WARREN v. STATE FARM MUT. AUTO. INS. CO

PARIENTE, C.J., specially concurring.

I agree with the majority that section 627.736(5)(b), Florida Statutes (1999), is not an unconstitutional violation of due process or equal protection. I also agree that the statute does not unconstitutionally restrict access to courts on its face. However, in my view, there may be circumstances in which this statute results in an unconstitutional denial of access to the courts as applied.

Section 627.736(5)(b) requires most providers of medical services to submit a statement of charges to insurers within thirty days of service or neither the insurers nor injured parties can be held liable for the charges. In Kluger v. White, 281 So.2d 1 (Fla. 1973), this Court held that the Legislature is "without power to abolish" a statutory or common law right of access to the courts "without providing a reasonable alternative to protect the rights of the people . . . to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such a right, and no alternative method of meeting such a public necessity can be shown." Id. at 4 (emphasis supplied). As the majority notes, the thirty-day requirement does not abolish medical providers' access to the courts. The requirement does not even "restrict" medical providers' access to the courts as long as they provide the insurer with their statements of charges within thirty days of treatment, something presumably within the medical providers' control.

Nonetheless, thirty days is a very short period of time. There may be circumstances, as Justice Lewis notes in his dissent, in which a medical provider fails to submit a statement within thirty days through no fault of his or her own. The 1999 version of the statute bars a medical provider from seeking recovery regardless of the reason why the statement was not furnished within thirty days of treatment. Thus, if a medical provider alleged that noncompliance with the statute was due to patient malfeasance or error, the statute would operate to bar the medical provider from exercising the right of access even though the provider had no means to comply. Compare Royle v. Fla. Hosp.-East Orlando, 679 So.2d 1209, 1212 (Fla. 5th DCA 1996) (concluding that where the plaintiff did not lack the capabilities to comply with the presuit requirements for filing a medical malpractice claim, the presuit requirements did not impinge upon the plaintiff's constitutional right to access to the courts), with Sittig v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 567 So.2d 486, 487 (Fla. 1st DCA 1990) (concluding that statute requiring posting of a bond as a condition to bringing an action was unconstitutional as applied to a plaintiff who was financially unable to post the bond). Under these circumstances, the statute would result in an unconstitutional denial of access to the courts as applied.

For these reasons, I conclude that section 627.736(5)(b) is not unconstitutional on its face but may be unconstitutional as applied to specific facts. In this case, because there is no allegation that Dr. Rotstein's failure to submit his bills within thirty days of treatment was a result of incorrect information provided by the insured, section 627.736(5)(b) was not unconstitutionally applied.

ANSTEAD, J., concurs.

LEWIS, J., dissenting.

I respectfully dissent because, in my view, the very limited thirty-day billing deadline provided in section 627.736(5)(b) of the Florida Statutes unconstitutionally impinges upon medical providers' fundamental rights of property, due process and access to the courts. See Art. I, §§ 2, 9, 21, Fla. Const. The requirement that health care providers submit claims for payment to insurers within thirty days of treatment, or otherwise remain totally unpaid for services legitimately rendered, has unconstitutionally initiated state control over health care providers' property rights, business practices and destroyed access to courts for the recovery of totally legitimate accounts due and payable. Professionals who fail to satisfy the precise billing practices — as defined by the state and without room for error, human or otherwise — are deprived of any alternative for redress of nonpayment. Forcing health care professionals to simply absorb unpaid costs and expenses in this manner serves no legitimate purpose, and most assuredly fails to further any "compelling government interest" as required for such a severe encroachment on property rights, due process and the right of access to the courts. See Mitchell v. Moore, 786 So.2d 521, 527 (Fla. 2001) ("[I]f the interest which is being [affected] is a fundamental interest, . . . then the means or method employed by the statute . . . must meet not only the rational basis test, but also the strict scrutiny test."). In passing on the challenged provision, the majority simply endorses the district court's cursory review of the petitioner's constitutional claim, and, in so doing, sends the unmistakable message that — at least in the Court's eyes — all fundamental rights are not created equal. But see Traylor v. State, 596 So.2d 957, 963 (Fla. 1992) ("Under our Declaration of Rights, each basic liberty and each individual citizen has long been held to be on equal footing with every other: `Every particular section of the Declaration of Rights stands on an equal footing with every other section.'") (quoting Boynton v. State, 64 So.2d 536, 552-53 (Fla. 1953)).

