The cities of Gulfport and St. Petersburg appear poised to follow in the footsteps of Tampa, which is expected to approve a domestic partnership registry for unmarried couples in a few days. Gulfport City Council members are scheduled to discuss a similar ordinance during an April 19 workshop. The ordinance would give same-sex and unmarried heterosexual couples the right to make medical decisions for each other if either one had been incapacitated, and to be contacted as a family member if a partner were in an accident.
Absent a "domestic partnership registry" or allowing gay marriage in the state, there is another easy way to achieve the same goals. Good estate planning by domestic partners can go a long way toward providing several essential legal benefits.
First and foremost domestic partners can enter into a domestic partnership agreement, a legal contarct that spells out the legal aspects of their relationship as it relates to ownership or real property and personal property, as well as responsibility for car loans, leases, and other obligations.
Second, a "health care power of attorney" will provide domestic partners with assurance that they may be designated to make important health care decisions for each other, and to be present in a hospital and not told by family members to leave.
Third, a "durable power of attorney" allows domestic partners to make financial decisions for each other in the event that one is unable to act on their own behalf.
Fourth, a "living will" spells out each partners desires regarding being kept on life support in the event of a terminal condition for which recovery is unlikely.
With these documents, most domestic partners will have legal rights that would not otherwise have been available to them, even with a domestic partner registry.
For more information on domestic partnership agreements and estate planning for domestic partners, contact: Scott and Fenderson PA, at 727-321-0099. Free consultations available.
If you are in Florida, you have the right to use force, including deadly force to defend yourself or others, if you have a reasonable fear of imminent peril of death or great bodily harm to yourself or another, if you are defending yourself against an intruder in your residence or automobile. In addition , you can use force including deadly force if you are attacked in any other place where you have a right to be, you have no duty to retreat, and may stand your ground, and meet force with force, including deadly force, if you reasonably believe it is necessary to do so to prevent death or great bodily harm to yourself or another, or to prevent the commission of a forcible felony.
There are several instances of the use of the word IF in this law, which means that one who does stand their ground has to prove the facts that the law requires. As an example IF you reasonably believe you are in iminent danger of harm, or IF you are in your residence, of IF you are in your automobile, or IF you are in a place you have the right to be, and IF you reasonably believe your actions are necessary to prevent harm to yourself or others, etc. Below is the entire statute, which is worth reading in light of the fact that there may be a time when you need to know this law and how it might affect you.
The stand your ground law is codified in the 2011 Florida Statutes, Title XLVI - CRIMES
Chapter 776 - JUSTIFIABLE USE OF FORCE
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Wellington polo mogul John Goodman was found guilty in the death of Scott Wilson.
Goodman slammed his Bentley into 23-year-old Scott Wilson's Hyundai, pushing it into a nearby canal, where it overturned and Wilson drowned. Blood drawn from him three hours after the crash showed his blood alcohol content was more than twice the level at which drivers are presumed impaired. The defense tried to claim Goodman drank after the crash at the "man cave" inside the barn of friend Kris Kampsen. Apparently the "drinking after the crash" defense was not accepted by the jury as a valid defense. Goodman’s lawyers also claimed that as a result of the crash, Goodman received a concussion that left him dazed and confused. Goodman left the scene and did not aid the other driver, who apparently drowned after his car went into a canal.
Goodman is scheduled to be sentenced April 30. He faces up to 30 years in prison.
The real story this year in Tallahassee was what didn't pass, we managed to dodge most of the insurance industry's anti-consumer bills. For all Floridians that didn’t know, the insurance industry is trying very hard to make life in Florida very costly.
Here are the bills that didn’t pass, but expect to see them again next session:
•Citizens Surplus Line Depopulation Bill •HB 245 (Boyd) & SB 578 (Oelrich) •HB 245 and SB 578 represented the greatest threat to Florida policyholders of the entire 2012 session. These bills would have allowed surplus lines carriers, which are not subject to the same state regulation as admitted carriers, to participate in the Citizens Property Insurance Corporation depopulation program. If implemented, surplus lines brokers would have had the ability to review Citizens policyholder underwriting and claims information, then cherry pick the policies they wish to take off Citizens books, leaving the state run insurance company with an even more risky pool of policies, and Florida policyholders with an unregulated carrier unprotected by the Florida Insurance Guarantee Association.
