Every adjuster has received that e-mail or fax from a claimant’s attorney with a whopping emergency room bill. Had the claimant waited a few more days and simply gone to their authorized provider, the carrier would only be on the hook for a simple follow-up visit, as opposed to the hospital bill which often multiplies that figure by ten.
The question on everyone’s mind at this point is, Do I have to pay? This area of the law remains confusing. A few recent DCA cases and JCC opinions, however, have provided some guidance to this question.
Medical treatment must be expressly authorized by the carrier in order for it to be reimbursable by the carrier. Section 440.13(3)(a), Fla. Stat. An exception exists, however, for “emergency care” as defined in Section 395.002, Fla. Stat. (See 440.13(1)(e) and 440.13(2)(e) and 440.13(3)(a), Fla. Stat.) In Cespedes v. Yellow Transportation, Inc., 130 So. 3d 243 (Fla. 1st DCA 2013), the Court set forth the correct method of determining whether care and treatment falls under the “emergency” exception. The relevant questions are:
1. whether the service provider is a licensed physician
2. whether an evaluation, screening, or examination was conducted by that physician; and
3. whether such care was undertaken by the physician with the intent of determining if an emergency medical condition exists.
Typically, these questions can be answered by the finder of fact without resort to medical opinion testimony.
This is a fairly easy element to satisfy. In the JCC opinion Espinoza v. Homestead Concrete & Drainage, the Court quickly found that this element was met where the claimant was seen by a physician’s assistant and by a medical doctor, who evaluated the claimant and reviewed the physician assistant’s notes.
This element, again, is easily satisfied. Evidence that a claimant went through some sort of triage screening, providing a history, completed paperwork and had a physical exam will be sufficient to establish that the claimant had an evaluation.
Evaluation for the purpose of determining if there is an emergency condition
The third element is whether such care was undertaken by the physician with the intent of determining if an emergency medical condition exists.
It is important to consider that the law requires licensed physicians and health care providers to make their services available for emergency treatment. Failure or refusal to do so may be cause for their license to be revoked. Upon presenting to the ER, medical personnel cannot simply turn people away, but are required by law to at least evaluate the patient to determine if an emergency condition exists and, if so, to treat it accordingly.
It is evident that establishing the elements to qualify as “emergency care” under Section 395.002, and, therefore, under Sections 440.13(1)(e), (2)(e), and (3)(a), are fairly straightforward, and a low standard to meet. This is due in large part because they may be established without any expert testimony. However, just because the claimant received emergency care does not mean that the emergency care is compensable.
Compensability of Emergency Care
The fact that care qualifies as “emergency care” does not automatically make it compensable or automatically put the carrier on the hook for payment. Once the treatment is established as “emergency care” under the statute, the claimant bears the burden of proving two additional elements:
1. that the care was medically necessary; and
2. that it was causally related to the compensable injury.
Unlike the elements required to establish that the care was in fact “emergency care,” the elements of medical necessity and causal relation must be proven by competent medical evidence; lay evidence or testimony is not sufficient.
This distinction in the requirement for expert testimony is critical. Claimants often present their own testimony as the basis of medical necessity and causal connection, but this is not adequate proof.
In Church’s Chicken v Anderson, 112 So. 3d 545 (Fla. 1st DCA 2013), for example, the JCC found that although the care qualified as “emergency care,” there was no competent substantial medical evidence that the care was either medically necessary or causally related to the compensable injury. The Court specifically noted that the claimant’s testimony, without expert evidence or testimony, was insufficient to establish medical necessity or causal relation.
Furthermore, in the JCC opinion Espinoza v. Homestead Concrete & Drainage, the claimant’s request for payment of the hospital bill was denied where the claimant failed to present any expert medical evidence or testimony to prove either causal relation or medical necessity. Again, the Court reiterated that just because a claimant treats at a hospital for the same compensable body part, this does not automatically equate to a finding of causal relation between the treatment and the compensable injury. Additionally, although a claimant may legitimately believe the visit was necessary, per the case law, a claimant’s testimony is not enough.
The Court in Cespedes also discussed the claimant’s burden of proving medical necessity and causal relation through admissible medical opinion testimony. In this case, the Court also focused on the fact that the opinion of the emergency room physician was inadmissible as an expert opinion. Instead, testimony from other permissible means (i.e., authorized providers) is required. Once there is expert testimony establishing both medical necessity and causal connection, then, and only then, may the emergency room physician be deemed “authorized” for purposes of admissibility of their opinions.
While the DCA and the JCC are now addressing this imprecise area of the law, there is still little case law on this topic. Certainly, the question of “to pay or not to pay” is never an easy question to answer. As always, the answer will be fact-specific to each individual case. However, if you are faced with this issue, please feel free to contact our office for recommendations of strategies to defeat the claim.
Lauren L. Feldman
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