Under the statutory provision at issue, if one sustains an injury which renders him or her incapable of communicating his or her correct insurance information to the treating physician for thirty days, then the doctor is essentially barred from receiving remuneration for rendering what could potentially be life-saving services. The effect of this statutory scheme, in essence, forces a health-care provider into personal servitude without compensation and without recourse due to no personal fault or defalcation whatsoever. The right to recover for one's personal services may be totally abolished even though a provider may have done everything humanly possible to comply with all aspects of the law. For these reasons, as further articulated herein, I dissent from the majority's decision.

The Declaration of Rights embodied in the Florida Constitution enumerates the personal liberties guaranteed to every Floridian. It protects property rights, rewards for industry, due process and it expressly provides that "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Art. I, § 21, Fla. Const. As with each of the liberties set forth in the Declaration of Rights, property rights, due process and access to the courts are fundamental rights. See N. Fla. Women's Health Counseling Servs., Inc. v. State, 866 So.2d 612, 635 (Fla. 2003).

As this Court has recognized, legislation that intrudes on a fundamental right is presumptively invalid. See id. Any such encroachment must survive strict scrutiny analysis, with the government bearing the burden of demonstrating that the legislation is strictly tailored to serve a compelling governmental interest. See Mitchell, 786 So.2d at 528; see also Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). Unlike rational basis review, the strict scrutiny standard "imposes a heavy burden of justification upon the state to show an important societal need and the use of the least intrusive means to achieve that goal." N. Fla. Women's Health Counseling Servs., 866 So.2d at 646 (Pariente, J., specially concurring) (quoting Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1033 (Fla. 1999)).

Despite the clear charge to apply strict scrutiny in analyzing fundamental rights, which would include the access to court claim presented in the instant matter along with others, this Court and the district court below have reviewed all of the petitioner's constitutional claims — including the fundamental rights and access to courts claim — under the rational basis standard. Both courts have failed to acknowledge that without fault, health-care providers can be denied access to judicial remedy. In rejecting the petitioner's position that the billing requirement in the No-Fault Law poses an unconstitutional impediment on access to the courts, the majority simply agrees with the Fifth District that "the statute imposes a reasonable condition precedent to filing a claim for certain insurance benefits." Majority op. at 1097. In my opinion, the reasonableness of the thirty-day time limit is not the pertinent inquiry in determining whether the legislation runs roughshod over aggrieved medical professionals' property rights and right of access to the courts. Instead, the courts must determine whether the limitation imposed is the least intrusive means to serve a compelling state interest. See N. Fla. Women's Health Counseling Servs., 866 So.2d at 646. In my view, it is not.

As a threshold matter, neither this Court nor the district court made the required determination that the thirty-day time period furthers a "compelling state interest." Indeed, the majority's discussion of the petitioner's right of access to the courts claim is largely devoid of analysis, and one must consult the Court's due process discussion to identify the legislative objectives purportedly furthered by the billing provision of the No-Fault Law. In the context of the due process analysis, the majority endorsed the Fifth District's determination that the objectives of "reducing bulk billing and ensuring that charges covered under no-fault insurance are reasonable, necessary, and related to the motor vehicle accident are permissible legislative objectives, and that those objectives are reasonably related to the thirty-day requirement imposed upon certain medical providers." Majority op. at 1096. Nowhere does the majority assert or analyze that reduction in bulk billing and permitting insurers to adjudge the reasonableness of claims are interests compelling enough to justify an impingement of the fundamental right of court access nor in the manner adopted here. In my view, no such argument could be made. In fact, I do not agree that foreclosing civil remedies from professionals who submit bills more than thirty days after treatment could survive even rational basis scrutiny. In my view, if disputes arise as to compensation for medical services, the fact finders of our system are more than capable of determining which claims for payment are legitimate and which are not.

