11 Fla. L. Weekly Supp. 408b
Insurance — Personal injury protection — Evidence — No merit to claim that trial court erred in admitting articles from periodical on CPT coding despite fact that they were unauthenticated since articles are self-authenticating — No abuse of discretion in admitting articles that insurer failed to disclose at pretrial conference where there is no showing of prejudice inasmuch as medical provider proffered no argument that it might have countered evidence had it been disclosed, and no showing that alleged error was harmful since admission of articles served only to clarify information already in CPT manual for jury — No error in refusing to admit evidence of payment on subject CPT code in other cases since conduct by non-party insurer is not relevant or admissible
DANIEL J. MADOCK (a/a/o LYNN KUS), Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-6538. Division X. L.C. Case No. 02-4680-SC. March 3, 2004. Herbert J. Baumann, Jr., Judge. Review of a final order of the County Ct. Hillsborough County. Counsel: Timothy A. Patrick, P.A., Tampa, for Appellant. Valeria Hendricks, Tampa, for Appellee.
Appellant appeals a final judgment against it, claiming that the trial court erred with respect to the admission and exclusion of certain evidence. Based upon our review, we affirm the decision of the trial court.
The underlying matter in this case was a suit for breach of contract and unpaid insurance benefits and statutory interest under the PIP statute. As a result of injuries sustained in covered incident, Ms. Kus sought and received medical treatment with Dr. Daniel J. Madock. She executed an assignment of benefits to Dr. Madock for her medical treatment. A dispute arose over a bill Appellant provider submitted under CPT code 76140, which Appellee refused to pay because the procedure was included in another procedure Appellant submitted under CPT code 98940. Appellant sued pursuant to Section 627.736, Florida Statutes. At a pretrial conference the trial court ordered the parties to mark their exhibits for identification and prepare a chronological exhibit list for use of the Clerk and Court at trial. Appellee disclosed that it intended to admit, among other things, a copy of the CPT Manual.
At trial, the Appellee attempted to introduce copies of three articles from a publication entitled the “CPT Assistant” for use as substantive evidence that CPT code 76140 was not compensable because the procedure was included in the billing for CPT code 98940. The basis for the documentary evidence and the argument was testimonial evidence which indicated that on the same day Appellant charged for the 76140 CPT code, he also charged for an initial office visit with the insured. He wrote a four-page report on this office visit, which included, in the assessment section, his one-sentence review of the cervical x-rays taken at the hospital. He did not write a separate report for his evaluation of those x-rays. His one-sentence report is why he billed the 76140 code. Appellee sought to show through admission of the “CPT Assistant,” that the evaluation and interpretation of a diagnostic study is to be included in an office visit charge rather than being billed separately. Appellant objected to the introduction of these documents, on the grounds that the documents were not authenticated and not properly disclosed on the exhibit list. The trial court heard arguments but allowed the “CPT Assistant” articles to be introduced into evidence.
Appellant also challenges the trial court’s refusal to allow the admission of evidence that he had been previously paid by other insurers pursuant to the 76140 billing code.
A jury returned a verdict in favor of the Appellee and Final Judgment was rendered on June 2, 2003. After a motion for rehearing which the trial court denied, this timely appeal followed.
Appellant contends that the trial court abused its discretion when it admitted “The CPT Assistant” into evidence despite the fact that the articles were unauthenticated and were not disclosed at the pretrial conference. He further argues that the trial court again abused its discretion when it precluded the Appellant from introducing evidence that other insurers have customarily paid his medical charges for CPT code 76140.
The standard of review as to trial court decisions on evidentiary matters is abuse of discretion. Grau v. Branham, 761 So.2d 375 (Fla. 4th DCA 2000). Regarding the alleged failure to authenticate the articles found in the “The CPT Assistant,” this issue is without merit. Such articles need not be authenticated because they are self-authenticating. Cirillo v. Davis, 732 So.2d 387, 388 (Fla. 4th DCA 1999), interpreting Section 90.902, Florida Statutes.
With respect to Appellant’s argument that Appellee’s failure to clearly disclose its intent to use the periodical articles from the “CPT Assistant,” it appears that the insurer’s attorney may have been remiss in failing to disclose the articles. However, several considerations enter into our decision to affirm the decision of the trial court. The first is that the standard of review is abuse of discretion, a very heavy burden for Appellant to overcome. Case law Appellant cites states only that a trial court may exclude evidence for failure to disclose evidence, not that it must. See Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). To determine whether the trial court abused its discretion we examine the decision to admit the evidence prejudices the opposing party. Tomlinson-McKenzie v. Prince, 718 So.2d 394 (Fla. 4th DCA 1998). Prejudice inures if there was action the other party might have taken to alleviate the effect of the undisclosed evidence had it been timely disclosed. Id. Appellant proffered no argument that he might have countered the evidence had it been disclosed. Discretion is so broad as to evidentiary matters that had the trial court decided to exclude the evidence, it may well have also been correct under the circumstances of this case. Mistri v. Joseph Rutigliano & Sons, 827 So.2d 391 (Fla. 5th DCA 2002).
We also examine whether the record reflects that the alleged error was harmful. In essence, the question is whether the judge’s decision affected the justice of the case as a whole. Forester v. Jewell, 610 So.2d 1369 (Fla. 1st DCA 1992). It is insufficient to allege mere error; the error must be harmful. Id. In the instant case, the admission of the periodicals served only to clarify the information that was already in the CPT Manual for the jury. Appellant provided no basis for this court to find that prejudice or harmful error resulted from the judge’s decision on the periodical evidence. He did not show that the decision was arbitrary or unreasonable. Mistri at 392. In short, Appellant did not overcome the heavy burden required to reverse the trial court’s decision.
With respect to the trial court’s decision on its refusal to allow the admission of evidence of payment in other cases on the 76140 code, the trial court made the correct decision. Conduct by a non-party insurer is not relevant nor admissible. Such evidence does not prove that the insurer in this case should or must pay in this case. It proved only payment, not the correctness of another insurer’s decision to pay. By definition, it is not relevant. Section 90.401, Florida Evidence Code.
It is therefore ORDERED that the decision of the trial court is AFFIRMED. Appellant’s Motion for Appellate Attorney’s Fees and Costs is DENIED.
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