•Expert Testimony – The so-called "Daubert" bill •HB 243 (Metz) & SB 378 (Richter) •These bills aimed to bring the state of Florida’s evidentiary standard into line with Federal standard. Under the new Daubert standard, judges would be given more leeway as "gatekeepers" of science. Obviously, there are problems with this standard, as precious few members of the judiciary are trained scientific experts. The bill would have wreaked havoc on the state’s already overburdened judicial system by forcing re-litigation on an enormous scale.
•Relating to Civil Remedies against Insurers (Bad Faith) •HB 427 (Passidomo) & SB 1224 (Oelrich) •This bill consistently represents the biggest threat to policyholders every year. If passed, this bill would have made it much more difficult for policyholders to file bad faith lawsuits against their insurers. The law would effectively chip away at the state’s bad faith statutes – statutes that exist to ensure your insurance company is holding up its end of bargain and acting in good faith. Erosion in bad faith laws lets insurance companies evade their contractual obligations and harm policyholders without recourse. Thankfully, a coalition of rational Legislators squashed this one early, but don’t be surprised to see a similar bill next year. It’s the insurance industry’s grand prize.
•Hurricane Catastrophe Fund Bill Reduction •HB 833 (Boyd) & SB 1372 (Alexander) •These bills would have reduced the coverage provided by the Cat Fund, which acts a source of reinsurance for Citizens and private insurers, from $17 billion to $12 billion over a five-year period. The bill initially died in committee, but powerful sponsor JD Alexander attempted to sneak it into more innocuous legislation before being rebuked by his colleagues.
•Relating to Residential Property Insurance •HB 753 (Holder) & SB 728 (Ring) •HB 753 and SB 728 included various provisions, including eliminating standard policy requirement; revising F.S. 627.4137 relating to disclosure liability coverage; and revising F.S. 627.701 relating to deductibles.
•Relating to Citizens Property Insurance Corporation •SB 1784 (Hays) •SB 1784 contained a sizable list of anti-consumer changes to Citizens Property Insurance Corporation, including limiting policyholder eligibility, decreasing coverage, and elimination of the 10% a year cap on rate hikes. Thankfully, it was barely considered.
•Relating to the Non Renewal of Insurance •SB 1248 (Hays) •Another terrible bill from Senator Alan Hays, this one provided specified exemptions from the requirement that an insurer provide notification of nonrenewal to an insured.
•Relating to the Hurricane Discount Mitigation Program •SB 1684 (Hays) •This bill -- another bad bill from Hays -- revised provisions relating to the Hurricane mitigation discount program, cut membership to the advisory council, deleted provisions specifying how program funding is to be apportioned, and slashed the Manufactured Housing and Mobile Home Mitigation and Enhancement Program, among other things.
•Relating to Property and Casualty Insurance •HB 4059 (Metz) & SB 1518 (Hays) •HB 4059 and SB 1518 would have repealed F.S. 627.3519, which requires FSC to provide annual report of probable maximum losses, financing options, potential assessments of FHCF and Citizens
•Relating to Property Appraisals •HB 761 (Artiles) & SB 1318 (Fasano) •Filed by two of the biggest consumer advocates in the legislature, HB 761 and SB 1318 would have required Citizens Property Insurance Corporation to comply with conditions and procedures relating to participation of umpires and appraisers in loss appraisal process. These bills would allow either party to submit a written demand to enter into the appraisal process when an impasse is reached on actual cash value, amount of loss, or cost of repair/replacement.
•Relating to Property Insurance •SB 156 (Fasano) •In perhaps the furthest reaching consumer bill filed this legislative session, Senator Fasano’s bill includes provisions that revise the membership of the Market Accountability Advisory Committee of the board of governors of Citizens Property Insurance Corporation to include more representation. The bill would have extended the corporation's annual rate increase cap to sinkhole coverage, and requires an insurer to accept a private structural appraisal under certain circumstances. Perhaps most importantly, the bill would have required an insurer to pay replacement cost coverage without reservation or depreciation for dwelling losses that result from a state of emergency.
