12 Fla. L. Weekly Supp. 1097b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review obtained after insurer decided not to pay claim and to withdraw benefits was not timely obtained — No merit to argument that requirement to obtain medical report before withdrawal of benefits applies only when insurer had decided to pay claim and later changed mind
A-1 MOBILE MRI (a/a/o Ramona King), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13767 COCE 53. September 22, 2005. Robert W. Lee, Judge. Counsel: Caroline Perlegas, Fort Lauderdale, for Plaintiff. John C. Wien, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 21, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, rules as follows:
At the hearing, the parties acknowledged that the only remaining issue is whether the medical treatment rendered to Ramona King was reasonable, necessary, and related to the accident occurring on March 18, 2002. In support of Plaintiff’s position that the treatment was reasonable, related, and necessary, the Plaintiff provided the following record:
First, in the affidavit attached as Exhibit A to the Motion, Angelo Soto stated that the patient received an MRI from the Plaintiff, and that the Plaintiff received from her an assignment of benefits which was attached to the Exhibit. He also stated that the invoice was submitted to Defendant but has not been paid.
Second, in the Affidavit of Dr. Steven Brown attached as Exhibit B to the Motion, Dr. Brown stated under oath sufficient factual grounds to establish prima facie that the MRI was reasonable, related, and necessary. Here, Plaintiff has submitted competent evidence of the services performed, and amounts billed, thereby satisfying its burden of a prima facie showing of reasonableness, relatedness and necessity.
In response, United Auto served its Affidavit of Peter J. Millheiser, M.D. dated September 16, 2005, which authenticated a records review dated March 26, 2004. In it, Dr. Millheiser stated that he was of the “opinion based upon a reasonable degree of medical certainty that the spinal MRI testing was unreasonable, unnecessary, and unrelated [to] this accident.” His affidavit establishes that he did not, however, personally examine Ramona King. The Court holds that the peer review report was not timely obtained because it was obtained after United Auto had already decided not to pay the claim.
Under Florida law, PIP benefits are “overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” Fla. Stat. §627.736(4)(b). This 30-day provides the insurer a safe harbor to avoid payment of any penalties, interest and attorney’s fees. However, failure to pay or obtain reasonable proof within 30 days does not operate as a waiver of the insurer’s right to thereafter contest the bills as being unreasonable, not related to the accident, or not medically necessary. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). The problem for the insurer is not the failure to authenticate the claim within 30 days, but rather the failure to obtain a medical report prior to the withdrawal of PIP benefits in this case. Fla. Stat. §627.736(7). So, while the insurer does not lose its right to contest whether a bill is reasonable, related or medically necessary if it fails to obtain “reasonable proof” within 30 days, it still must obtain a medical report before it can thereafter withdraw benefits. See United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1988). See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente J. concurring); Optima Health v. Rehab v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty. Ct. 2003). The undisputed facts establish that the Defendant has declined to pay the claim by its letter to the Plaintiff dated November 4, 2002. The Defendant argues, however, that the “withdrawal” of benefits requires that the insurer had decided to pay the claim, then later changed its mind. The Court disagrees. Therefore, it is unnecessary for the Court to consider the Plaintiff’s argument that the peer review report is also defective due to failure of the physician to conduct a physical examination of the patient. See Fla. Stat. §627.736(7).
As a result, the Court holds that when the insurer denied the claim, it “withdrew the payment” payable under the P.I.P. policy. Because it did this prior to obtaining the requisite medical report, the Plaintiff is entitled to summary judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Plaintiff shall submit a proposed Final Summary Judgment which conforms to the terms of this Order.
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