12 Fla. L. Weekly Supp. 372a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 970a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Affidavit of peer review physician and attached peer review report is not competent evidence that would create genuine issue of material fact where affidavit is conclusory and does not state physician’s opinion or basis of opinion with regard to propriety of treatment, but merely authenticates peer review report, which is inadmissible as document created for sole purpose of litigation — Peer review report is not valid report allowing insurer to withhold benefits on grounds of medical report where report was not obtained prior to withholding benefits and is not factually supported by physical examination — Insurer’s failure to pay benefits within thirty days does not bar insurer from posing other defenses, such as late notice — Summary judgment granted in favor of provider with respect to whether treatment was reasonable, related and necessary

EDUARDO J. GARRIDO, D.C., P.A., as assignee of Blanca Milian, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 03-4907 SP 26 (4). January 26, 2005. Philip Cook, Senior Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Oliver Wragg, Office of General Counsel, for Defendant.

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came to be heard on this 21st day of January 2005 on Plaintiff’s motion for summary judgment and the Court upon hearing the arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and law:

FINDINGS OF FACT

1. This is a breach of contract action for personal injury protection benefits.

2. At all times material, Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereafter “UNITED”) and Blanca Milian entered into a contract of insurance for personal injury protection benefits.

3. Blanca Milian was involved in a motor vehicle accident on August 15th, 2002. As a result of said accident, Ms. Milian suffered injuries that necessitated health care treatment. Following said accident, Ms. Milian sought chiropractic treatment with Plaintiff, DR. EDUARDO J. GARRIDO, D.C., P.A.

4. While under the supervision of Dr. Garrido D.C., Ms. Milian received a number of treatment services; which included ultrasound; chiropractic manipulation; hot/cold packs; traction.

5. Plaintiff submitted to UNITED AUTO the sum of $5,690.00 in chiropractic expenses for said services. UNITED AUTO did not pay said expenses in accordance with said contract of insurance.

6. During the time Ms. Milian was under the care of Dr. Garrido D.C., UNITED did not request that Ms. Milian be examined by a physician pursuant to Fla. Stat. § 627.736(7).

7. Plaintiff then filed the instant breach of contract suit against UNITED for failure to pay said expenses in accordance with the policy of insurance.

8. Prior to the lawsuit, UNITED did not advise Ms. Milian or the Plaintiff that her benefits were being denied or withheld on the basis that a medical doctor has opined that treatment is not necessary, reasonable nor related.

9. In UNITED’s amended affirmative defenses, UNITED alleges that the insured did not provide notice of the loss as soon as practicable.¹

10. Plaintiff now moves for summary judgment on whether the subject chiropractic are reasonable, necessary and related and Defendant’s affirmative defense that it lacks indication of Plaintiff’s licensure status.² In support of Plaintiff’s motion for summary judgment, Plaintiff filed the affidavit of Dr. Eduardo J. Garrido D.C., who opines that the subject services are reasonable, necessary and related.

11. In response to Plaintiff’s motion for summary judgment, Defendant served an affidavit and a peer review from Dr. Neil Fleischer D.C., a chiropractic physician. The affidavit of Dr. Fleischer D.C., simply authenticates his report of his review of the insured’s medical records. The report was generated on December 11th, 2003; approximately one year after the subject bills were submitted to UNITED for payment.

CONCLUSIONS OF LAW

It is well settled that on a motion for summary judgment, the moving party bears the burden of proving the nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The Court finds that Plaintiff has met this burden based on the affidavit of the treating physician. Accordingly, the burden has shifted to UNITED to present competent evidence demonstrating a genuine issue of material fact. See Holl, 191 So.2d at 43 (“The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”) (emphasis added). In response to Plaintiff’s motion, Defendant submits the affidavit and peer review of Dr. Fleischer D.C.

