11 Fla. L. Weekly Supp. 202c
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary medical expenses — Error to grant directed verdict for medical bills incurred up to date insurer provided notification of termination of benefits based on results of independent medical examination where treating physician and IME physician gave conflicting evidence as to whether insured’s gallbladder surgery contributed to pain insured claimed was result of accident, insured admitted she was given treatment not prescribed by treating physician, and there was conflicting testimony as to billing discrepancies
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. BIBIANA PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-151AP. L.C. Case No. 01-06039CA20. January 13, 2004. On appeal from the County Court, Miami-Dade County, Wendell M. Graham, J. Counsel: Craig J. Trocino, Craig J. Trocino, P.A., for Appellant. David L. Deehl, Deehl & Carlson, P.A., for Appellee.
(Before SCOTT J. SILVERMAN, ROSA RODRIGUEZ, IVAN FERNANDEZ, JJ.)
(SCOTT J. SILVERMAN, J.) Appellee, Bibiana Perez was involved in a car accident on April 24, 2000 and sustained injuries in the form of headaches, neck/shoulder pain, and back pain. On May 1, 2000, Appellee sought medical treatment at Elite Clinic, and was treated by Dr. Marian Lara. Dr. Lara prescribed treatment for Appellee, which was administered by Elite Rehabilitation Center (“Elite”). Appellant, United Auto Insurance Co., suspected that Elite billed them for services that were not rendered and for dates Appellee did not receive treatment. As a result, they decided not to pay the bills submitted for those dates. Thus, on September 22, 2000, Appellee sued Appellant for failure to pay necessary medical, rehabilitative, and remedial treatment, within thirty days (30) as required by §627.736(4)(b), Fla. Stat. (1997). A jury trial was held to determine whether the Appellee’s medical bills were reasonable, related, and necessary for her recovery.
At the trial, Appellee’s witness, Dr. Marian Lara, testified that upon her initial examination of Appellee, she had a cervical sprain, and/or suffered from a muscle spasm in her neck area. In addition, Dr. Lara testified that the X-rays she took of the Appellee were normal. However, Dr. Lara prescribed pain medication, Darvocet PRN, and four weeks of hot packs, ultrasound, massage, and electrical stimulation, which was administered by Elite. On August 10, 2000, Dr. Lara discharged Appellee since she felt she was at maximum improvement.
Appellant’s witness, an independent medical examiner, Dr. Sulim Krimsthein, examined the Appellee on June 13, 2000. After his exam, Dr. Krimshtein did not see acute problems and determined that Appellee did not require further treatment. Dr. Krimshtein testified that Appellee’s record evidenced thoracic pain and people who have had abdominal surgery frequently have abdominal pain and thoracic pain. Based on Dr. Krimshtein’s assessment, Appellant notified Appellee that she was no longer entitled to benefits as of June 27, 2000. Despite notification of termination of benefits, Appellee’s treatment continued until August 10, 2000.
The clinic which administered Appellee’s treatment, Elite, admitted they incorrectly billed Appellant for traction instead of therapeutic exercises during the time period of May 2nd to July 17th. In addition, Elite claimed they made several attempts to call Appellant about the error and resubmitted corrected bills. However, Appellant claimed they never received the corrected bills. After Appellant rested, Appellee made a motion for a directed verdict for all medical bills incurred before June 27, 2000, because she claimed there was no evidence or medical report to controvert her reasonable, related, and necessary treatment up until June 27, 2000. Appellant opposed the motion for directed verdict based on the fact that the Appellee’s treating physician prescribed treatment, which Appellee did not receive. Despite Appellant’s objection, the lower court granted Appellee’s directed verdict for all medical bills incurred by Appellee up until June 27, 2000. The issue of whether the Appellant was responsible for paying the bills Appellee incurred after June 27, 2000 went to the jury. The jury returned a verdict for Appellee for $4,614.00 for bills incurred after June 27, 2000. Thus, Appellant appealed the lower court’s directed verdict.
Directed verdicts are reviewed de novo. Plotch v. Gregory, 463 So. 2d 432 (Fla. 4th DCA 1985). This Court must determine (1) whether there is a disputed issue of fact, and (2) whether the trial court applied the correct rule of law. See Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 130-1 (2003 ed., West 2002). Appellant argues that the directed verdict should be reversed since there were enough inferences by which a jury could decide whether the bills Appellee incurred before June 27, 2000 were reasonable, related, and necessary and because the lower court relied on outdated law. We agree with Appellant and reverse.
The first prong of directed verdict review requires this Court to consider whether there were disputed issues of fact. In viewing the evidence in a light most favorable to the nonmoving party [Appellant], it appears that the trier of fact could have reasonably differed as to established material facts. First, both doctors gave conflicting evidence as to whether Appellee’s gallbladder surgery contributed to the pains she claims were the result of her car accident. Second, Appellee admitted she was given treatment for therapeutic exercises, not traction, none of which was prescribed by Dr. Lara, Appellee’s treating physician. Third, both representatives gave conflicting testimony with respect to billing discrepancies.
There exist too many disputed facts or inferences from which a jury could infer reasonable, necessary, and relatedness of the medical bills. This court understands how the lower court came to its conclusion below, but nonetheless the decision must be reversed since the first prong of the directed verdict standard of review has been satisfied.1 Therefore, we need not address whether the lower court applied the correct rule of law, even though a review of the record clearly indicates that the incorrect law was applied.
Whenever an insured files an action for payment of PIP benefits and prevails, the insured is entitled to attorney’s fees under §627.428(1), Fla. Stat. (1995). Therefore, upon remand, Appellee is entitled to attorney fees, provided she prevails on the policy. Id.
FOR THESE REASONS, the directed verdict in favor of the Appellee is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (ROSA RODRIGUEZ, IVAN FERNANDEZ, JJ. concur.)
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1Note, if Appellee prevails upon remand, the lower Court should be mindful that “all overdue payments bear simple interest at the rate of ten percent per year.” See §627.736(4)(c), Fla. Stat. (1997). This action commenced in the year 2000.
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