•Relating to Property Insurance •HB 1473 (Burgin) & SB 846 (Fasano) •These good bills would have included a number of common sense consumer protections. First, these bills required insurance companies to disclose to their insureds several items, including benefits, time limits and other provisions of a policy that the company may apply to that particular claim. Second, these bills required that insurance companies live up to their own standards of timeliness. If policyholders must present documents in a timely manner, their insurance companies should do the same. Finally, this bill extended the alternative living expenses (ALE) expenses that are provided in a state of emergency to 24 months. ALE expenses are those costs which are incurred when you have to live somewhere else because your home is damaged. This bill would have given policyholders a bit more time in the event of a hurricane – when policyholders should be trying to piece together their lives, not having to worry about arbitrary time constraint.
SANFORD, Fla. - Three weeks ago, an unarmed Trayvon Martin was shot in a gated subdivision in Sanford, just outside Orlando. He apparently had been visiting his father after getting suspended from school. Anger over the fatal shooting of 17-year-old Trayvon Martin is widespread. Thousands are demanding the arrest of the alleged shooter, neighborhood watch volunteer George Zimmerman. And he's not the only one under fire, the Sanford, Fla. police chief is being slammed amid public outcry, on Wednesday night, in a 3-2 split vote, the Sanford City Council, including Mayor Jeff Triplett, backed a no-confidence motion against Police Chief Bill Lee. Lee's fate now lies in the hands of the City Manager Norton Bonaparte.
Zimmerman, claimed self-defense under Florida's "Stand Your Ground" law, which expands the right to claim self-defense beyond the home, has come into focus in this case.
The stand your ground law is codified in the 2011 Florida Statutes, Title XLVI - CRIMES
Chapter 776 - JUSTIFIABLE USE OF FORCE
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Based upon a careful reading of the "stand your ground law" it does not appear that Zimmerman could have "reasonably believed" that he was in danger of death or great bodily harm and would not be able to use this provision of the law as a valid defense in this case, because it only allows a person to "meet force with force, including deadly force" . Based upon the facts known at this time it appears that the young man killed did not have a weapon, but Zimmerman did have a weapon, and as such Zimmerman was not meeting deadly force with deadly force. Furter the facts at this point indicate that Trayvon Martin was walking away from Zimmerman and not presenting a threat of any kind to Zimmerman.
If further appears that the facts at this time are undisputed that Zimmerman shot Trayvon Martin, and as such Zimmerman should be taken into custody and charged with the murder of Trayvon Martin. This is just my opinion based upon the limited facts available at this time, readers should come to their own conclusions.
Hopefully law enforcement will do the right thing and justice will be served for young Trayvon Martin. My heart goes out to his family and friends.
For over 25 years, I've helped hundreds of patients recover from injuries resulting from auto accidents. My heart goes out to those who suffer from long-term pain and weakness of soft-tissue injuries. Mandatory Florida Personal Injury Protection (PIP) insurance is required to assist all victims of accidents up to $10,000 of medical benefit for diagnosis and treatment of such injuries.
That is, until December 31, 2012.
No-Thanks to the recent legislative session passing of HB119, your 'required' benefits will now be significantly limited, and you may be left paying for medical care due to the negligence of others.
On the guise of preventing insurance fraud (which has been the subject of recent insurance company led media hype of "staged accidents." Their answer to "staged accidents" is to upend the current benefits which will result in ANTI-Consumer, ANTI-State Budget, and PRO-insurance company ramifications.
(It seems the only thing this will reduce, is legitimate insurance company payments for legitimate injuries, in exchange for you paying full premiums for reduced coverage)
Here how things will change (with the signature of Governor Scott) to become Florida Law.
Medical benefits for "soft tissue" or non-emergent care are limited to $2,500 at 80% coverage.
Care for emergent conditions will be paid at the $10,000 benefit.
EFFECTIVE DATE:
After Governor Scott signs the bill, the primary provisions in the new law concerning PIP reimbursements go into effect January 1, 2013.
TIME LIMITS
There is a time limit for a patient to receive benefits. Patients must first present for treatment within 14 days of the car accident, to an emergency room or upon referral to a MD, DC or DO and obtain a diagnosis during this time. If ANY condition is not INITIALLY diagnosed within 14 days, it is NOT Covered.
(Including late-onset symptom of conditions (such as headaches, radiation of arm/leg pain, or conditions you "thought may go away"). Just today I had a patient complain of jaw pain of her TMJ, which was evaluated for ligamentous injury (as confirmed on an imaging study) and related to an accident 45 days ago.
EMERGENCY MEDICAL CONDITION (EMC)
As of now, we don't know what the diagnostic codes the PIP law defines as an EMC, but the law refers to an EMC as:
A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
(a) Serious jeopardy to patient health.
