12 Fla. L. Weekly Supp. 888b
Insurance — Personal injury protection — Claim forms — Signature of physician — Where insurer was provided all information needed to process claim despite use of stamp to affix physician’s signature and misplacement of physician’s license number in wrong box on form, claim form was substantially complete and accurate — Coverage — Medical expenses — Reasonable, related and necessary services — Where insured filed affidavit of treating orthopaedic physician stating that orthopaedic treatment rendered was reasonable, related and necessary, and insurer submitted affidavit of physician of undisclosed specialty who performed independent medical examination stating that further treatment in his specialty would not be reasonable, related or necessary, there is no competent evidence of record to dispute that any orthopaedic treatment was reasonable, related and necessary — Where insured filed affidavit of treating chiropractor stating that chiropractic treatment rendered was reasonable, related and necessary, and insurer submitted affidavit of chiropractor who performed IME stating that further treatment would not be reasonable, related and necessary, there is no evidence that chiropractic treatment rendered prior to date of IME was not reasonable, related and necessary — Insured’s motion for summary judgment is granted as to all affirmative defenses except improper CPT billing, on which issue insured offered no evidence
ELIAS GARCIA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-12946 COCE 53. July 14, 2005. Robert W. Lee, Judge. Counsel: Cris Boyar, Margate, for Plaintiff. Leandro Lissa, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 29, 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, finds as follows:
Background: On August 4, 2004, the Plaintiff filed its Complaint in three counts against the Defendant seeking, among other things, damages for failure to pay PIP benefits arising out of a motor vehicle accident that allegedly occurred on November 12, 2003. The Plaintiff sought payment for medical treatment rendered from November 12, 2003 to January 28, 2004, involving radiological, orthopaedic, chiropractic, medical, and ambulance services.
On September 23, 2004, the Defendant filed its Answer and Affirmative Defenses. The Defendant admitted that an insurance policy was in effect, but denied that benefits were due. It also set forth six affirmative defenses: (1) failure of provider to sign Box 31 of the CMS form; (2) that any medical expenses incurred after January 30, 2004 were not reasonable, related, or medically necessary; (3) improper CPT billing; (4) failure to comply with a condition precedent of providing a statutory notice; (5) that the medical bills were not reasonable, related or necessary; and (6) failure of Plaintiff to provide proof of a covered loss.
On December 1, 2004, this Court dismissed counts II and III of the Complaint, leaving only the damages count pending. On December 6, 2004, the Plaintiff filed his Amended Complaint sounding in two counts, damages and declaratory relief. On December 27, 2004, the Defendant filed its Answer to Plaintiff’s Amended Complaint, reasserting the same six defenses previously asserted.
On May 27, 2005, the Plaintiff filed its Motion for Summary Judgment. In support of the Motion, the Plaintiff filed an Affidavit of Richard Linn, M.D., and an affidavit of Robert J. Hanopole, D.C. The matter was set before the Court for June 29, 2005. Two days prior to the hearing, the Defendant served its Notice of Filing Affidavit of Mary Vojtasek, IME of Dr. Maleki, IME of Dr. Merritt, Cut-Off Letters, and Excerpts of Laura Rudnick’s Deposition, all in opposition to Plaintiff’s Motion for Summary Judgment.
At the hearing, the Plaintiff pointed out that the IME report dealt only with orthopaedic and chiropractic care, but not the medical care. He further argued that Vojtasek’s Affidavit was facially insufficient, and that the IMEs deal with treatment after the cut-off date.
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). The issue for the Court is whether the pleadings on file and record evidence dispose of the Defendant’s six affirmative defenses, as well as establish that Elias Garcia was involved in an automobile accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists as to five of the six affirmative defenses.
Proof of Notice of a Covered Loss. The Defendant argues that the CMS forms are facially deficient, and as a result, fail to put the insurer on notice of a covered loss as required by Fla. Stat. §627.736(5)(d). The pertinent portion of this statute reads: “an insurer shall not be considered to have been furnished with notice of the loss or medical bills due unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein” (emphasis added). The statute further requires the use of the CMS 1500 form (or its equivalent), which for a provider other than a hospital must also include the provider’s “professional license number” being noted in the signature box.
As pertains to the chiropractic services, the Defendant points out two deficiencies: the provider used a stamped signature which was affixed by the physician’s staff, and the provider listed his professional license number in Box 33 under his name and address, rather than in Box 31, under his signature. In analyzing the Defendant’s argument, the Court first considers the statutory definition of “properly completed.” The Legislature has defined this term as meaning “providing truthful, substantially complete, and substantially accurate responses to all material elements to each applicable request for information or statement” (emphasis added). Fla. Stat. §627.732(13). This definition was added by Fla. Session Law 2003-411, §7, which took effect on October 1, 2003, prior to the dates of service in this case.
