10 Fla. L. Weekly Supp. 59b
Insurance — Personal injury protection — Medical expenses — Transportation costs — Insured seeking reimbursement for cost of transportation failed to meet burden to prove that treatment for which transportation was incurred was reasonable and necessary
TOTAL REHAB AND MEDICAL CENTERS, INC. (as assignee of Liliana Londono), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 00-18633 COCE 54. October 31, 2002. Zebedee W. Wright, Judge. Counsel: Robert E. O’Connell, Robert E. O’Connell, P.A., for Plaintiff. Kendrick J. Blackwell, Adams, Blackwell & Diaco, P.A., Tampa, for Defendant.
[Affirmed at 12 Fla. L. Weekly Supp. 216a.]
AMENDED FINAL JUDGMENT
THIS CAUSE having come before the Court at a trial which began on Wednesday, August 21, 2002, and the Court having heard argument of counsel, reviewed the Court file and reviewed the evidence presented at the trial of this cause, hereby enters this Final Judgment in favor of the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, 3600 W. Commercial Boulevard, Lauderdale Lakes, Florida 33309, and states as follows:
FACTS
Liliana Londono was involved in a motor vehicle accident which occurred on June 16, 2000. Ms. Londono was insured with Defendant under a policy of insurance which provided PIP benefits in accordance with the Florida No-Fault law. Ms. Londono began treatment with Plaintiff and executed an assignment of her PIP benefits to the Plaintiff. Plaintiff began submitting bills to Defendant for payment under Ms. Londono’s PIP coverage with Defendant. Defendant processed plaintiff’s bills for payment. All of plaintiff’s bills, with the exception of four, were either applied appropriately to the deductible, paid in full and on time or, where late, paid with all appropriate statutory interest.
The only issue involved in three of the four bills which were not paid in full by Defendant was a mileage charge. Specifically, plaintiff submitted three bills to Defendant which included $1.75 per mile charge for transportation which was provided by plaintiff to Ms. Londono for treatment at plaintiff’s facility. In each of its bills for dates of service June 19, 2000, June 27, 2000 and August 15, 2000, plaintiff submitted a charge for $17.50 which represented 10 miles for transportation at a charge of $1.75 per mile. Defendant received the bills for each of these three dates of service and processed them for payment. Explanations of Reimbursement were generated for each of these dates of service which indicated that Defendant reduced the mileage reimbursement to 33.5 cents per mile in accordance with, among other things, the amount allowed per mile by the IRS for an individual’s per mile allowable tax deduction for business related travel. The fourth bill which was not paid in full by Defendant was for an August 8, 2000 date of service. Plaintiff alleged it submitted the bill to Defendant but Defendant had no record of ever receiving said bill. The plaintiff had a certified mail green card indicating a proof of mailing for every other bill which it sent to Defendant in this matter other than the bill for the August 8, 2000 date of service. The August 8, 2000 bill was for $187.50 which included a mileage charge of $17.50 and other charges for various physical therapy modalities.
ANALYSIS
A jury trial commenced in this matter on August 21, 2002. In its case in chief, the Plaintiff called four witnesses. The Plaintiff first called Sandra Hernandez who was employed by Plaintiff in an administrative capacity at the time Ms. Londono was treating with Plaintiff. Ms. Hernandez was not licensed in any capacity as a healthcare provider nor did she actually render any treatment to Ms. Londono. Plaintiff also called Winston Hernandez as a witness. Mr. Hernandez was the owner of the Plaintiff corporation, Total Rehab & Medical Centers, Inc., during the time Ms. Londono treated with Plaintiff. Mr. Hernandez was not a licensed healthcare provider in any capacity nor did he actually render any treatment to Ms. Londono. Plaintiff also called its accountant, Sam Sammi, CPA, who testified regarding plaintiff’s transportation expenses and gave an opinion regarding a reasonable per mile charge by plaintiff. Finally, Plaintiff called a tax attorney, Richard Lehman, Esquire, as a tax expert to testify regarding whether $1.75 per mile was a reasonable per mile charge and whether Defendant’s reimbursement rate of 33.5 cents per mile was reasonable. The Plaintiff also admitted certain documents into evidence, including the actual HCFA-1500 claim forms generated by Plaintiff and allegedly sent to Defendant, the Explanations of Reimbursement generated by Defendant, Plaintiff’s financial information regarding its transportation expenses, and documents referred to as “super bills” by plaintiff which were documents signed by Ms. Londono and indicated the date of treatment and the various modalities allegedly rendered on said date of service. Plaintiff also read some of Defendant’s Interrogatory answers into evidence. The Plaintiff then rested its case.
