12 Fla. L. Weekly Supp. 925d
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Evidence — Hearsay — Medical diagnosis or treatment — Insured’s medical record and treating physician’s testimony that he relied on accident information to diagnose and treat insured is admissible to establish existence of accident
DIAGNOSTIC SERVICES OF SOUTH FLORIDA, a/a/o NORMA CURBELO, a/a/o ORLANDO CAMPO, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 04-36 AP and 04-37 AP. L.T. Case Nos. 01-16382 SP-05 and 01-20025 SP-05. July 26, 2005. On appeal from the County Court for Miami-Dade County. Caryn C. Schwartz, Judge. Counsel: Neil M. Gonzalez, for Appellant. David Millheiser, Office of General Counsel, United Automobile Insurance Company, for Appellee.
(Before MARIA ESPINOSA DENNIS, MINDY S. GLAZER, BERTILA SOTO, JJ.)
(GLAZER, J.) Appellant, Diagnostic Services of South Florida assignee for Norma Curbelo, and Orlando Campo, brings this consolidated appeal to reverse the trial court’s directed verdicts1 and final judgments in personal injury protection (“PIP”) actions. The court has jurisdiction pursuant to Fla. R. App. P. 9.030(c)(1)(A).
This appeal arises from two factually similar cases with the contested issue of whether the assignor’s medical record and testimony of the treating physician are substantive evidence admissible to prove the existence of an accident. The accident witnesses and the police officer who wrote the incident report failed to appear at the jury trial. At this point, the trial court became concerned that Appellant was unable to meet the prima facie burden of proving the existence of the accident. Appellant contended that the burden would be met under hearsay exception, § 90.803(4) Fla. Stat., through the assignor’s medical record and testimony of the treating physician. The trial court disagreed with the Appellant’s argument. In the interest of judicial economy and for the purpose of having this issue resolved on appeal, the parties stipulated to waiving their right to jury trial. They proceeded with a non-jury trial, where the Appellant proffered the medical records and testimony of the physician who diagnosed and treated assignor based on assignor’s injuries arising from an automobile accident. At the conclusion of the trial, the court granted Appellee’s motion for involuntary dismissal and entered final judgment.
The patient’s medical record, and the physician’s testimony that he relied on automobile accident information to diagnose and treat the patient is admissible under § 90.803(4) Fla. Stat., to establish that the patient was in an automobile accident. United Automobile v. Quiropractic & Therapy Center, 12 Fla. L. Weekly Supp. 532a, (Fla. 11th Cir. Ct., January 4, 2005). Statements made regarding the inception or general character of the cause or external source of an injury to a medical provider for the purpose of medical diagnosis and treatment is admissible hearsay, and sufficient evidence to survive a motion for involuntary dismissal. See, § 90.803(4) Fla. Stat. (2003); Martinez v. United Automobile, 12 Fla. L. Weekly Supp. 311b, (Fla. 11th Cir., January 4, 2005). Appellant’s proffer that the physician relied upon assignor informing him of the accident to diagnose and treat assignor is admissible hearsay under § 90.803(4) Fla. Stat., establishing the existence of the accident, and capable of surviving a motion for involuntary dismissal.
Accordingly, the involuntary dismissal is reversed and the final judgment vacated. We remand to the lower court for a new trial. Attorney’s fees to be determined by the trial court. Matos v. United Automobile Insurance Company, 12Fla. L. Weekly Supp. 439a (Fla. 11th Cir., February 8, 2005).
__________________
1The court will treat the directed verdicts as involuntary dismissals pursuant to Fla. R. Civ. Pro. 1.420(b). See, Tillman v. Baskin, 242 So.2d 748 (Fla. 4th DCA 1971), rev’d, 260 So.2d 509 (Fla. 1972).
* * *