Setting the analytical failure of the majority opinion aside, however, and assuming for the moment that the above-stated objectives constitute "compelling state interests," there is no basis upon which this Court could conclude that the thirty-day time period is the least intrusive means of achieving such goals. To the contrary, I believe that totally absolving insurers of the duty to pay medical bills submitted more than thirty days after treatment is as overbroad as it is arbitrary. The billing provision of the No-Fault Law does not discriminate between health care providers that actually practice bulk billing and other suspect business practices and those that do not. It penalizes all health care providers, regardless of whether they or their patients have engaged in illegitimate or wrongful conduct. It also penalizes totally innocent behavior, behavior caused by innocent mistakes and physicians simply having incorrect information. Moreover, there was apparently no consideration given to whether the purported ills justifying a state-mandated billing window would be adequately cured by a forty-five, sixty, or ninety-day deadline.

Our decision in Kluger makes perfectly clear that a legislative enactment impacting the right of access to the courts must provide affected parties reasonable alternatives to litigation. See Kluger, 281 So.2d at 5. Without resort to the courts in an action for nonpayment, a medical professional who fails to submit a bill within thirty days of treatment has only one option — to absorb and write off the time spent and expenses incurred in treating his or her patient. Even in the most competently managed medical practice, billing and accounting mistakes will occur. The statute makes no allowance for that reality. Nor does the statute account for situations in which patients do not provide complete or accurate information regarding their insurance coverage. The statute simply leaves no alternative for medical professionals who provide services in good faith but, for reasons many times unknowable and uncontrollable, are unable to submit a "timely" claim. The statute closes the door to the court on these professionals in a manner which I believe violates controlling precedent. See Moore, 786 So.2d at 525 (determining that the copy requirement of the Prisoner Indigency Statute resulted in an "insurmountable obstacle to a prisoner's right to access the courts").

Equally troubling as the outcome reached in the instant case is the now-distinct pattern this Court has forged in treating fundamental rights differently. Even a casual reader can perceive the strict adherence to constitutional standards and meticulous examination of legislative objectives demonstrated in our recent opinion declaring Florida's Parental Notice of Abortion Act unconstitutional. There, we adhered fervently to the axiom that this Court is "`bound' to construe constitutional rights, which `operate in favor of the individual, against government,' so as to `achieve the primary goal of individual freedom and autonomy.'" N. Fla. Women's Health Counseling Servs., 866 So.2d at 647 (Pariente, J., specially concurring). The majority, bolstered by the specially concurring opinions, subjected each of the government interests asserted by the State in justification of the parental notification provision to an uncompromising, exacting, and decidedly non-deferential analysis. See id. at 628-34; see also id. at 645-57 (Pariente, J., specially concurring).

Yet the majority here endorses a district court analysis that I would argue applies the wrong standard entirely and does not even purport to identify the compelling state interests served by the No-Fault Law's thirty-day time limit. The Court has given a cursory review to the petitioner's access to court claim before deeming the thirty-day time period a "reasonable" condition precedent to bringing an action. The relative shallowness of the Court's analysis in this regard effectively deems the right of a minor female to privacy in her decision on a medical issue more important than the right of a medical professional to protect a property interest and proceed with an action for redress of unpaid claims. Ultimately, the failure to apply constitutional standards equally creates the impression of a judicial preference for certain fundamental rights over others.

