Insurer can require that chiropractor be deposed

An insurance company could deny reimbursement to a chiropractor who refused to answer questions under oath about his treatment of two small children involved in a car accident, a state District Court judge has ruled.

Personal injury attorneys say the decision is a new application of the language in the standard personal injury protection, or PIP, policy. And they warn that the ruling could have ramifications for health care providers who seek payments directly from PIP insurers.

In this case, a chiropractor had sent bills totaling $3,655 to Premier Insurance Co. for the treatment of two toddlers who had been involved in a collision. Since the accident had not resulted in any serious injuries, Premier challenged the bills, asking the chiropractor to answer questions under oath.

But the chiropractor refused, arguing that he was not a party to the patients’ insurance contract and thus not obligated to answer questions. When the insurance company refused to pay his bill, he sued.

Braintree attorney Bruce Medoff filed a motion for summary judgment in Salem District Court on behalf of Premier.

Medoff argued that the chiropractor could legally be denied payment because he failed “to perform conditions precedent to recovery” and failed “to cooperate with [the insurer] in regard to its investigation.”

Judge Richard A. Mori of the Salem District Court agreed and found that the chiropractor’s suit could not go forward.

A frequent issue

Medoff said this issue comes up frequently in personal injury cases. “Providers direct-bill [insurance companies] all the time, but [no one] has made this argument that it constitutes seeking payment under the policy, thereby obligating the provider to comply with the contract.”

Christopher S. Brown, an attorney at PIP Collect in Salem who represented the chiropractor, said that the judge “took a leap of faith with the PIP issue and saddled the doctor with a responsibility that, pursuant to the statute, is limited to the patient.”

While the PIP policy and the underlying statute clearly require an insured patient to cooperate with the insurer, answer its questions and, if necessary, undergo a medical exam with an independent physician, Brown said, those rules should not apply to the physicians who treat those patients.

“The doctor is not someone who witnessed the accident or has anything they can say under oath for the benefit of an investigation,” he said.

Due to the plaintiff missing an appeal deadline and other procedural issues, a higher court will not have a chance to consider the issue at this time.

If other courts agree with the logic in this case, it will place a significant burden on doctors who are usually not seeking large reimbursements, Brown added.

“One of the unfortunate conflicts we have to [manage] with PIP law is that the burden of trying to recover a relatively small amount of money is substantial,” he said. “Insurance companies can use onerous discovery tactics and that puts us in a position where doctors aren’t as inclined to seek recovery.”

Ralph F. Sbrogna, a lawyer at Fletcher, Tilton & Whipple in Worcester, said the ramifications of the decision could be complicated.

“I suppose the chiropractor could go after the parents for the cost of the treatments. But what would the parents’ rights then be in relation to the insurer?” Sbrogna asked.

Details of the case

Felicita Muller was driving her 4-year-old and 2 ½-year-old on Jan. 8, 2006, when she was involved in a car accident. When she informed her insurer of the incident, she said she saw no visible signs of injury to herself or her children other than a bruise on one child’s cheek. While all three went to the emergency room, no X-rays were taken. They were discharged and told to return if they felt any pain, according to Medoff’s motion in the case.

They did not return to the hospital but sought treatment from Fall River chiropractor Eugene Kramer, who billed Premier for his services. Premier asked Kramer to explain why and how he was treating the children and sought to question him under oath. He refused.

James F. Murray, a Saugus lawyer who was not involved in the case, said the unique facts likely played a role in the judge’s decision to bar the chiropractor’s suit.

“Children that age undergoing chiropractic treatment – I can see why it caught the eye of the insurance company and why the judge would be rather skeptical,” Murray said. “Had the children been older, the court might not have been as concerned.”

While Medoff agrees that the ages may have made the judge’s ruling easier, he contends that the duty of a health care provider to cooperate extends to anyone who seeks payment from a PIP carrier.

The standard Massachusetts Automobile Insurance Policy provides that the insurance carrier may “require you and any person seeking payment under any part of this policy to submit to an examination under oath at a place designated by us, within a reasonable time after we are notified of the claim.”

Medoff argued that language means that, “having submitted bills to Premier for payment, Dr. Kramer, necessarily, sought payment from Premier pursuant to the applicable policy of insurance” and thus was required to answer the company’s questions.

As long as the insurer’s request is “reasonable,” he said, the party seeking payment must comply.

Medoff said he does not believe that this case will discourage doctors from treating patients whose care will be reimbursed by PIP carriers.

“What the court really focuses on is that the request for an examination under oath still has to be reasonable,” he said. “I would submit that asking a chiropractor to discuss his basis for treating a very young child is not unreasonable.”

Questions or comments can be directed to the writer at: jack.dew@lawyersweekly.com