11 Fla. L. Weekly Supp. 749a
Insurance — Personal injury protection — Coverage — Medical bills — Unreasonable, unnecessary or unrelated medical expenses — Medical provider’s motion for partial summary judgment on reasonable, necessary, and related issue is granted where affidavit of treating physician attesting that treatment was reasonable, necessary, and related was legally sufficient and independent medical exam report reached same conclusion — Opposing affidavit of president of company that specializes in medical file reviews is legally insufficient because affiant was not qualified to render opinion on reasonableness of treatment, and affidavit does not opine that charges are not reasonable, usual or customary — Affirmative defenses — Striking — Lack of specificity
ALL COUNTY MEDICAL CENTER, INC., a/a/o Caleb Torres, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-1028 COCE 50. June 7, 2004. Peter B. Skolnik, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff. Joshua Meadow, Hengber, Goldstein & Ray, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUES OF REASONABLE, RELATED AND MEDICALLY NECESSARY THE COURTS SUA SPONTE STRIKING OF DEFENDANT’S AFFIRMATIVE DEFENSES AND DEFENDANT’S ORE TENUS MOTION TO AMEND ITS SECOND AMENDED AFFIRMATIVE DEFENSES
THIS CAUSE having come before this Court on May 21, 2004 on Plaintiff’s Motion for Partial Summary Judgment on Reasonable, Related and Medically Necessary, The Court’s Striking of Defendant’s Affirmative Defenses and Defendant’s Ore Tenus Motion for Leave to File Fourth Third Amended Affirmative Defenses and the Court having reviewed the Motion and having heard argument of counsel, it is hereby
ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment on Reasonable, Related and Medically Necessary is Granted. The Court finds the affidavit of the insured’s treating physician, Dr. Janet Goldstein, to be legally sufficient. It is Dr. Goldstein’s medical opinion that the treatment rendered to the insured, Caleb Torres, was reasonable, medically necessary and directly related to the motor vehicle accident on 09/22/02. In addition, the Court took into consideration the independent medical exam report of the insured conducted by Dr. David Maklan on January 10, 2003. Dr. Maklan opined that the treatment rendered to Caleb Torres was related, reasonable and necessary as it relates to the motor vehicle accident of 9/22/02. The Court finds the affidavit of Debra Pacha, filed by Defendant in opposition to Plaintiff’s motion for partial summary judgment, to be legally insufficient. Ms. Pacha is the President of SIU Review, a company that specializes in medical file review. Ms. Pacha is not qualified to render an opinion as to the reasonableness of Plaintiff’s medical treatment. Additionally, Ms. Pacha’s affidavit does not contain any statement or opinion that Plaintiff’s charges are not reasonable, usual or customary.
The Court strike’s the second and third affirmative defenses pled in Defendant’s (Second) Amended Affirmative Defenses filed with the Court on or about April 22, 2004. The Court finds these affirmative defenses lack the specificity and particularity required by law. Defendant’s first affirmative defense was stricken at the April 5, 2004 hearing on Plaintiff’s Motion for Partial Summary Judgment. Defendant’s Ore Tenus Motion to File Third Amended Affirmative Defenses is Granted. Defendant has twenty (20) days, until June 10, 2004 to file its Third Amended Affirmative Defenses.
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