11 Fla. L. Weekly Supp. 146a
Insurance — Personal injury protection — Evidence — Hearsay — Insurer’s motion for directed verdict based on argument that medical provider failed to meet burden of proof that accident occurred is denied — History of accident given by insured to physician is admissible as exception to hearsay rule and sufficient to permit question of whether or not accident occurred to go to jury — Although court overruled insurer’s objection to admission of patient file based on objection to qualifications of records custodian, insurer did not object to admission of accident report contained within file, and accident report could be given same weight as any non-hearsay or hearsay exception evidence — Reasonable, related, and necessary treatment — Directed verdict is granted in favor of medical provider on issue of whether or not treatment was reasonable, related or necessary where insurer did not produce report from physician licensed under same chapter as treating physician dated prior to denial of payment stating that treatment rendered was not reasonable, related or necessary — Directed verdict also granted on ground that insurer failed to present expert testimony to counter testimony of medical provider’s expert that treatment was reasonable, related, and necessary
OPTIMA HEALTH & REHAB, (Ricardo Abreu), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-1093 SP26. Section 04. October 2, 2003. Richard J. Suarez, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT AND ORDER GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT AND ENTERING JUDGMENT FOR PLAINTIFF
THIS MATTER having come before the Court on September 2 through September 4, 2003, for trial by jury, and during that trial the Court having reserved ruling on Plaintiff’s Motion for Directed Verdict and Defendant’s Motion for Directed Verdict hereby makes the following rulings:
Order Denying Defendant’s Motion For Directed Verdict
This action came before the Court for a trial by jury arising out of a policy of insurance between RICARDO ABREU (“ABREU”) and UNITED AUTOMOBILE INSURANCE COMPANY (“UAIC”) which included PIP coverage. Mr. Abreu claimed to have been injured in an automobile accident and claimed to have been treated by OPTIMA HEALTH & REHAB (“OPTIMA”). OPTIMA requested payment for such treatment from UAIC pursuant to the PIP provision of Mr. Abreu’s policy of insurance. UAIC claimed the treatment was not reasonable, related or necessary and did not pay any of the bills submitted by OPTIMA.
During the trial, Plaintiff, OPTIMA, introduced into evidence the medical file of Mr. Abreu which was maintained by OPTIMA. Dr. Carlos Gonzalez, from OPTIMA, upon questioning, read from the file the history given to him by Mr. Abreu during Mr. Abreu’s initial visit to OPTIMA. The history given included the automobile accident in question and Mr. Abreu’s statement that the pain for which he sought treatment started after the accident. The doctor testified that such history was pertinent to his treatment. Additionally, the medical file presented into evidence by OPTIMA included a copy of the accident report.
Defendant’s, UAIC, Motion for Directed Verdict is based on the argument that evidence of medical history which includes statements concerning the occurrence of an accident is hearsay. UAIC argues that such evidence cannot serve as a basis for OPTIMA’s burden of proof that an accident occurred.
Statements of a person’s physical symptoms are admissible as an exception to the hearsay rule. Additionally, statements by a person describing the inception or cause of the injury, if they are pertinent to the treatment, also fall within the exception to the hearsay rule. Florida Evidence Code §90.803(4); Lemon vs. State, 767 So.2d 620 (Fla. 3d DCA 2000). Generally, evidence which is admissible under hearsay exception is sufficient to survive a motion for a directed verdict. Additionally, hearsay evidence, if admitted at trial, can be given the same weight by the jury as non-hearsay evidence. Therefore, the history of the accident given in the medical report would be sufficient for the question of whether or not an accident occurred to go to the jury for the jury’s determination.
Additionally, although the Court overruled UAIC’s objection to the admission of the patient file of OPTIMA based on UAIC’s objection as to the qualifications of the OPTIMA records custodian, once admitted, UAIC did not object to the admission of the accident report which was contained within the OPTIMA file. Therefore, the accident report was admitted without objection and could also be given the same weight as any non-hearsay or hearsay exception evidence.
For the above reasons, the Court denies UAIC’s Motion for Directed Verdict.
