April 28, 2003 at 8:45 PM EST - Updated June 20 at 1:35 PM
Personal injury protection came into existence with the enactment of no fault legislation in the early 1970's. The theory of no fault was to establish an insurance program that would guarantee all those who carried the required coverage, payment of their lost wages and medical bills without regard to fault. No Fault's advocates also argued that insurance premiums would be lowered since no fault would allow injured accident victims to recover their out of pocket losses without having to hire lawyers and without going through the time and expense of a lawsuit. In return for the benefits provided by personal injury protection insurance, the public was forced to give up certain rights. First and foremost, injured victims gave up the right to collect from the party at fault payment that portion of their lost wages and medical bills which their own PIP insurance would pay. Responsibility for such losses was therefore shifted from the negligent driver's insurance company to the injured person's insurance carrier. In addition, injured victims gave up the right to recover for their pain, mental anguish, loss of enjoyment of life and physical suffering caused by their accident related injuries unless they could prove that their injuries reached a certain "threshold". This threshold has changed over the years. However, at the present time, for an injured accident victim to recover for pain, anguish, and suffering he must first prove that his injuries are:
"permanent within a reasonable degree of medical probability"; or
caused a "loss of an important bodily function" ; or
resulted in "permanent and significant scarring" or
resulted in death.
Most lawsuits involve situations where the injured party claims a permanent injury. There are a number of difficulties with this concept, however. First is the fact that doctors do not uniformly agree on what constitutes a permanent injury. For example, when the injury involves damage to connective tissues such as the tendons, ligaments and muscles in the neck and back, imaging studies cannot reveal the damage because it occurs at the microscopic level. In addition, these types of injuries tend to wax and wain over time, and are difficult if not impossible to objectively document. Some doctors rely on "impairment guides" published by the American Medical Association, but even the use of these guides do not provide a complete answer since, by definition, the concept of a permanent physical impairment (which the guides attempt to measure) is different from the concept of a "permanent injury". You would think the legislature would provide some guidance or a definition of what they mean by the phrase "permanent injury". Unfortunately, with all the years that have passed and with all the amendments to the no fault law enacted during that time not once have our elected representatives thought of defining what is meant by a permanent injury. Juries are left to define and decide these questions for themselves without any guidance from the legislature or the courts. The result is uncertainty and inconsistency.
In the early days of no fault, in large measure, the system worked as theory dictated. As time has passed, and especially as medical costs have risen dramatically, the promise of a hassle free system to pay the medical bills and lost wages of accident victims has begun to break down. In recent years, insurance companies have aggressively pursued their right to have the injured party examined by a doctor chosen and paid for by the insurance carrier. While carriers refer to these as "independent medical examinations", investigative reporting by at least one television network has shown that such doctors may be issuing reports that are a far cry from "independent". Quite frequently, the insurance company doctor issues a report stating that further treatment is not warranted. As a result, auto accident victims who were promised a prompt and hassle free system for paying their medical bills find themselves having to hire lawyers to wage battle with their own insurance companies just to obtain the medical care their doctor has recommended. Insurance companies blame trail attorneys, accident victims and allegedly fraudulent doctors for escalating medical claims submitted for payment through PIP. This, of course, ignores the fact that medical costs in general have been accelerating much faster than the rate of inflation for decades. Nevertheless, the legislature has shown its willingness to accept insurance company arguments as proven fact. Accordingly, laws have been passed over the last few years that have made it ever more difficult for injured policy holders to challenge their auto insurance carrier's refusal to pay for necessary medical care. And the 2003 legislature is currently considering bills that will further restrict patient rights.
With the passage of no fault, the public was forced to give up important rights in exchange for a promise that their accident related medical bills would be paid promptly and without difficulty, just as long as everyone who drives an automobile in the state of Florida purchases and pays for state mandated personal injury protection. Nevertheless, today, with astonishing regularity, injured policyholders are having their benefits denied and find themselves brining suit asking nothing more than for their medical bills to be paid, as the law and the insurance industry once promised.
(1) (2) Laws that protect insurance company profits at the expense of their policyholders will continue to pass the legislature until and unless the public is made aware of these proposals, and demands that elected representatives respond to the citizens who elected them to office, rather than the corporate interests who fund their campaigns.
1. For a discussion of the theory behind the no fault law, read the Florida Supreme Court case of ... 2. In the last few years, additional changes to the no fault law have been enacted by the legislature making it easier for insurance carriers to deny or delay payment, and there's more to come. Proposals before the 2003 legislature range anywhere from an outright repeal of no fault to establishing guidelines for treatment of certain injuries, much like an inflexible HMO Enactment of fee schedules, similar to medicare and medicaid, are now an established fact. One pending proposal will even require arbitration before suit, resulting in yet further expense and delay before the insurance company is finally forced to make payment of medical bills. Proposed legislation will even require a patient who sues and loses based upon such technicalities as a doctors use of an improper billing code to pay the insurers medical bills, even though the patient has done nothing wrong. A law that once promised prompt payment of medical bills without the need for lawyers or lawsuits now places the burden on the patient to prove his need for treatment, and penalizes injured victims of automobile accidents just for seeking to enforce their legal rights.