Plaintiff argues and the Court agrees that the affidavit of Dr. Fleischer D.C., and the attached peer review is not competent evidence that would otherwise create a genuine issue of material fact. The affidavit is conclusory where it does not“set forth such facts as would be admissible in evidence . . . .” Fla. R. Civ. P. 1.510(c) (emphasis added). It is well settled that a conclusory affidavit in support of or in opposition to a motion for summary judgment is insufficient. See Gruber v. Mount Sinai Hospital, 487 So.2d 76 (Fla. 3rd DCA 1986) (Summary judgment in medical malpractice reversed where supporting affidavits from expert witnesses were extremely abbreviated and conclusory); North Broward Hospital District v. Royster, 544 So.2d 1131 (Fla. 4th DCA 1989) (Summary judgment against hospital affirmed in medical malpractice action where affidavits served in opposition to plaintiff’s motion for summary judgment were conclusory); Fabric v. Surgeons Professional Liability Self Insurance Trust Fund, 565 So.2d 750 (Fla. 3rd DCA 1990). The affidavit of Dr. Fleischer D.C., does not state his opinion or the basis of his opinion with regard to the propriety of the treatment services. The affidavit only authenticates his report; which is a document created for the sole purpose of litigation and is inadmissible under the evidence code for that reason.³ Authentication does not equate to admissibility. See C. Ehrhardt, Florida Evidence § 90.901 at 819 (1999) (“Because records or writings have been authenticated does not mean that a foundation for admissibility under an exception to the hearsay rule is present.”)When a record or writing that is hearsay is authenticated, the proponent must lay a foundation for admissibility under an exception to the hearsay rule. See Id. at 819 (“For example, if authenticated records are offered under the business record example, the record custodian or other witness with knowledge must testify to the foundation required by section 90.803(6).”)The Fifth District Court in Dollar v. State, 685 So.2d 901, 903 (Fla. 5th DCA 1996) held that authentication of a record does not insulate the record from other rules of evidence that govern admissibility:

“The state’s argument that the contents of the newspaper article are admissible because a news paper is self authenticating misses the mark. Authentication refers to the genuineness vel non of a document. (citation omitted). No one here seriously disputes the fact that the article in question was published in a newspaper known as Florida Today. Authentication, however, does not mean that the article is insulated from other rules of evidence governing admissibility.”

The affidavit of Dr. Fleischer D.C., fails to state a proper foundation for admissibility of his report under an exception to the hearsay rule. See e.g. Crosby v. Paxson Electric Co., 534 So.2d 787 (Fla. 1st DCA 1989) (“[A]n affidavit in support of summary judgment that does no more than indicate the documents that appear in the files and records of a business is not sufficient to meet the business records exception to the hearsay rule.”); Thomasson v. The Money Store/Florida Inc., 464 So.2d 1309 (Fla. 4th DCA 1985) (“[T]he affidavit in support of summary judgment demonstrates no more than that the documents attached thereto appear in the files and records of [the moving party]. This is not a sufficient showing to meet the requirements of the business record hearsay exception . . . . Therefore, the affidavit does not set forth such facts as would be admissible in evidence . . . .”) (alteration in original); United Auto. Ins. Co. v. Juan Lopez, 11 Fla. L. Weekly Supp. 297b (Summary judgment reversed where affidavits in support of insured’s motion for summary judgment did not lay the proper foundation for admissibility of the insured’s account ledger).

Assuming the affidavit of Dr. Fleischer D.C. lays a foundation for admissibility of the peer review, there is no exception under the hearsay rule for its admissibility. The report lacks trustworthiness where it was prepared for the sole purpose of litigation. The Second District Court in McElroy v. Perry, 753 So.2d 121, 126-127 (Fla. 2nd DCA 2000) held that a report obtained by the insurer under § 627.736(7) is inadmissible hearsay:

“Dr. Phillips’ report must be examined separately because it was not prepared solely for the purpose of litigation. Nevertheless, we conclude that it too falls within the category of those records in which “the sources of information or other circumstances show lack of trustworthiness.” Dr. Phillips was hired by Perry’s insurance carrier to examine her for the purposes of assisting the carrier in its determination of whether the treatment Perry was obtaining was “reasonable, related or necessary” pursuant to section 627.736(7). Thus, the carrier’s motivation for requesting the examination was financial one that placed the physician in much the same adversarial posture in relation to the insured as that of a physician hired by an opposing party to perform an IME for the purpose of litigation. All of the trustworthiness issues that pertain to Dr. McCraney’s IME report apply equally to Dr. Phillips PIP report. Therefore, we also conclude that it was an abuse of discretion to admit the report of Dr. Phillips as a business record.”