Order Granting Plaintiff’s Motion For Directed Verdict
A directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict for the non-moving party. Cecile Resort, Ltd. vs. Hokanson, 724 So.2d 446 (Fla. 4th DCA 1999). The issue which went to the jury at trial was whether the chiropractic treatment rendered to RICARDO ABREU by OPTIMA HEALTH & REHAB was reasonable, related to the accident in question, and necessary. At trial, Defendant UAIC argued that the treatment was not reasonable, related, or necessary and, therefore, Defendant UAIC was not responsible for the OPTIMA bills. UAIC also argued that the bills and treatment were fraudulent. The issue of fraud did not go to the jury. The only issue for consideration by the jury was whether the treatment rendered was reasonable, necessary, and related.
The only medical testimony at trial was presented by Plaintiff OPTIMA. OPTIMA put chiropractic physician, Dr. Carlos Gonzalez, of OPTIMA HEALTH & REHAB on the stand. Dr. Gonzalez testified that the treatment rendered to Mr. Abreu was reasonable, necessary, and related to the accident in question. The doctor was cross-examined by UAIC. At trial, Defendant UAIC did not produce a report from a physician licensed under the same chapter as Dr. Gonzalez issued prior to the date UAIC denied payment stating that the treatment rendered was not reasonable, related, or necessary. At trial, Defendant UAIC did not produce testimony from a physician licensed under the same chapter as Dr. Gonzalez stating that the treatment rendered was not reasonable, related, or necessary.
Plaintiff OPTIMA moved, at the close of the evidence, for a directed verdict on two grounds. As its first ground for directed verdict, OPTIMA argues that, pursuant to Fla. Stat. §627.736(7)(a), Defendant UAIC must obtain a report from a physician licensed under the same chapter as the Plaintiff’s physician stating that the treatment was not reasonable, related, or necessary prior to withholding payment of medical bills. OPTIMA argues that, as UAIC failed to obtain such a report, based on Fla. Stat. §627.736(7)(a), UAIC could not lawfully withhold payment. As such, the issue of whether or not the treatment was related, necessary or reasonable could not go to the jury and OPTIMA would be entitled to a directed verdict. OPTIMA argues that the case of United Automobile Insurance Co. vs. Viles, 726 So.2d 320 (Fla. 3d DCA 1998) stands for this proposition and controls.
Alternatively, OPTIMA argues it is entitled to a directed verdict on the same issue due to the fact that UAIC failed to produce testimony at trial from a chiropractic physician stating that the treatment rendered to ABREU was not reasonable, related or necessary thereby challenging the testimony of Plaintiff’s chiropractic physician who stated the treatment was reasonable, related and necessary. OPTIMA argues that as such testimony was not introduced, the issue of whether the treatment was reasonable, related, or necessary could not go to the jury and OPTIMA would be entitled to a directed verdict. OPTIMA argues that the case of Kimmins Recycling Corp. vs. Rogers, 704 So.2d 600 (Fla. 4th DCA 1997) stands for this proposition and controls.
Defendant UAIC argues that the Defendant does not have to conduct a peer report or present testimony at trial from a physician licensed under the same chapter as Plaintiff’s doctor (Dr. Gonzalez). URIC argues that Fla. Stat. §627.736(4)(b) controls and only requires the Defendant to present at trial “reasonable proof” to establish that the insurer is not responsible for payment. UAIC argues that the case of United Automobile Insurance Company vs. Marisol Rodriguez, 808 So.2d 82 (Fla. 2001) stands for this proposition and controls.
Conclusions of Law
Fla. Stat. §627.736(7)(a) and not Fla. Stat. §627.736(4)(b) is the statute that applies to the procedural hurdles an insurer must overcome when an insurer challenges the reasonableness, relatedness, or necessity of the services or treatment rendered and withdraws payment of bills for such rendered treatment. (See concurring opinion of Justice Pariente at p.89 and footnote 14 at p.90, United Automobile Insurance Company vs. Rodriguez, 808 So.2d 82 (Fla. 2001). §627.736(7)(a) Fla. Stat. (2001) states in pertinent part:
. . .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 valid report by a physician under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by a physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records reviewed and that has not been modified by anyone other than a physician.