(b) Serious impairment to bodily functions.
(c) Serious dysfunction of any bodily organ or part.
NON-EMC Benefits are limited to $2500.00,
Q. If a patient is diagnosed with a non-EMC, the patient's benefit is $2500.
After reaching that benefit, can my health insurance company be billed?
YES. (They can be billed, but Who Pays?)
After receiving a denial of claim from the PIP carrier, Secondary (Health Insurance) may be billed. The patient is responsible for contractual deductibles, copays or co-insurance. (With more claims for auto-related medical benefits, the health insurance companies may raise premiums for care).
Other possible scenarios:
If the patient is under Medicare. Medicare pays.
If the patient is under Medicaid. The taxpayers pay (Medicaid is already a financial burden for the state).
If the patient is un-insured. The patient pays.
If the patient is not 'at fault' - The patient hires an attorney to collect payment (if the other party has adequate coverage). With less PIP benefit for treatment, settlements or judgments will be used to pay off outstanding balances from letters of protection with your treating physician (ie. less money in your pocket, more money for the insurance company).
DIAGNOSTIC TESTING
Unfortunately, diagnostic testing is included in the $2500 limit. A trip to the hospital with diagnostic testing may exhaust your benefits by the time you leave the emergency room.
EXAMINATIONS UNDER OATH
Because of the anti-fraud measure, the insurance company has the power to hold claim payments until you, the patient, respond to an Examination under Oath (EUO). Your medical bills will be put on hold.
MASSAGE AND ACUPUNCTURE EXCLUDED
PIP insurers are not required to reimburse massage "as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture."
PIP PREMIUM REDUCTION?
Although there is language to suggest the carriers to reduce premiums, the carrier may challenge the requirement by justifying why it could not reduce the premiums.
UNINSURED MOTORIST (UM) and MEDICAL PAYMENTS (Med Pay)
From my understanding, Medical Payments policies do NOT follow PIP statutes or limitations.
The problem is that many insurance companies do not offer or suggest these policies in order to be competitive with other insurance companies for your business.
If PIP premiums are eventually reduced, you will still need to purchase additional Med Pay or UM coverage to protect yourself and your family for financial liability. (ie. More money/profit for the insurance companies)
DEATH BENEFIT INCREASED:
The death benefit has been increased to $5,000 in addition to $10,000 in medical and disability benefits used. Previously the death benefit was the lesser of any unused PIP benefit up to $5,000. So, if the medical benefit is unused, the death benefit remains at $5,000. Why don't they just increase the death benefit to $15,000 if medical/disability benefits are unused? Do they not consider death a "serious" medical condition or a disability for gainful employment?
So, WHAT DOES THIS LAW DO?
Takes away conservative treatment of most legitimate auto related injuries (ie. soft-tissue).
Increases (false) perception that "Soft-Tissue" injuries are fraudulent in nature.
Increases (false) perception that those who treat "soft-tissue injuries" are fraudulent (ie. Massage therapists, chiropractors, acupuncturists).
Increases (false) perception that "soft tissue injuries" are not ‘serious' or cause lasting impairment worthy for medical benefits.
Shifts care to the most expensive ER Hospital Diagnostic and MD specialists.
Less treatment available for injured (absorbed by high ER and Ambulance costs)
Limited (non-emergent) chiropractic care increases exposure and dependency (addictions) to pain medications
Increases non-covered costs to consumers and Medicaid (taxpayers)
Increases injured responsibility for care of conditions which present after 14 days (or for the injured who did not get a diagnosis within 14 days.
Benefits insurance companies and stockholders (Less payout) (increased sales of Med Pay or UM for benefits not paid by PIP).
Helps to raise funds for Governor Rick Scott, who accepted a $100,000 political committee contribution from an affiliate of United Auto Insurance 2 days before the voting to pass this bill.
visit Scott and Fenderson PA, here is a short tour
WEST PALM BEACH — polo club founder John Goodman is on trial for DUI manslaughter in Palm Beach County Court . It is alleged that Goodman slammed his Bentley into 23-year-old Scott Wilson's Hyundai, pushing it into a nearby canal, where it overturned and Wilson drowned. It is further alleged that blood drawn from him three hours after the crash showed his blood alcohol content was more than twice the level at which drivers are presumed impaired.
