12 Fla. L. Weekly Supp. 887c
Insurance — Personal injury protection — Coverage — Medical expenses — Physician’s sworn affidavit resolved issue of whether provider’s medical personnel were licensed at time they rendered treatment to insured — Physician was legally licensed as osteopathic physician at time he rendered treatment to insured — There is no requirement that provider provide proof of licensing when submitting written notice of covered loss — Claim form — Failure to comply with countersignature requirement not basis for denying coverage — Evidence — Hearsay — Insured’s statements to provider that he sustained injuries related to automobile accident fell within exception to hearsay for statements pertinent to medical diagnosis or treatment, and provider’s testimony was sufficient to establish that insured was involved in an automobile accident
DOCTOR’S NEUROLOGICAL SERVICES OF FORT LAUDERDALE, INC. (a/a/o Glenzie Williams), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-12681 COCE 53. June 3, 2005. Robert W. Lee, Judge. Counsel: Caroline Perlegas, Fort Lauderdale, for Plaintiff. Rashad H. El-Amin, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on May 31, 2005 for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion and Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This is a PIP case. On April 14, 2005, the Plaintiff filed its Motion for Final Summary Judgment. In support of its Motion, the Plaintiff filed affidavits from two physicians: Raul A. Rodas, M.D. and Alexander Fakadej, M.D. The Court set the matter for hearing for May 31, 2005. The Defendant filed no affidavits or any other sworn proof in opposition to the Motion. Rather, the Defendant argued at the hearing that there was no sworn proof provided that the insured, Glenzie Williams, was involved in an automobile accident, and further that Dr. Fakadej was not competent to give testimony on this issue.
The undisputed facts are as follows: Glenzie Williams was involved in a motor vehicle accident on June 20, 2002. At that time, Mr. Williams was named on a policy of automobile insurance issued by Defendant, United Automobile Insurance Company. This policy provided for, inter alia, personal injury protection benefits in the amount of $10,000.00.
Mr. Williams was injured in the accident and began treating with Dr. Dean A. Spirelli, D.C. for the injuries. Dr. Spirelli referred Mr. Williams to Dr. Alexander Fakadej, M.D., for a neurological consultation. On July 17, 2002, Dr. Fakadej examined Mr. Williams and, based upon his documented findings, ordered a nerve conduction study and somatosensory study of Glenzie William’s upper extremities. On July 29, 2002, Plaintiff, DOCTOR’S NEURO provided the nerve conduction study and somatosensory study based on Dr. Fakadej’s prescription.
Doctor’s Neuro submitted a bill to Defendant but no payment was made. Doctor’s Neuro initiated this suit for United’s failure to pay for reasonable, necessary, and related medical expenses as required by Florida Statutes and the policy at issue.
The Defendant has also asserted two affirmative defenses, which the Plaintiff claims are legally insufficient: (1) failure of the physician to maintain the proper licenses; and (2) failure of the physician to comply with the Countersignature requirement. The Defendant has offered no evidence opposing the Plaintiff’s evidence that the costs charged were reasonable or necessary.
Conclusions of Law. Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists. The issue then for the Court is whether the pleadings on file and record evidence dispose of the Defendant’s two affirmative defenses, as well as establish that Glenzie Williams was involved in an automobile accident.
As for the licensing issue, Plaintiff’s medical personnel who rendered treatment to Glenzie Williams were legally licensed to render said treatment. The sworn affidavit of Dr. Raul Rodas, D.O., resolves the issue of whether the Plaintiff’s medical personnel were licensed at the time they rendered treatment. Dr. Raul Rodas performed the interpretation of the NCV on July 29, 2002. Dr. Rodas was legally licensed as an osteopathic physician at the time he rendered treatment to Glenzie Williams. Moreover, there is no requirement that the medical provider provide proof of licensing when submitting written notice of a covered loss. See Ortega v. United Automobile Ins. Co., 847 So.2d 994, 997 (Fla. 3d DCA 2003).
Next, the Court considers the countersignature issue, and rejects the Defendant’s argument as legally insupportable. See Mochnick v. State Farm Mutual Automobile Ins. Co., 7 Fla. L. Weekly Supp. 1, 2 (4th Cir. Ct. 1999).
Finally, the Court considers whether Dr. Fakadej’s testimony alone is sufficient to establish that Glenzie Williams was involved in an automobile accident on June 20, 2002. The doctor acknowledges that he obtained this information from Williams, and the Defendant argues that this is inadmissible hearsay.
Florida Statute §90.803(4) provides certain statements made for the purpose of medical treatment and diagnosis are admissible when “made [. . .] by a person seeking the diagnosis or treatment [. . .], which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the external source thereof, insofar as reasonably pertinent to diagnosis or treatment.” Whether a fact is “reasonably pertinent to diagnosis or treatment” is determined “from the physician’s perspective.” C. Ehrhardt, Florida Evidence §803.4 (2001). Although the specific details of an automobile accident may not meet this test, the fact that an injury was caused as the result of an automobile accident has been found to be appropriate. See id.
The pertinent portions of Dr. Fakadej’s affidavit provide as follows:
6. Glenzie Williams stated to me for the purposes of medical consultation, evaluation, diagnosis and/or treatment that he sustained injuries related to an automobile accident on or about June 20, 2002.
7. In my professional capacity as a medical physician, it is important for me to know the cause of the injury to ascertain a proper diagnosis and treatment plan.
8. In my professional capacity, it is important for me to know the date of the accident because I would have to know whether the symptoms were of the type that would be expected within a certain number of days of the trauma.
The Court finds that these statements fall within and meet the requirements of the hearsay exception set forth in Fla. Stat. §90.803(4).
As a result, it is accordingly
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff shall submit a proposed final judgment conforming to the terms of this Order.
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