Doctors Warn That MRIs Are Often Overused
Here is a link to a New York Times article that provides confirmation that MRIs are overused and not clinically important unless correlated with symptoms.
Trial Win!
SHM would like to congratulate Matthew Scarborough on his recent trial victory in Polk County, FL. Faced with clear liability, horrific property damage photos of the Plaintiff’s automobile and 180,000 in outstanding medical bills, the jury returned a verdict of $24,000.00. The Plaintiffs rejected proposals for settlement totaling $135,000 (the remaining policy limits of the insurance policy). Motions for attorneys fees and costs against both Plaintiffs are pending.
Article in Latest TBT Declares Tampa “Epicenter of Staged Car Accidents in Florida”
Page 16 of the August 17, 2011 edition of the Tampa Bay Times (TBT) has some persuading statistics and commentary about the issued of staged car accidents throughout Florida. It is certainly worth a read.
Click here to open article in new window
SECOND DCA AGAIN REJECTS LIMITED DISCOVERY OF PRIOR COMPULSORY EXAMINATIONS TO IMPEACH IME PHYSICIANS
The Second District Court of Appeal held in USAA Casualty Insurance Company v. Callery, 36 Fla. Law Weekly D1230a (Fla.2nd DCA June 10, 2011) that a trial court’s order limiting the production of the last 20 compulsory examination reports of an IME doctor with the patient-identifying information redacted was error. The trial court’s order directed that only the physician’s conclusion/impressions, signature, the date of the report, and the name and address of the receiving attorney were to be be provided. Mr. Callery hoped to impeach the IME physician by showing that his reports routinely and uniformly supported insurers. The Second DCA refused the trial court’s order on the grounds that section 456.057 (7) (a) Florida Statutes prevents a health care practitioner from discussing a patient’s medical records without the patient’s written authorization. According to the Second DCA, the trial court did not provide “alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.”
Click here to read more »
Staged Crash Crackdown
The Tampa police busted these clinics for staging accidents in Hillsborough County:
Doctor Florida Rehabilitation located on 2123 W. Dr. MLK;
Injury Health Care Therapy located on 5537 Sheldon Road;
Recovery Rehabilitation Services located on 7025 W. Hillsborough Ave.; and
Healing Touch located on 6821 W. Hillsborough Ave.
We will continue to keep you posted on these developments.
Click here for more information: http://www2.tbo.com/news/news/2011/may/13/MENEWSO3-staged-crash-crackdown-ar-207043/
April 2011 Legal News & Updates
Insurance Adjusters Beware—Read the Subpoena Duces Tecum
In Cartaya vs. Sanchez-Arias, the Hillsborough County Court entered sanctions against the defending insurance company after the insurance company failed to schedule a hearing on its Motion for Protective Order to be heard prior to the deposition of the company’s adjuster. The Court also sanctioned the insurance company because the adjuster appeared at the deposition without his claim file or claim notes, which the Plaintiff requested in its subpoena duces tecum. Based on this ruling, defending insurers should read subpoena duces tecums carefully, and prepare and set for hearing before their depositions any Motions for Protective.
Questionable Clinics That Should Be On Your Radar
As many adjusters adjusting claims in Florida know, there is certainly no shortage of clinics that will say anything to support a claimant and/or plaintiff’s claim—that is, diagnose and “allegedly” treat non-existent injuries, and even commit fraud by generating false medical records. Insurance companies have also routinely observed these clinics get away with this sometimes illegal activity with little or no interference from law enforcement.
Despite the fact the State rarely enforces its laws against insurance fraud as much as those in the insurance industry would like, many of these clinics perform another criminal act that exposes their fraudulent nature—drug dealing.
For approximately the last two years Hillsborough law enforcement has been working vigorously to shut down these so-called “pill mills,” which are clinics who supply prescription pain medications to addicts. The clinics in Hillsborough County the authorities have already closed include Superior Injury Center of Tampa, Habana Spine and Medical Center, and 1st Medical Group.
Based on this information, this firm recommends adjusters revisit their Hillsborough County claims in order to determine if any of the claimants treated for their injuries at any of these clinics. If so, then the adjuster will have additional ammunition for the defense of the claim.