The defense claims Goodman drank after the crash at the "man cave" inside the barn of friend Kris Kampsen, which is why blood drawn from him three hours after the crash showed his blood alcohol content was more than twice the level at which drivers are presumed impaired. His lawyers will likely argue those defenses to a jury when the attorneys present closing arguments on Thursday.
It will be worth watching to see whether the "drinking after the crash" defense is accepted by a jury. The prosecutor has the burden of proving that the accused had an unlawful blood alcohol level "at the time of driving". If the jury believes the defense, that Goodman consumed the alcohol after the crash, then the State may have failed to prove a required element of their case and could prove to be a source of reasonable doubt for the defense.
Goodman’s lawyers claim that as a result of the crash, Goodman received a concussion that left him dazed and confused. A reasonable person might ask why would Goodman decide to retire to a man cave and pound a bunch of alcoholic drinks after a crash instead of getting treatment for his alleged concussion.
A reasonable person might also ask why would Goodman leave the scene and not even try to aid the other driver, who apparently drowned after his car went into a canal. Would it have been possible for Goodman to have saved the other drivers life?
If the jury convicts Goodman on charges of DUI manslaughter and vehicular manslaughter, he faces up to 30 years in prison.
We had a great turn out this past Saturday at the Pinellas Park Chamber in the Park event. Approximately 20,000 people turned out to meet and mingle with other businesses at this annual event. Our "Dont Text and Drive" campaign was a big hit and we gave out hundreds of bumper stickers. If you didn't get your free public service "Dont Text and Drive" bumper sticker, give us a call we still have them. We made lots of new friends and enjoyed meeting everyone that came out.
The new PIP law in Florida incorporates a requirement of finding an "emergency medical condition" Apparently this language is borrowed from federal law Under EMTALA, in which hospital emergency rooms are subject to two principal obligations, commonly referred to as the appropriate medical screening requirement and the stabilization requirement. See 42 U.S.C. § 1395dd (1994). The appropriate medical screening requirement obligates hospital emergency rooms to provide an appropriate medical screening to any individual seeking treatment in order to determine whether the individual has an emergency medical condition. Id. § 1395dd(a).
If an emergency medical condition exists, the hospital is required to provide stabilization treatment before transferring the individual. Id. § 1395dd(b). Under EMTALA, the term "to stabilize" means "with respect to an emergency medical condition ... [a hospital must] provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result or occur during the transfer of the individual from a facility.
The future of PIP claims in Florida may very well hinge on whether an emergency medical condition is found, and whether an appropriate medical screening was conducted to arrive at the determination of an emergency medical condition. There is no requirement that "emergency medical condition" be identified in an emergency room setting, and as such it may be wide open to interpretation by health care professionals as to what constitutes an emergency medical condition.
Two court cases have defined "appropriate medical screening examination" .
In the case of RICKY BURAS ,v. HIGHLAND COMMUNITY HOSPITAL, No. 10-60867 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Dated: July 7, 2011 Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:09-CV-711. The court stated that an "emergency medical condition" is defined to mean: a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in— (i) placing the health of the individual . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part . If the screening examination reveals that the individual is suffering from an emergency medical condition, the individual must be provided with stabilizing treatment. The court went on to say that "appropriate medical screening examination" is not judged by its proficiency in accurately diagnosing the patient's illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms." If an "appropriate medical screening examination" is provided and the claimant's condition is determined not to be an emergency, the hospital is not liable under EMTALA, even in the event of a misdiagnosis that would subject a provider to liability in a malpractice action brought under state law.
