11 Fla. L. Weekly Supp. 840a
Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Payment of allowable amounts of Medicare Part B Fee Schedule — Statute requiring adjustment of payment for MRI to medical consumer price index for Florida placed insurer in impossible and unreasonable position of having to guess appropriate consumer price index to apply, as there is no medical consumer price index for Florida — Summary judgment granted in favor of insurer that paid 80% of 200% of Medicare Part B Fee Schedule for MRI without adjustment to any medical consumer price index
PREMIER OPEN MRI, LLC a/a/o THOMAS CANADAY, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 2003-18740 CC, Division H. May 24, 2004. Harry Stein, Sr., Judge. Counsel: William Saron, for Plaintiff. David B. Kampf, Ramey, Ramey & Kampf, Tampa, for Defendant.
REVERSED. 12 Fla. L. Weekly Supp. 715b
ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on May 3, 2004, before the visiting judge, Judge Harry Stein on Defendant’s Motion for Summary Judgment, and the Court, having reviewed the file and being otherwise advised, this Court makes the following findings of facts and conclusions of law:
1. The undisputed facts reveal Plaintiff performed MRI services on Progressive’s insured, Thomas Canady, or on about March 4, 2003.
2. Plaintiff seeks payment for CPT Codes 72141 and 70553, in the amounts of $1,086.75 and $2,278.58, respectively. The total bill was $3,365.33.
3. F.S. 627.736(5)(b)5 provides the maximum amount that may be charged for MRI services is 200% of the Florida Medical Part B Fee Schedule. The Florida Medicare Part B Fee Schedule for a participating provider in the area in which the treatment at issue was rendered indicates the appropriate charges to be $571.50 and $1,085.04, respectively. 200% of the identified amount is $3,205.08.
4. Progressive paid Plaintiff $2,564.06, which is 80% of $3,205.08.
5. The amount paid by Progressive to Plaintiff was not adjusted to a medical consumer price index for Florida or any other region.
6. This Court finds that prior to October 1, 2003, the effective date of the amendment to the no-fault statute, there existed no criteria to determine or calculate the amount the MRI Fee Schedule may be adjusted pursuant to Florida Statute 627.736(5)(b)5 based upon a consumer price index, as there existed no such Florida consumer price index. The Bureau of Labor Statistics publishes monthly indexes for the National CPI as well as publishing regional indexes throughout the United States for various metropolitan areas. These indexes are published and revised sporadically throughout the year although are not the indexes identified in the cited statute.
7. Based on the above, this Court finds that Florida Statute 627.736(5)(b)5, placed Progressive in the impossible and unreasonable position of having to guess the appropriate consumer price index to apply to the services at issue.
8. The statute, as enacted in 2001, was neither ambiguous nor vague. The Statute was simply in error.
9. Based on the above findings and conclusions, it is:
ORDERED and ADJUDGED
1. Progressive’s Motion for Summary Judgment shall hereby be GRANTED.
2. This Court hereby enters summary judgment in favor of Progressive and against Plaintiff and Plaintiff shall go hence without a day.
3. The Court reserves jurisdiction to determine entitlement and reasonableness of attorneys’ fees and costs and to enforce this judgment, if necessary.
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