Dr. Fleischer’s affidavit is predicated upon hearsay where it merely refers to a hearsay document. “An affidavit predicated on inadmissible hearsay does not comply with the summary judgment rule and cannot be utilized in support or in opposition to summary judgment.” B.D. Ham v. Heintzelman’s Ford Inc., 256 So.2d 264, 268 (Fla. 4th DCA 1972) (emphasis added); Cappello v. Flea Market U.S.A., Inc., 625 So.2d 474 (Fla. 3rd DCA 1993) (Affidavit based on inadmissible hearsay statements is not competent to defeat a motion for summary judgment).

The Court is persuaded by the argument of Plaintiff’s counsel that Dr. Fleischer’s peer review is not a valid report under Fla. Stat. § 627.736(7). In order for UNITED to withhold an insured’s benefits on the basis of a medical report, the report must comply with the statute. Section 627.736(7)(a), Florida Statutes, (2001) states in relevant part that:“An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.”(emphasis added).

The Court is bound by the Third District’s holding in United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999) where the Court held that the insurer must obtain a report under § 627.736(7)(a) before withholding payment on grounds of a medical opinion. The Viles Courtcited Derius v. Allstate Indemnity Co., 723 So.2d 721, 723 (Fla. 4th DCA 1998) with approval to support its holding. In Derius, the Fourth District explained that if the insurer were to act without complying with § 627.736(7)(a), termination of benefits on the basis of a medical opinion is ineffective:

“The quoted language from section 627.736(7)(a) sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective.”

Id. at 273. In a number of recent appellate rulings, the Eleventh Circuit has said the insurer must obtain a medical report from a physician under § 627.736(7) before withholding the insured’s benefits on the basis of a medical opinion. See e.g. United Auto. Ins. Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (Fla. 11th Cir. App. 2004) (“We adhere to the view that under Fla. Stat. 627.736(7)(a) a medical report stating that the treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment of PIP benefits.”) (citation omitted) (emphasis added); United Auto. Ins. Co. v. Professional Medical Grp., as assignee of Sol Angel Hurtado, 11 Fla. L. Weekly Supp. 877a (Fla. 11th Jud. Cir. App. 2004) (“Although not dispositive, we adhere to the view that under Fla. Stat. 627.736(7)(a) a medical report stating that treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment of PIP benefits.”) (citation omitted); United Auto. Ins. Co. v. Michael Rose M.D., as assignee of Juan Velazquez, 11 Fla. L. Weekly Supp. 1042a (Fla. 11th Jud. Cir. App. 2004) (“[T]o the extent United Auto was denying payment of the bill on the ground that the treatment was unreasonable or unnecessary on any ground other than that the charges were too high, United Auto would have to submit a report from a physician pursuant to Florida Statute, section 627.736(7)) (emphasis added).

Although Fla. Stat. § 627.736(4) does not expressly require a valid medical report within thirty (30) days, § 627.736(7) requires a valid report before withholding an insured’s benefits on the grounds of a medical opinion. UNITED did not obtain Dr. Fleischer’s report before refusing to pay insured’s benefits; rather, the report was obtained a year after the bills were submitted to UNITED and after the commencement of this lawsuit. The Court also notes that before suit, UNITED did not advise the insured that benefits were being denied pursuant to a medical opinion nor did UNITED request the insured to appear for an IME. Withholding an insured’s benefits on the basis of a medical report obtained a year after benefits were due, runs afoul of the underlying public policy of the No Fault law. See Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266, 1268 (“[T]he plain meaning and intent of Section 627.736(4)(b), . . . is to guarantee swift payment of PIP benefits.”) (emphasis added)

Plaintiff’s counsel argues and the Court agrees that Dr. Fleischer’s report is invalid where the report is not factually supported by a physical examination performed by an IME physician. A valid report is defined under § 627.736(7), Florida Statutes, (2001) as“one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” (emphasis added) The term “and” clarifies the legislature’s intent that a records review must be supported by a physical examination.

“Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2002) (emphasis added).“Legislative intent must be determined primarily from the language of the statute.” Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla. 2000) (citation omitted). When the statute is clear and unambiguous and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. Id. Because § 627.736(7) is clear and unambiguous, the Court finds that a records review (i.e. peer review) without a physical examination performed by an IME physician is unauthorized. Section 627.736(7) was amended in 2001 to require that a records review must be supported by a physical examination performed by an IME physician. See Laws 2001, C. 2001-271 § 6, eff. June 19th, 2001. The senate staff analysis report for senate bill 1092 states that the legislative purpose of amending § 627.736(7) is to“help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.” See Senate Staff Analysis & Economic Impact Statement, dated March 26th 2001, Senate Bill 1092 (emphasis added). In barring the use of a pure records review, the Legislature has placed the ‘onus‘ on the insurer to request an IME during the time the insured is treating to perfect a statutory defense under § 627.736(7).

The Supreme Court’s ruling in Rodriguez, 808 So.2d at 82, bars UNITED from circumventing the requirements of § 627.736(7). The precise issue in Rodriguez was articulated by the Supreme Court as follows:“If payment of benefits for a PIP claim is “overdue” under section 627.736, Florida Statutes (1997), are the penalties set forth in the Florida Statutes the only penalties that may be levied against the insurer or is the insurer forever barred from contesting the claim?” Id. at 84-85(emphasis added). The Rodriguez Court held that once liability is established, the only penalties under § 627.736 are attorney’s fees and late interest; the statute does not bar the insurer from contesting the claim where it fails to pay the insured’s claim within thirty days. Id. The Rodriguez Court also found that the Third District Court erred where it defined ‘reasonable proof’ under § 627.736(4) to mean only a medical report:

“Further, the district court held that in order to escape the thirty-day rule, an insurer must obtain a “medical report” showing that the insurer is not responsible for payment. Amici Allstate Insurance Company and Geico Casualty Company point out that this requirement of a medical report is not mentioned anywhere in section 627.736(4) and they contend it is erroneous. Amici are correct. The statute does not mention “medical report” in this regard; the statute simply says that the insurer must pay benefits within thirty days unless the insurer “has reasonable proof to establish that the insurer is not responsible for payment.” The statute [§ 627.736(4)] does not limit “reasonable proof” to a “medical report.” Thus, to the extent that the present district court opinion defines “reasonable proof” to mean only a medical report, the district court has rewritten the statute. This too was error.”

Id. at 87 (emphasis added)

In the concurring opinion, Justice Pariente also found that late interest under § 627.736(4) applies if the insurer is ultimately found liable and that “reasonable proof” under § 627.736(4) is not limited to a medical report under § 627.736(7). However, Justice Pariente notes § 627.736(7) requires a medical report stating treatment no longer meets the statutory criteria as a condition precedent to withholding the insured’s benefits:

“[Fla. Stat. 627.736(7)] requires that a PIP insurer obtain a medical report as a condition precedent to withdrawing benefits. Nothing in the language of section 627.736(4)(b) suggests that the “reasonable proof” necessary to avoid “overdue” status is limited to the “report” necessary to “withdraw” payment of a treating physician under section 627.736(7)(a). See § 627.736(4)(b). In my view, this interpretation of the “reasonable proof” requirement in section 627.736(4)(b) and the medical report requirement of 627.736(7)(a) give meaning and effect to both statutory provisions, with each section operating independently of the other.”

Id. at 89 (Pariente, J.) (concurring) (emphasis added) (alteration in original)

The Court is persuaded that Rodriguez did not overrule Viles explicitly or implicitly. No where in the Court’s discussion in Rodriguez, did the Court address the propriety of Viles. Instead, Rodriguez stands for the narrow proposition that “reasonable proof” under § 627.736(4) is not limited to a medical report under § 627.736(7); that § 627.736 is not a strict liability statute that bars the insurer from contesting the claim and that the only penalties afforded by the statute are late interest and attorney’s fees. The Rodriguez Court did not say that the insurer may deny an insured’s benefits on the basis of a medical report without complying with the requirements of § 627.736(7).

