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Doctoring the definition

March 3, 2015

petervickery


Is a physical therapist a physician? Yes, said the Supreme Judicial Court, so long as we are talking about “physician” in the context of motor-vehicle insurance law.

In Ortiz v. Examworks, Inc., the Court looked at Massachusetts General Laws chapter 90, section 34M, paragraph three, which requires that people applying for personal injury protection (PIP) benefits have to submit to “physical examination by physicians selected by the insurer.” It held that the term “physician” includes physical therapists.  This is a case where the Court arrived at the right destination by an unfortunate route, using statutory construction to solve a problem that was the Legislature’s to fix.

When the plaintiff, Flor Ortiz, applied for PIP benefits the insurer, Progressive, asked Examworks to provide an independent medical examination (IME). The IME that Examworks set up for Mr. Ortiz was with a physical therapist, not a medical doctor. Although the physical therapist’s report did not become part of the court record, on the basis of what happened next it seems fair to surmise that Mr. Ortiz deemed it a disappointment.

Mr. Ortiz sued, alleging that by submitting him to an exam with a physical therapist not a medical doctor Examworks had violated, among other things, the Consumer Protection Act (which provides for multiple damages and attorney’s fees). Examworks filed a motion to dismiss, which the Superior Court granted, and Mr. Ortiz appealed. The case ended up before the Supreme Judicial Court. Ruling that the court below was correct to dismiss the case — a just outcome, I believe — the SJC chose to imbue the word “physician” with more elasticity than modern custom and usage would seem to allow.

What did the Legislature mean when it used the word “physician,” asked the SJC? The relevant provision became law in 1970, so the Court decided to consult the 1969 edition of the American Heritage Dictionary, which states that the word “physician” includes “any person who heals or exerts a healing influence.” Bingo and ergo. Exerting a healing influence is something a physical therapist does, therefore a physical therapist is a physician. Of course, so is Barney, by that standard.

Should the Legislature not have been more precise when it created the PIP system? Not at all, said the Court, quoting dicta from a 1978 decision: “In so large a legislative enterprise… there are likely to be casual overstatements and understatements, half-answers and gaps in the statutory provisions.”

The bigger and more complicated the law, in other words, the greater the degree of carelessness we should expect from lawmakers. Ask them to enact a law establishing the official state folk dance, and they will do themselves proud. But give them something as complex as, say, health care and insurance, and they will inevitably descend to a level of slap-dashery that would embarrass even the drafters of the ACA. What a dismally low standard for the judicial branch to apply to the legislative branch.

Should the law require a PIP applicant to submit to examination by a medical doctor, dentist, or physical therapist of the insurance company’s choosing? Perhaps. But does it? Not as currently written. Rewriting the statute so that it does is a task for the Legislature alone, not for the courts.

PV for cropping bandw

Peter Vickery, Esq.

 

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