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Florida First DCA rules that PIP statute does not create a private cause of action for an insured to challenge the reasonableness of a health care provider’s charges

On March 12, 2020, in MacNeil v. Crestview Hospital Corporation, No. 1D18-1958, the Florida First DCA affirmed a trial court ruling dismissing the plaintiff’s putative class action complaint which sought a declaration as to whether the defendant hospital charged the plaintiff and other similarly situated patients unreasonable rates for medical services in violation of section 627.736(5)(a), Florida Statutes (the “PIP statute”). The First DCA agreed with the trial court that the PIP statute does not create a private cause of action for individual PIP insureds. The plaintiff contended that he was entitled to the declaration because of the existence of unspecified, potentially available civil remedies for the Hospital’s violation of the statute. Cf., Herrera v. JFK Med. Ctr. Ltd. P’ship, 87 F. Supp. 3d 1299, 1308 (M.D. Fla. 2015) (holding that an insured could challenge the reasonableness of a hospital’s charges under the PIP statute under common law theories of breach of contract, breach of the implied covenant of good faith and fair dealing, and a violation of FDUTPA), partially rev’d on other grounds, 648 F. App’x 930 (11th Cir. 2016). However, the First DCA pointed out that the plaintiff had asserted no causes of action that would show that a justiciable controversy exists on which to predicate a declaratory judgment claim: he never alleged that he was in doubt about his rights under any contract or that another cause of action depended upon a determination of the reasonableness of the charges under the PIP statute. This raises the question whether the complaint could simply be amended to add the sort of claims made in Herrera and thereby survive a motion to dismiss the declaratory judgment count of the complaint.