Based on the Court’s interpretation of Rodriguez, the Court finds that UNITED’s failure to pay benefits within thirty days did not bar all of its defenses. UNITED may pose other defenses such as late notice; which was in fact pled by UNITED in the present matter and was not waived by UNITED’s failure to pay. However, where UNITED seeks to withhold an insured’s benefits on the basis of a medical report, UNITED must comply with § 627.736(7).

UNITED submits that Rodriguez allows an insurer to obtain a medical report as “reasonable proof” to contest whether the services are reasonable, necessary and related without compliance with § 627.736(7). However, that was not the holding in Rodriguez and such an interpretation renders § 627.736(7) meaningless and without a field of operation. It is well settled that a statute should be construed in its entirety and as a harmonious whole. See e.g. Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla. 1961). “It is a cardinal rule of statutory interpretation that courts should avoid readings that render part of a statute meaningless.” Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 456 (Fla. 2000). “[R]elated statutory provisions should be read together to determine legislative intent, so that “if from a view of the whole law, or from other laws in pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature.” Id. at 454 (citation omitted).

Although § 627.736(4) allows UNITED to contest whether the services meet the statutory criteria at any time, § 627.736(7) imposes a strict procedural requirement; which UNITED must comply with to defend the claim on the basis of a medical opinion.⁴ The Court reaches this result by reading §§ 627.736(4) and 627.736(7) in pari materia;which requires the Court to read both sections in a manner where both have a field of operation. See Forsythe, 604 So.2d at 456 (Fla. 2000). There is no express language under § 627.736(4) that allows the insurer to disregard the requirements of § 627.736(7).

UNITED argues that it need not comply § 627.736(7) because benefits were not“withdrawn”since no benefits were paid. According to UNITED, § 627.736(7) only applies where the insurer seeks to withhold payment after the insurer has begun same. The Court is unpersuaded. To withhold payment of an insured’s benefits is indistinguishable from a“withdrawal”of payment. Further, to accept UNITED’s interpretation of the statute leads to an absurd and ridiculous result unintended by the legislature. It is well settled that statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended, by the legislature. Drury v. Harding, 461 So.2d 104 (Fla. 1984). UNITED’s interpretation renders § 627.736(7) meaningless where the insurer would have no incentive to comply with the statute under circumstances, such as here, where the insurer has withheld all benefits from the insured. Further, a complete failure to pay any benefits does not relieve UNITED from its obligation to comply with § 627.736(7) when it seeks to withhold payment on the basis of a medical opinion. See also United Auto. Ins. Co. v. Michael Rose M.D., as assignee of Joyce McElwee, Case No.: 03-641 AP (Fla. 11th Cir. App. 2004) [12 Fla. L. Weekly Supp. 116a] (“[T]o the extent that United Auto was denying payment of a bill on the ground that the treatment was unreasonable or unnecessary on any ground other than that the charges are too high, United Auto would have to submit a report from a physician pursuant to sec. 627.736(7), Fla. Stat. (2004).”) (emphasis added). The Court finds where UNITED proffers a medical report as its “reasonable proof,” under § 627.736(4), the report must comply with § 627.736(7). Accordingly, UNITED in the present matter effectively waived its right to a statutory defense under § 627.736(7) for lack of compliance with same. See United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999) citing with approval Derius v. Allstate Indemnity Co., 723 So.2d 721, 723 (Fla. 4th DCA 1998).

WHEREUPON IT IS HEREBY ORDERED & ADJUDGED

That Plaintiff’s motion for summary judgment with respect to whether the chiropractic services are reasonable, necessary and related is GRANTED.

__________________

¹In its amended affirmative defenses, UNITED withdrew its affirmative defense of late billing and EUO no show. UNITED’s affirmative defense with respect to late notice and standing are not addressed by Plaintiff’s motion for summary judgment.

²At the time of the hearing, Defense counsel withdrew UNITED’s affirmative defense with respect to the licensure status.

³See § 90.901, Fla. Statutes, (1997) (“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”) (emphasis added)

⁴Even though § 627.736(4) allows the insurer to contest whether the services meet the statutory criteria at any time, § 627.736(4) is silent concerning how the insurer may contest it.

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