Therefore, pursuant to Fla. Stat. §627.736(7)(a), whenever an insurer chooses to question whether or not the treatment was reasonable, related, or necessary, it must first follow certain procedures before it may legally withhold payment to the provider for such treatment. If the insurer cannot obtain the consent of the injured insured not to pay the bills, it must obtain a valid report by a physician licensed under the same chapter as the treating physician. After either examining the insured or reviewing the treatment records, that physician must state that the treatment was not reasonable, related, or necessary. If the insurer does not follow these steps, the insurer may not withhold payment.
In the instant trial, UAIC failed to produce a report from a chiropractic physician, dated prior to the date UAIC denied payment of the OPTIMA bills, stating that the chiropractic physician had reviewed the treatment records of Mr. Abreu and/or had examined Mr. Abreu and had determined that the treatment was not reasonable, related, or necessary. Therefore, UAIC failed to show proof of compliance with the provisions of Fla. Stat. 627.736(7)(a) and, as such, could not have lawfully withheld such payment.
In the case of United Automobile Insurance Company vs. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), as in the instant case, the issues were fraud and whether the treatment was reasonable, related, or necessary. At that trial, as in the instant trial, the Plaintiff presented testimony from a chiropractic physician stating that the treatment was reasonable, related and necessary. At that trial, as in the instant trial, the Defendant insurance company failed to produce a report signed by a chiropractic physician dated prior to denial of payment stating that the treatment was not reasonable, related, or necessary. Notwithstanding a jury verdict for the Defendant, the trial court granted Plaintiff’s Motion for a Directed Verdict based on Fla. Stat. §627.736(7)(a). The trial court held that UNITED AUTOMOBILE INSURANCE COMPANY was barred from raising the defense that the treatment was not reasonable and necessary because it failed to obtain a physician’s report prior to denying payment as required by the statute. The trial court then certified the following question as one of great importance:
In any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, is it a condition precedent pursuant to Section 627.736(7)(a), Florida Statutes, that an insurer obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related, or necessary in order for the insurance carrier to defend a suit for reduction, withdrawal, or denial of further payments on the grounds of reasonableness, necessity or relationship?
The Third District Court of Appeal answered the certified question in the affirmative. The Court held that Fla. Stat. §627.736(7)(a) applied and concluded that the Defendant insurer was required to obtain a physician’s report stating that the treatment was not reasonable, related, or necessary prior to refusing to pay the additional medical bills. The Court went on to state that if the insurer did not comply with this procedural requirement, any termination of benefits would be ineffective. As such, the Third District Court of Appeal held that the issue should not have gone to the jury and upheld the trial court’s directed verdict.
In the instant action, UAIC argues that Viles has been implicitly overruled by United Automobile Insurance Company vs. Rodriguez, 808 So.2d 82 (Fla. 2001). In fact, Viles has not been implicitly or explicitly overruled by that case. As discussed below in more detail, Marisol Rodriguez vs. United Automobile Insurance Company concerns Fla. Stat. §627.736(4)(b) and the requirement that the insurer have “reasonable proof” it was not responsible for payments before an insurer may argue it does not have to pay interest on an overdue payment. United Automobile Insurance Co. vs. Rodriguez did not address Fla. Stat. §627.736(7)(a) which was the statute at issue in Viles and is at issue in this trial. The concurring opinion of Justice Pariente, in United Automobile Insurance Co. vs. Rodriguez, points to the difference between the two above statutes referred to by this Court, and also points to the fact that the two statutes operate individually depending on the issue presented at trial.
UAIC also argues that Fla. Stat. §627.736(7)(a) applies only when an IME has been conducted. This appears to be incorrect as the statute specifically states that such a report may be based upon either an examination of the injured person or upon a review by the doctor of the injured person’s treating records.
Fla. Stat. §627.736(4)(b) relied upon by UAIC does not apply as it does not address what steps an insurer must follow before it may withhold payment. §627.736(4)(b) concerns strictly what steps an insurer must follow in order not to be responsible for interest on overdue payments for treatment rendered. §627.736(4)(b) Fla.Stat. (2001) (emphasis added) states in pertinent part:
(4)(b) BENEFITS; WHEN DUE. —
Benefits due from an insurer under ss.627.730-627.405 shall be primary, except the benefits received under any workers compensation law shall be credited against the benefits provided by subsection (1) and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses, and loss incurred which are covered by the policy issued under ss.627.730-627.405. . . .