In my view, the billing provision in the No-Fault Law cannot pass constitutional muster. The statute improperly renders efficacy in billing practices more important than proper, quality medical care, and will have the impact of diverting health care professionals' attention from matters of patient care to accounting and bookkeeping concerns and possibly impact the availability of medical services. Such an elevation of form over substance is completely inappropriate in matters concerning fundamental rights, which should yield only in the face of compelling government interests which cannot be served by less intrusive means. See Mitchell, 786 So.2d at 528. The majority's decision here brings the state one step further into the environment in which "No-Fault" is synonymous with "no-pay." See Amador v. United Auto. Ins. Co., 748 So.2d 307 (Fla. 3d DCA 1999); Fortune Ins. Co. v. Pacheco, 695 So.2d 394, 395 (Fla. 3d DCA 1997); Martinez v. Fortune Ins. Co., 684 So.2d 201, 203 (Fla. 4th DCA 1996); Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266, 1268 (Fla. 3d DCA 1995). The unstated and underlying premise is clear. If physicians and other health care providers face situations in which legitimate medical services are rendered and necessary costs expended but there is no compensation or means of recouping the economic loss, those injured in motor vehicle incidents may find reduced access to medical care. If bulk billing or illegitimate claims are the problem to be addressed, the solution should be so directed and narrowly tailored and constitutional access to courts should not be denied.

The words of Justice Ervin as contained in his dissent in Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla. 1974), with regard to an early analysis of "no-fault" sounded a warning that we have failed to acknowledge, which is evident today as the majority continues to permit the march against fundamental rights to carry on without even a respectable analysis. He reflected:

There have been many complaints in latter years that the courts are being replaced by bureaucratic administration; trial by jury is "old hat," and that special interests run rampant. There is little in these "no-fault" sections to lead one to believe otherwise.

If despite Section 21 of Art. I of the State Constitution the Legislature from time to time under precedents established by this Court can eliminate the redress of particular injuries, or access to the courts for such purpose, there will be no end or limit to the extent legislative power may be exercised to legislate away particular causes of actions and remedies, and particularly so if some segment of the private sector wishes to be immune from suit and can lobby through its immunizing legislation.

There are certain fundamental rights to redress for injury or wrongs which the Constitution precludes elimination by the Legislature. Those tort remedies which are the subject of this litigation are fundamental. There may be a few borderline classes of claims, e.g., heart balm or breach of promise or some usury causes of action which for reasons of clear public policy and obvious compelling state interest may be eliminated by the Legislature, but not those of the traditional tort kind involved in the instant case where an arbitrary threshold limit of $1000 is plucked out of the air by the Legislature.

Accordingly, I dissent from the action taken by the majority today.

QUINCE, J., dissenting.

I dissent from the majority's determination that section 627.736(5)(b), Florida Statutes (1999), is constitutional; instead I would hold the section unconstitutional as violative of equal protection and access to the courts. Section 627.736(5)(b) provides:

(b) With respect to any treatment or service, other than medical services billed by a hospital for services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 30 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 60 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider's failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. For emergency services and care as defined in s. 395.002 rendered in a hospital emergency department or for transport and treatment rendered by an ambulance provider licensed pursuant to part III of chapter 401, the provider is not required to furnish the statement of charges within the time periods established by this paragraph; and the insurer shall not be considered to have been furnished with notice of the amount of covered loss for purposes of paragraph (4)(b) until it receives a statement complying with paragraph (5)(d), or copy thereof, which specifically identifies the place of service to be a hospital emergency department or an ambulance in accordance with billing standards recognized by the Health Care Finance Administration.

Thus, this section of chapter 627 mandates most health care providers, who have rendered services to persons injured in automobile accidents, to send their bills for such services to the insurer within thirty days of the date of the services. If, with few exceptions, a bill is postmarked thirty-one days after the service was rendered, neither the insurance company nor the injured party is required to pay the medical provider's bill. This section, however, is not applicable to hospitals billing for services rendered at a hospital-owned facility, emergency services rendered in a hospital emergency department, and transport and treatment rendered by an ambulance provider.