SHM Wins Another Motion to Dismiss for Fraud Upon the Court
When a defendant moves to dismiss a lawsuit because the plaintiff has committed a fraud upon the court, the defendant is basically asking the judge to sit in the shoes of the jury in order to pass judgment on the plaintiff’s credibility. Since such a motion contradicts the long line of jurisprudence in which our legal system delegates the judging of a plaintiff’s credibility to the trier of fact (who in most circumstances is a jury), most judges are reluctant to grant such motions.
Despite the obstacles standing in the way of obtaining an Order dismissing a case for fraud upon the court, Scarborough Hull & Miller has been extremely successful in obtaining such Orders. In fact, in April of 2011, Kevin M. Davis of Scarborough Hull & Miller not only obtained a dismissal based on the plaintiff’s fraud, but even an Order permitting the firm’s client to pursue fees and costs against the plaintiff pursuant to Section 57.105, Florida Statutes.
In the Hillsborough County case of Burns vs. Mitchell, the Plaintiff alleged to have suffered a knee injury after being stuck by a taxicab driven by the Defendant. Vigorous investigation, however, uncovered two witnesses, who attested under oath the Plaintiff struck himself in the knee with a crowbar in order to “invent” a claim against the Defendant.
The Defendant then sought dismissal for fraud and for sanctions upon learning this material. The Plaintiff’s attorney subsequently withdrew—leaving the Plaintiff unrepresented for the hearing. Since the Plaintiff neither filed any response, nor appeared for the hearing, the Pinellas County Court dismissed the action for fraud, and issued an order entitling the Defendant to fees and costs.
MOTION TO DISMISS FOR FRAUD GRANTED!!!!!!
Scarborough, Hull & Miller congratulates its managing partner, Matthew Scarborough on his recent victory. Mr. Scarborough filed an extensive initial Motion to Dismiss for Fraud which was denied. After additional discovery, the court entertained a renewed Motion to Dismiss for Fraud which was granted just two weeks before trial. The plaintiff was asking for medicals and lost wages totaling over two million dollars. The entire opinion by the trial judge is attached here. Should you have any questions about this opinion or Motions to Dismiss for Fraud, don’t hesitate to contact Matthew Scarborough at matt@shmlegal.com. Scarborough, Hull & Miller also has an extensive seminar on Fraud Defense, so should you need your entire staff to obtain CE credits and a better understanding of this defense, don’t hesitate to contact Liva Rivera at liva@shmlegal.com to schedule a seminar for your company.
Public Policies Do Not Require Suit Against Uninsured Motorist
The Fourth District Court of Appeal in Saris v. State Farm Mutual Automobile Insurance Company, determined that a uninsured motorist policy provision requiring the insured or policyholder to sue the owner or driver of an insured motor vehicle was void against public policy. Therefore, the Plaintiff does not have to sue the tortfeasor prior bringing suit against the uninsured motorist carrier.
Conflicting Authorities When PIP Benefits Cut Off
Apparently there are conflicting authorities as to when an IME permits an insurer to cut-off PIP benefits. According to the Eleventh Judicial Circuit, the question as to when an IME serves to cut-off an insurer’s obligation to pay PIP benefits is a question of fact for the jury. United vs. Asclepius Medical, Inc. (2010). In United vs. Asclepius Medical, Inc., the Circuit Court addressed in its appellate capacity whether the date of the IME, the date of the subsequent cut-off letter, or the date the clinic receives the cut-off letter is the date when the insurer can cut-off paying PIP benefits. The Court evidently refrained from ruling on the issue by holding such a scenario represents a question of fact for the jury to determine. Alternatively, however, the Eleventh Judicial Circuit held in United vs. Canal (2010) the date of the IME is the date on which the insurance company can cease making PIP benefit payments. Based on these conflicting rulings in the Circuit Court, we can expect the Third District Court of Appeal to resolve this issue.
Alert: Plaintiffs allowed to “blackboard” medical bills?
Alert: The First District Court of Appeal in Nationwide Mutual v. Harrell has created yet another conflict in the ongoing saga as to whether or not a Plaintiff is allowed to “blackboard” his or her outstanding medical bills when those same bills have been paid by a collateral source as outlined by Florida Statute Section 768.76.
The Harrell court determined that when a private insurer (not Medicare) makes the payments the Plaintiff under common law should be able to present the full amount of the bills for the juror, not the amounts unpaid by the insurer and subject to a lien.
You can anticipate Plaintiff’s attorneys utilizing this case to build their “outstanding” bills when a private health insurer pays a portion of the bills.
