PRESS RELEASE from ATTORNEYS LUKE LIROT & ADAM LEVINE Regarding Sept 17th Appellate Court Hearing before a 3 Judge Panel INTRODUCTION This communique will give you an update on the current status of the 2012 PIP Act Injunction Appeal, where we are and how we got here. On September 17, 2013, Adam Levine, appearing with Luke Lirot, presented oral argument opposing the State’s appeal of the temporary injunction granted by Judge Lewis in Leon County. He articulated well the position that the revisions to the 2012 PIP Act are unfair, unjust, and unreasonable. The Act is unfair, because it singles out Licensed Massage Therapists and Acupuncture Physicians to deny compensation for providing care and because they limit the care a Chiropractor may provide. The Act is unjust, because they require all citizens to purchase $10,000 in coverage but only requires the insurer to provide $2,500 in benefits. Finally, the Act is unreasonable, because the limitations and restrictions imposed by the Act have nothing to do with fraud prevention or good medical care. THE INITIAL CHALLENGE As a result of the “paradigm shift” that the State argued the Legislature initiated by the 2012 revisions to PIP, we sued the State for declaratory relief and requested a temporary injunction based on the violation of numerous Constitutional grounds including: the single subject rule, separation of powers, equal protection, due process, an improper taking, and access to the courts. It is important to understand that standing refers to one’s right to sue another. We asserted, rightfully, that the Plaintiffs possessed standing to challenge this law on the basis of all of the Constitutional violations, as Judge Lewis found. Temporary injunctions require, first, a showing of “irreparable harm,” not just an economic harm, but a harm that cannot be compensated by money damages. These damages included the loss of care, the loss of referrals, and the loss of quality of the doctor patient relationship. Also necessary is a showing that the plaintiffs have a reasonable likelihood of success, that the public be best served by the injunction, and that those injured will suffer an inadequate remedy without the injunction. During the hearing for temporary injunction, Judge Lewis agreed that all the Plaintiffs possessed standing to pursue all of the challenges asserted. After the temporary injunction was granted, the State appealed and filed a Notice of Automatic Stay, in an effort to prevent the injunction. We filed a Motion opposed to the Automatic Stay and prevailed at hearing with Judge Lewis when the Automatic Stay was vacated. The State appealed this to the First District Court of Appeal who affirmed Judge Lewis’ vacation of the automatic stay. THE APPEAL PROCEEDINGS After extensive briefing where multiple insurance lobbies supported the State that appears more concerned with the insurance carriers than with its own citizens, and after one of the State’s own appellate attorneys involved in the drafting the appeal was himself appointed to the First District Court of Appeal, on September 17, 2013 we argued the Temporary Injunction at the First District Court of Appeals. (oavideo.1dca.org/OAPlayer.aspx?ID=1307&CaseID=43680&File=131355.smil) The three judge panel included: Judge Stephanie Ray who was appointed by Governor Scott in 2011; Judge T. Kent Wetherell, II, who was appointed by Governor Crist in 2009; and Judge Bradford Thomas who was appointed by Governor Bush in 2005. The argument centered on the concept of standing and the argument related to “access to the courts.” Because Judge Lewis limited the grant of the Temporary Injunction to only the argument involving the “access to the courts” issue, the Judges had a difficult time understanding how the named plaintiff healthcare providers had their access to the courts limited by the challenged provisions of the Act. We argued that their “standing” was conferred because they subrogated the right of reimbursement from their patients and that the law’s limitation on their patients’ access to the courts flowed to the healthcare providers. Unfortunately, this argument seemed completely alien to the appellate court. To be clear, this concept is not as daunting as it was suggested. Every citizen in the State of Florida, if they hope to drive, is required to carry $10,000 coverage in PIP insurance, theoretically to facilitate a “swift remedy” for their injuries, in exchange to “access to the courts” where the injured party would otherwise seek relief from the negligent party. The 2012 PIP Act deprived every citizen of this delicately balanced “trade off,” cheating every citizen out of these benefits by giving them only 25% of the coverage they paid for, unless they could establish the undefined and nebulous “emergency medical condition.” Even though the elimination of massage therapists and acupuncture physicians, and the limitations imposed on chiropractors were not “appellate issues” based on the scope of the Circuit Court order, the “standing” we relied on was based on the fact that every citizen, including our Plaintiffs, is being cheated and harmed by even this singular issue of access to the courts. Obviously, this may be more attenuated than the arguments about the direct damages caused by being eliminated from being able to earn a living; the bottom line is that our Plaintiffs had absolute standing to raise the “access to the courts” argument. THE FUTURE Frustratingly, the appellate panel, either because they were simply incapable of grasping this basic argument, or, worse, because of political pressures inherent in this case, seemed openly hostile to the “standing” issue we urged. It is not clear when the First District Court of Appeal will rule or what that ruling will issue, but this is really a minor consideration. This is only a preliminary battle that, candidly, doers not even establish the “law of the case.” We are working on efforts to respond to the appellate ruling whether it affirms or dissolves the temporary injunction. Unfortunately, we are fighting a State with a political agenda and endless resources, second only to the insurance lobby’s resources. We intend to modify and amend our lawsuit as necessary to protect the citizens of Florida. We are appalled that our elected officials care more for the insurance carriers than they do for their own citizens and we are dismayed by the vast majority of citizens who seem oblivious and complacent about protecting their rights. In closing, we appreciate your help and support and specifically want to extend our sincerest gratitude to Vivian Mahoney, an LMT that is based outside Florida, and to Kevin Johnson, CEO of Advanced Diagnostic Group, who supported this fight from the beginning, along with our valued Plaintiffs, all of whom have been steadfast in “rallying the troops.” If everyone remains united and willing to contribute, economically and otherwise, the effort to protect our rights will be rewarded with justice! Best wishes and warmest regards, Luke Lirot and Adam Levine
Posted on: Sat, 28 Sep 2013 14:42:02 +0000
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