Originally published, here.

Tuesday, March 15, 2016 System Participants Debate Impact of Change in Expert Medical Evaluator Statute 5.0

by Sherri Okamoto (Legal Editor) State: FloridaTopic: Top A change in the way medical disputes are decided is coming to Florida.

Florida Statues Section 440.13 requires that a judge of compensation claims appoint an expert medical advisor when there are conflicting opinions between the parties’ medical experts.

Last Thursday, Gov. Rick Scott signed off HB 613, which tweaks the statute so that judges can appoint an EMA of their choice – rather than only those certified by the Department of Financial Services.

Gov. Rick Scott

Gov. Rick Scott

Florida only has 150 doctors certified as EMAs, despite being the third most populous state in the nation.

Earlier this month, the DFS relaxed some of the requirements for doctors to become EMAs. In a further effort to bolster the ranks of expert medical evaluators, the department also upped the amount of pay these providers receive.

The list of certified EMAs grew longer by three names in the last week – but once HB 613 takes effect Oct. 1, they will no longer be the only doctors able to resolve medical disputes.

Ashley Carr, a spokeswoman for Florida Chief Financial Officer Jeff Atwater, issued an emailed statement Monday saying that HB 613 “aimed to extend the state’s network of EMAs.”

EMAs “are central to a successful workers’ compensation system in Florida” because “their medical expertise and the third-party reviews they conduct provide important information to the department and to judges when disputes arise,” she said.

The CFO supported the bill sponsored by Rep. Jennifer Sullivan because the department “continuously looks for ways to improve the delivery of the services we provide to the people of Florida and to make our efforts more efficient,” Carr added.

Rep. Jennifer Sullivan

Rep. Jennifer Sullivan

W. Rogers Turner, a defense attorney with Hurley, Rogner, Miller, Cox & Waranch, on Monday said he thought the new law will be “making it easier for a judge to get an EMA” in light of how few doctors are on the certified list.

He said he has rarely had trouble getting an EMA for his cases where he practices in Winter Park, but he expected HB 613 to make more of a difference in the less-densely populated parts of the state or for cases where there are no certified EMAs in the specialty needed.

There are 84 doctors who specialize in orthopedic surgery on the list – but there’s not one pulminologist, endocrinologist or dentist.

Turner said he is not a huge fan of the EMA system, since “I think judges are smart enough to look at the medical evidence and figure it out on their own.” But he also said he didn’t expect HB 613 to “have a humungous effect” on how things are done.

Come October, if a judge needs to appoint an EMA, Turner predicted the judge will just call on a doctor who previously appeared before the judge and was found to be credible, and little else will change.

But David Langham, the deputy chief judge of the Florida Office of Judges of Workers’ Compensation Claims, said he had his doubts that HB 613 will be so simple to implement.

“In my mind, this creates more questions than answers,” he said Monday. “It’s going to take some cases to sort this all out.”

Langham said he understands the new law as allowing the parties to agree to have a doctor who is not on the list act as an EMA. If the parties cannot agree on a doctor, the law requires a judge to make a selection from the EMA provider list. Thus, he said, “it will be easier to get appointed if you’re on the list and you’re in the business of providing these sorts of medical opinions.”

If a certified medical adviser within the relevant medical specialty is unavailable, HB 613 provides that the judge “shall appoint any otherwise qualified health care provider to serve as an expert medical adviser without obtaining the department’s certification.”

Langham said the use of “shall” generally indicates a mandatory duty, so the judges must appoint a doctor to act as an EMA if a certified EMA is “unavailable.”

But Langham said he’s not certain what “unavailable” means, and he said he anticipates this will be a source of disputes.

He said he personally would have “trouble justifying someone with an injury being sent six to seven hours” to see an EMA, but it remains to be seen if distance will be a factor in determining availability.

Langham noted he also had concerns with determining what is the “relevant medical specialty.”

If there are two orthopedic surgeons who have a disagreement, then he said it may be simple to determine. But if the doctors are from two different specialities, then the choice becomes harder.

A third potential problem area, Langham said, is the lack of a definition of what it means for a doctor to be “otherwise qualified” if the doctor is not certified as an EMA. He said he had questions about who is supposed to vet the qualifications of a doctor to serve as an EMA, and how much of an inquiry must be made.

On his blog, Langham proposed that a judge could potentially select a doctor with a significant history of malpractice to serve as an EMA, and this would appear to be within the discretion granted to the judge under HB 613.

Langham suggests that the uncertainty created by the change in the law may incentivize litigants to start using a “consensus independent medical examination” instead of an EMA, and this may be the start of “how the EMA ends in Florida.”

EMAs have been part of Florida’s comp system for over two decades, and H. George Kagan, a defense attorney for Miller Kagan Rodriguez & Silver, said it has long drawn criticism for taking the job of judging away from the judges.

It is the EMA who is the “tie breaker” when there is a medical dispute, Kagan explained. And since Florida law treats the EMA opinion as presumptively correct, many saw the legislative creation of the scheme as “a vote of no confidence in the judiciary and the social utility of adjudicated hearings.”

Kagan had one of the first cases to go up to the 1st Circuit Court of Appeal on the requirements of the EMA statute, called Palm Springs General Hospital v. Cabrera.

In that case, the judge said he would not appoint an EMA because doing so “would obviate this judge’s ability to weigh all the extensive evidence presented before me.” The judge also took issue with having the EMA be “the virtual adjudicator in most truly contested matters.”

The 1st DCA minced no words in saying this was a “wholly insufficient basis” for the judge to “disregard the clear expression of legislative policy,” and reversed the judge.

Kagan said that based on his understanding of what HB 613 entails, it would seem to “feed the impression some have garnered that the Legislature isn’t interested in the quality of the resolution of a case so much as it is the expeditious resolution of a case.”

Rayford Taylor, a defense attorney with Casey Gilson, said he believes “there are a lot of people who would like to do away with the EMAs altogether” – but he’s not one of them.

“I think it works pretty well, personally,” Taylor said.

“When you have two doctors who are basically on the opposite ends of the pole, getting a third person to look at it from another perspective” provides a valuable insight that’s “good for the system,” he said.

And since these are medical issues being disputed, Taylor said, “a doctor ought to be giving the judge their best medical opinion.”

As the pool of doctors becoming certified to be EMAs has shrunk over the years, Taylor said he thought HB 613 provides the “opportunity for a lot more flexibility” in getting medical disputes resolved.

“If it becomes a mechanism for judges to appoint the same doctor over and over, then I’m not sure that’s a positive development,” Taylor said. “But we’ll just have to see how it works.”