In another case, Shirley MARSHALL, v. EAST CARROLL PARISH HOSPITAL , No. 97-30592 United States Court of Appeals, Fifth Circuit. Feb. 9, 1998. The court stated an "appropriate medical screening examination" is not defined by EMTALA. Most of the courts that have interpreted the phrase have defined it as a screening examination that the hospital would have offered to any other patient in a similar condition with similar symptoms. See Summers, 91 F.3d at 1138 ("An inappropriate screening examination is one that has a disparate impact on the plaintiff"); Vickers, 78 F.3d at 144 (emphasis in original) ("EMTALA is implicated only when individuals who are perceived to have the same medical condition receive disparate treatment"); Correa, 69 F.3d at 1192 ("The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly."); Eberhardt, 62 F.3d at 1258 (hospital did not fail to provide "appropriate medical screening examination" where there was no "evidence to show that the screening provided ... was not comparable to that provided to other patients who manifested similar symptoms"); Repp, 43 F.3d at 522 ("a hospital violates section 1395dd(a) when it does not follow its own standard [screening] procedures"); Williams v. Birkeness, 34 F.3d 695, 697 (8th Cir.1994) (plaintiffs must prove that hospital treated patient "differently from other patients"); Holcomb, 30 F.3d at 117 (EMTALA "only requires a hospital to provide indigent patients with a medical screening similar to one which they would provide any other patient"); Baber, 977 F.2d at 878 ("EMTALA only requires hospitals to apply their standard screening procedure for identification of an emergency medical condition uniformly to all patients"); Gatewood, 933 F.2d at 1041 ("the Act is intended not to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances"); Cleland, 917 F.2d at 268-69 ("we interpret the vague phrase 'appropriate medical screening' to mean a screening that the hospital would have offered to any paying patient"). * It is the plaintiff's burden to show that the Hospital treated her differently from other patients; a hospital is not required to show that it had a uniform screening procedure. Williams v. Birkeness, 34 F.3d at 697.
The new pip law has a requirement of finding and emergency medical condition in order for the payment of pip benefits beyond $2500.00
According to the new PIP statute, reimbursement is provided for services and care provided up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition. Reimbursement for services and care provided is limited to $2,500 if any provider determines that the injured person did not have an emergency medical condition.
The new law defines emergency medical condition as follows: "Emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) Serious jeopardy to patient health. (b) Serious impairment to bodily functions. (c) Serious dysfunction of any bodily organ or part.
This definition, whether intentional or not, follows the United States code, which reads as follows: 42 U.S.C. § 1395dd(a) The Act defines an "emergency medical condition", in pertinent part, as (A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in--(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part....
The courts have addressed the definition of emergency medical condition in numerous cases in the context of the Emergency Medical Treatment and Active Labor Act which governs when and how a patient may be (1) refused treatment or (2) transferred from one hospital to another when he is in an unstable medical condition. EMTALA was passed as part of the Consolidated Omnibus Budget Reconciliation Act of 1986, and it is sometimes referred to as "the COBRA law". EMTALA is Section 1867(a) of the Social Security Act, within the section of the U.S. Code which governs Medicare. EMTALA applies only to "participating hospitals" and the purpose of the statute is to prevent hospitals from rejecting patients, refusing to treat them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to pay or are covered under the Medicare or Medicaid programs.
In the case of SCOTTSDALE HEALTHCARE, INC., v. Arizona Health Care Cost Containment System Nos. CV-02-0190-PR, CV-02-0218-PR, CV-02-0220-PR. Supreme Court of Arizona , August 20, 2003. The court identified symptoms manifesting an emergency medical condition, and found that they must not only have arisen rapidly, but more importantly, that they be short-lived.... [A] medical condition manifesting itself by chronic symptoms is not an emergency medical condition...."). To determine whether a patient suffers from an emergency medical condition the focus must be on the patient's current condition and whether that condition satisfies the criteria. The key term is "acute," which denotes that the symptoms manifesting an emergency medical condition must not only have arisen rapidly, but, more importantly, that they be short-lived. In other words, a medical condition manifesting itself by chronic symptoms is not an emergency medical condition, even though the absence of medical care might lead to one of the three adverse consequences listed the statute, "long-term" care was not contemplated by the statute. Nor does the statute limit the determination of when an emergency medical condition has ended to whether "the treating physician has a reasonable degree of confidence that the patient and his lay caregivers can manage his medical condition so that serious adverse consequences are not `reasonably likely' to occur," as urged by the hospitals. Instead, the focus must be on whether the patient's current medical condition—whether it is the initial injury that led to admission, a condition directly resulting from that injury, or a wholly separate condition—is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result in one of the three adverse consequences listed. If the resulting condition is manifested by chronic symptoms it is not an emergency medical condition. Whether a condition is manifested by acute symptoms or by chronic symptoms is a question of fact. See Mercy Healthcare, 181 Ariz. at 99, 887 P.2d at 629. As discussed above, it is neither practical nor possible to define with more precision when an emergency medical condition has ended. Rather, such determinations should largely be informed by the expertise of health care providers.
So what should we expect in Floirda as the new PIP law goes into effect? Will the new statute give insurance companies an easy out by the definition of emergency medical condition? This remains to be seen, stay tuned.
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