(b) personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished with written proof of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment . . . .
(c) all overdue payments shall bear simple interest at the rate established by the comptroller under s.5503. . . .
Pursuant to §627.736(4)(b) the insurer may avoid the interest penalty on payments found to be overdue only when an insurer has reasonable proof to establish that the insurer is not responsible for the payment. If the insurer has “reasonable proof”, it may not have to pay the interest on overdue payments in the event it is found the treatment was reasonable, necessary, and related and should have been paid by the insurer.
The case of United Automobile Insurance Company vs. Rodriguez, 808 So.2d 82 (Fla. 2001), relied upon by UAIC, concerned this specific statute. That case states that, as to Fla. Stat. §627.736(4)(b), the insurer need only bring forward “reasonable proof” to establish that the insurer was not responsible for payment. By doing such, the insurer may be able to avoid the late payment penalty should it be found that such payment was required on the part of the insurer. The case further states that the insurer need not produce a medical report. All that is required for such proof is “reasonable proof”. Once again, Fla. Stat. §627.736(4)(b) concerns only what proof the insurer must have to avoid the penalty for late payment. It does not address, nor does it concern, the issue in this action which is what procedural hurdles, if any, the insurer must overcome in order to withdraw payment of bills should the insurer feel the treatment was not reasonable, related, or necessary.
For the above reasons, this Court grants OPTIMA’s Motion for Directed Verdict on the issue of whether or not the treatment was reasonable, related, or necessary.
In the alternative, OPTIMA argues that it is entitled to a directed verdict on the same issue of whether the treatment was reasonable, related, or necessary on the grounds that UAIC failed to present any medical testimony at trial to counter the testimony of Dr. Gonzalez who stated the treatment was reasonable, related and necessary. OPTIMA argues that, as UAIC failed to present such counter testimony, the issue could not go to the jury.
At trial, the burden of proof whether the treatment was reasonable, related, or necessary falls upon the Plaintiff. Derius vs. Allstate Indemnity Company, 723 So.2d 271 (Fla. 4th DCA 1998). Once the Plaintiff meets this burden, the burden then falls to the Defendant to rebut such testimony.1 A jury is not free to reject uncontroverted medical testimony indicating a permanent injury. See, Vega vs. Travelers Indemnity Company, 527 So.2d 73 (Fla. 3d DCA 1988). When the Plaintiff presents expert testimony to support a claim for permanent injury, the defense, in order to survive a Motion for Directed Verdict, must come forward with countervailing evidence or severely impeach the proponent’s expert. Williamson v. Superior Insurance Company, 746 So.2d 483, 485-486 (Fla. 2d DCA 1999); Holmes v. State Farm Mutual Automobile Insurance Company, 624 So.2d 824 (Fla. 2d DCA 1993). Therefore, once the Plaintiff in a PIP action has introduced expert testimony that the treatment was reasonable, related and necessary, the burden falls to the Defendant who must either substantially discredit the Plaintiff’s expert or present expert testimony on its own. UAIC failed to do either in the above-captioned trial. The jury could not, therefore, find for UAIC and against OPTIMA. As such, on this ground, OPTIMA is, once again, entitled to a directed verdict on the issue of whether or not the treatment was reasonable, related, or necessary.
Conclusion
OPTIMA’s Motion for Directed Verdict is granted on two separate grounds. First, as UAIC failed to produce a report as required by Fla. Stat. §627.736(7)(a), the issue of whether or not the treatment was reasonable, related, or necessary could not have legally gone to the jury and a directed verdict for OPTIMA is granted. Second, as UAIC failed to present expert testimony to counter the testimony of OPTIMA’s expert, the same issue of whether or not the treatment was reasonable, related, or necessary could not have gone to the jury and a directed verdict for OPTIMA is granted.
Therefore, notwithstanding the jury’s verdict, this Court enters a judgment for the Plaintiff against the Defendant in the amount of $1,108.00 which is the amount proven of the medical expenses after application of the deductible and 80%. The Court reserves jurisdiction as to the award of attorney’s fees and reasonable costs.
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1This Court could not find any Florida cases directly on point. Therefore, other cases were looked to for guidance.
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