of final judgment in favor of Universal underlying which is Universal's suit against State Farm for services it rendered to a State Farm insured. In this Court's November 19, 2003 opinion, we reversed

the final judgment entered in Universal's favor and concluded that the medical assistants were unauthorized to perform physical therapy and thus State Farm had no obligation to pay for their services. Universal certification moved to the for rehearing, rehearing Court. en In banc and/or of

Florida

Supreme

support

Universal's motions, a number of professional licensing boards filed a amicus curiae briefs on Universal's behalf, including the Florida Chiropractic Association, Inc., Florida Medical Association, Inc., Florida Osteopathic Medical Association, Inc., Florida Podiatric Medical Association, Inc., and the Florida State Massage Therapy Association, Inc. We have considered Universal's motions, the amici curiae briefs filed on its behalf, State Farm's response to Universal's motions, as well as our previous decision. For the reasons that follow, we

now hold that medical assistants are authorized to administer the physical modalities they performed for which State Farm is obligated to pay. This decision is consistent with legislative intent and the

We consider the motion for rehearing en banc and/or for certification to the Florida Supreme Court to be moot. 2

1

way in which physicians for the varying medical disciplines deliver health care and conduct their business in the State of Florida. On August 28, 2000, Blanca Franco was injured in an automobile accident. State Farm was Franco's automobile insurance carrier at

the time of the accident and Universal is the health care provider that treated Franco for the injuries she sustained in the auto accident. State Farm declined to pay for a number of services that Universal rendered to Franco from August 2000 to December 2000. Universal, as Franco's assignee, subsequently sued State Farm seeking damages for State Farm's failure to pay the entire claim and subsequent breach of Franco's policy. State Farm answered and raised various affirmative defenses, including that the bills which were sued upon were unreasonable, unnecessary or unrelated to the

accident, represented treatment that was unlawfully rendered and not ordered, and that Universal did not provide any treatment, service or accommodation to Franco. At trial, Dr. Carlos D. Carranza, Universal's office manager and a licensed medical doctor, testified that he recommended that Franco receive a course of physical therapy. assistants, all of whom were unlicensed A number of medical physical therapists,

performed a number of tasks that included the application of hot packs, electrical muscle stimulations, ultrasound therapy

treatments, and mechanical massages. 3

Dr. Carranza testified that

the medical assistants administered the physical therapy while he was present at the medical facility and under his supervision. State Farm moved for directed verdict arguing that the services rendered were illegal because the medical assistants were The

unauthorized under Florida law to perform physical therapy. trial court denied the motion.

The jury subsequently returned a State Farm breached its

verdict in Universal's favor finding that

insurance contract by failing to pay Universal for the medical services Universal rendered to Franco that were reasonable, The jury

necessary, and causally related to the auto accident.

awarded Universal $1,584.00. State Farm moved for rehearing or for certification of question of great public importance. The trial

court denied the motion for rehearing, entered its final judgment in Universal's favor, and certified the following question to this Court: Whether a person defined as a medical assistant under section 458.3485, Florida Statutes (2001), but not licensed as a physical therapist under chapter 486, Florida Statutes (2001), may `lawfully render' any of the physical therapy modalities enumerated in section 486.021(11), Florida Statutes (2001) for purposes of qualifying for payment of assigned personal injury protection benefits under section 627.736(5)(a), Florida Statutes (2001). We begin our discussion with chapter 458, Florida Statutes (2001), which governs "Medical Practice" and the medical assistant profession. Under section 458.3485(1), Florida Statutes (2001), a 4

medical assistant is permitted to assist "in all aspects of medical practice under the direct supervision and responsibility of a physician." Section 458.3485(2) specifically authorizes a medical

assistant to assist "with patient examinations or treatments," and section (d) authorizes the medical assistant to operate "office medical equipment." the statute to The medical assistant is also authorized under a number of other medically related

perform

procedures not necessarily relevant here. State Farm argues that the physical therapy performed on Franco was illegal because chapter 486, Florida Statutes (2001)

specifically requires that type of therapy to be performed by licensed physical therapists and the therapists who performed the therapy were unlicensed. position. Section 486.021(11) describes the practice of physical therapy as: [T]he performance of physical therapy assessments and the treatment of any disability, injury, disease, or other health condition ... or the prevention of such disability, injury, disease, or other condition of health, and rehabilitation ... by the use of radiant energy, including ultraviolet, visible, and infrared rays; ultrasound; water; the use of apparatus and equipment in the application of the foregoing or related thereto. Section 486.161 requires the physical therapists to be We do not agree with State Farm's

licensed, unless the physical therapists are exempt pursuant to section 486.161(1) which provides as follows: 5

No provision of this chapter shall be construed to prohibit any person licensed in this state from using any physical agent as a part of, or incidental to, the lawful practice of her or his profession under the statutes applicable to the profession of chiropractic physician, podiatric physician, doctor or medicine, massage therapist, nurse, osteopathic physician or surgeon, occupational therapist, or naturopath. (Emphasis added). The physical therapy the medical assistants performed in this case fell within the scope of the exemption outlined in section 486.161(1) as physical therapy "incidental to" the practice. In

fact, the relevant language of chapter 486 clearly allows licensed physical therapists to assist with patient examinations and The

treatment, and also allows them to operate medical equipment.

physical therapy modalities performed also fell within the common practice of chiropractic medicine, osteopathic medicine, podiatric medicine, allopathic medicine, and massage therapists.

Furthermore, whether or not these medical assistants were licensed is of no consequence under section 486.161(1). The health

care profession routinely delegates to licensed, as well unlicensed, employees the performance of duties similar to or the same as the duties the medical assistants performed in this case. The physical

therapy modalities at issue here, the application of hot packs, electrical muscle stimulators, ultrasound therapy devices, and

mechanical massage, all involved either relatively simple modalities performed to assist the physician with patient treatments or the use of standard medical equipment. The modalities and the use of the 6

medical equipment are also deemed to fall within the ordinary and customary practice of the respective supervising physician. Similarly, whether or not the physical therapy the medical assistants performed fell within the scope of the supervising physician's practice is a determination properly left for the respective licensing boards of medicine that discipline physicians for the physician's improper delegation of duties. health care physician's professions has a Each of the body or

regulatory

licensing board that regulates the conduct of the physicians and sets forth minimum standards for their licensure and practice. These regulatory agencies are numerous and they act consistently with the legislative purpose underlying the creation of the

Department of Health's Division of Medical Quality Assurance which is responsible for a number of boards and professions. See

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