It is undisputed that the Legislature has the power to regulate businesses, including the insurance industry. However, any regulation must be reasonably related to a legitimate legislative objective. See Lasky v. State Farm Ins. Co., 296 So.2d 9, 15 (Fla. 1974). I agree with the petitioner that this legislation discriminates between classes of medical providers without any legitimate legislative objective. The statute in question here must be analyzed in the context of the purpose of Florida's No-Fault Law. This Court has often been called upon to determine the rights of the parties (the insured, the insurer and the medical providers) under our State's no-fault system. In making these determinations, we have started with the purposes and effects of this no-fault system. In Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003), we said:

The Florida Motor Vehicle No-Fault Law, sections 627.730—.7405, Florida Statutes (2001), which was enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault. Under this statutory scheme, each driver collects certain statutorily required medical, disability, or death benefits regardless of fault. As this Court has explained, the general policy underlying the no-fault insurance law includes

a lessening of the congestion of the court system, a reduction in concomitant delays in court calendars, a reduction of automobile insurance premiums and an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.

Section 627.736(5)(b) does not further this legislative goal. Instead of aiding persons in receiving medical treatment, I see this section as resulting in two other scenarios. A medical provider who has any concerns that his bill for services rendered will not be mailed within the thirty-day time limit will require the patient to pay before services are rendered or will simply not render services to a patient who will be seeking payment under the no-fault system.

Moreover, the requirement that a medical provider send the patient a bill for services within thirty days of rendering the service does not seem to further any legislative objective as pronounced in the no-fault law. While the medical providers' position in this scheme of no-fault does not seem to be articulated in the statutes, it is abundantly clear to me that this scheme cannot work without the cooperation of the medical community. Doctors must be willing to participate by waiting for payment for their services from the insurance companies. Concomitantly, insurance companies must consider the reasonableness of services and be prompt in their payment of legitimate claims.

Although medical providers should also be diligent in sending bills for services to their patients, there does not appear to be any legitimate reason for requiring some medical providers to be more timely than others. For example, if emergency medical treatment is rendered to an accident victim at a hospital emergency room, that hospital is not bound by this thirty-day provision. Yet, if the same treatment is rendered at a walk-in clinic not owned by a hospital, the clinic is bound by the thirty-day provision. If the same treatment is rendered at a facility owned by a hospital, the thirty-day provision would not be applicable. Such a disparity does not serve any legitimate legislative interest and violates the equal protection doctrine.

As this Court said in Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788 (1946),

"The constitutional right of equal protection of the laws means that everyone is entitled to stand before the law on equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation."

"Equal protection of the laws means subjection to equal laws applying alike to all in the same situation."

. . . .

"Classifications by counties or otherwise for the purpose of prescribing regulations or exactions that in effect impose burdens on some of the citizens of the state that in kind or extent are not imposed upon other citizens of the state under practically similar conditions, with no conceivably just basis for the classifications or discriminations, constitute a denial to those injuriously affected of the equal protection of the laws in violation of the Fourteenth Amendment to the federal Constitution."

Section 627.736(5)(b) treats medical providers that are similarly situated differently without any legitimate reason for the different treatment. Medical providers have a constitutional and vested interest in reaping the rewards of their industry. No valid reasoning has been posited for more seriously abridging those rights of some providers while not others. For that reason, I would find the statute unconstitutional as a violation of the equal protection provision of our constitution.

I also agree with Justice Lewis's dissent to the extent that he finds section 627.736(5)(b) unconstitutional as a violation of the right of access to courts. Not only does the statute treat medical providers who are essentially providing the same services differently, but it also takes away some medical providers' ability to recoup in any forum for their labors. These medical providers cannot get the fee from either the insurance company or the patient, thereby rendering any resort to the courts moot.

For these reasons, I disagree with the majority's determination that the statute is constitutional.