At the close of Plaintiff’s case, Defendant moved for Directed Verdict. The Defendant argued that pursuant to Derius v. Allstate Indem. Co., 723 So.2d 271 (Fla. 4th DCA 1998), the Plaintiff had failed to meet its burden of proving that the treatment rendered by Plaintiff was reasonable and necessary. It was Defendant’s position that Plaintiff’s mileage charge was only payable under the PIP Statute and case law interpreting the PIP Statute if the transportation itself was for treatment which was reasonable, necessary and related. As to the bill for the August 8, 2000 date of service which Defendant alleges it never received, Defendant made the same argument under Derius that even if Defendant had received the bill the Plaintiff still had the burden of proving that the underlying treatment for which Plaintiff was billing Defendant was reasonable, necessary and related.
CONCLUSIONS OF LAW
In passing on a Motion for Directed Verdict, the Court must view the evidence and all inferences of fact in the light most favorable to the non-moving party. See Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001). The Court viewed the evidence and all inferences of fact in the light most favorable to the Plaintiff in this matter and granted a Directed Verdict in favor of the Defendant because the Plaintiff failed to meet its burden of proving that the expenses sought by Plaintiff in the action are for both reasonable and necessary medical services. See Derius v. Allstate Indem. Co., 723 So.2d 271 (Fla. 4th DCA 1998). The Plaintiff did not call a single witness who had any personal knowledge regarding whether the treatment rendered by Plaintiff was reasonable, necessary or related. Neither the patient herself, Ms. Londono, nor any of Ms. Londono’s treating physicians were called to testify. All of the witnesses who were called to testify stated unequivocally that they had no personal knowledge as to whether any of the underlying treatment was reasonable, necessary or related. There was simply no evidence presented by the Plaintiff that the treatment rendered by plaintiff was reasonable, related or necessary.
In fact, the Plaintiff argued that under Florida law it was not even required to provide any evidence regarding the reasonableness, relatedness or necessity of the treatment as the only issues before the Court were the reasonableness of the mileage charge itself and whether the August 8, 2000 bill was, in fact, mailed to the Defendant.
In Derius, supra, the County Court certified two questions to the Fourth District Court of Appeal. The first question was whether “to recover medical benefits in a lawsuit under §627.736, Florida Statutes (Supp. 1994), must the plaintiff prove by the greater weight of the evidence that the expenses sought are both reasonable and for necessary medical services?” Id. at 271. The Court answered that question in the affirmative and specifically discussed §627.736(7)(a) of the PIP Statute. This particular section states that an insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the Personal Injury Protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary. The Court further stated that this particular section sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective. Id. at 273. However, the Court stated that in this procedural hurdle, it did not discern a legislative intent to alter the burden of proof in a lawsuit for PIP benefits. Id. The plaintiff in a PIP case has the burden to prove that the expenses are for reasonable and necessary medical services and nothing in the PIP Statute suggests a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the Defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary. Id. at 272.
The cost of transportation is a reimbursable medical benefit under the PIP Statute only where said transportation is incurred in connection with reasonable and necessary medical treatment. See Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986). In this particular lawsuit, the Plaintiff provided no competent evidence to the Court regarding whether the treatment was reasonable, related or necessary. Because the plaintiff failed to meet its burden of proof on this issue as required under Derius, a Directed Verdict is granted for Defendant.
WHEREFORE IT IS ORDERED AND ADJUDGED THAT the Plaintiff, TOTAL REHAB AND MEDICAL CENTERS, INC., whose address is 5409 North State Road 7, Tamarac, Florida 33319, take nothing by this action and that the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, 3600 W. Commercial Boulevard, Lauderdale Lakes, Florida 33309, shall go hence without day, for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED THAT the Court reserves jurisdiction as to attorney’s fees and costs of the Defendant as against the Plaintiff pursuant to §768.79, Fla. Stat. and Fla.R.Civ.P. 1.442.
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