No reported case law has apparently yet discussed the parameters of this provision. One treatise explains the provision as follows:
The provision is new and untested, and moreover — painfully unclear. Though it would appear that by the use of terms such as “substantially complete,” “substantially accurate,” and “all material elements,” and by providing a means for waiver by agreement of the parties,” the legislature seemed to have intended a common sense test to determine if a bill is properly completed — that is, if the insurer has all of the information needed to process the claim, or agreed to accept the information, the bill is “properly completed.”
R. Lazega, Florida Motor Vehicle No-Fault Law §5:10 (2004) (emphasis in original).
Proceeding to the question of the use of a stamped signature, the Court notes that federal regulations governing use of CMS forms likewise provide that the form is to be “signed by the provider, supplier, or hospital.” 42 CFR §424.33(b)(2005). Administrative regulations further elaborate that the “Physician (Supplier) Signature Requirement” may be met by “authoriz[ing] an employee (e.g., nurse, secretary) to enter the physician’s signature in item 31 [. . . :] (1) Manually; (2) By stamp-facsimile or block letters; [or] (3) By computer. Carriers Manual Part 3, §3057(B)(1)(d)(2004). Copies of the federal regulation and administrative regulation are attached to this Order and made a part of the record as Exhibit “A” to this Order. In the instant case, the signature is provided by stamp-facsimile. The deposition of the physician’s staff member Laurie Rudnick, which was attached to the Defendant’s filing in opposition to summary judgment, establishes without dispute that it was office practice for a staff member to affix the stamp-facsimile signature on behalf of the physician provider. (Depo. of L. Rudnick, p. 37, l. 23-p. 39, l. 13).
As for the physician’s license number, one circuit appellate court has ruled that the absence of this information does not put the insurer on “notice of a covered loss” as required by statute. Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637, 637 (13th Cir. Ct. 2005). The instant case, however, deals with another scenario: when the information is provided, but placed in the wrong box. The cases provided by Defendant likewise address only the absence of the information. See Top Chiropractic v. Nationwide Mutual Ins. Co., 12 Fla. L. Weekly Supp. 152 (Orange Cty. Ct. 2004); Miami Medical Group v. Progressive Southeastern Ins. Co., 11 Fla. L. Weekly Supp. 246 (Miami-Dade Cty. Ct. 2004). The decision in these three cases is understandable in light of the Legislature’s specific inclusion of the license requirement in the statute. As a result, the license requirement is “material” under Fla. Stat. §627.736(5)(d). To determine whether the mere misplacement of the material information ends in the same result, the Court next considers how Florida courts have construed “substantially complete” in analogous contexts.
A review of Florida cases involving construction of expressions similar to “substantial completion” indicates that a court should overlook mere technical deficiencies and instead look at whether the party is provided with all material information necessary to permit clear review. Fla. Jur. 2d Words & Phrases S-Z, 288 (2005). Therefore, the misplacement of the physician’s license on the CMS form does not, standing alone, mean that the insurer was not provided proof of notice of a covered loss. The Defendant does not claim that this defect caused it any difficulty in reviewing the claim.
The Defendant was clearly provided all information needed to process the claim. As a result, the Court finds that the stamped facsimile signature and inclusion of the physician’s license in Box 33 rather than Box 31, without any other defects in the form, lead to the conclusion that the CMS form is “substantially complete, and substantially accurate [. . .] as to all material elements.” Therefore, the Court holds that the Plaintiff is entitled to summary judgment on the Defendant’s first affirmative defense concerning the signature requirement, Defendant’s fourth affirmative defense concerning failure of a condition precedent, and Defendant’s sixth affirmative defense concerning providing proof of notice of a covered loss.
Reasonable, Related, and Necessary. On the issue of reasonable, related, and necessary, raised in the Defendant’s second and fifth affirmative defenses, the Plaintiff seeks payment of bills payable to six providers: medical treatment, hospital treatment, ambulance service, chiropractic treatment, orthopaedic treatment, and radiological treatment. In support of these invoices, the Plaintiff provided the affidavit of Richard Linn, M.D., who asserted that the orthopaedic treatment rendered on November 12, 2003 was reasonable, related, and necessary. Dr. Linn’s affidavit is facially sufficient to meet the requirements of competent evidence. The Plaintiff also provided the affidavit of Robert J. Hanopole, D.C., who asserted that the chiropractic treatment rendered from November 14, 2003 – May 11, 2004 was reasonable, related, and necessary. Dr. Hanopole’s affidavit is facially sufficient to meet the requirements of competent evidence.
In response, the Defendant filed copies of two verified independent medical examinations, Khosrow Maleki, M.D. dated January 30, 2004 and Marvin J. Merrit, D.C. dated April 16, 2004. Dr. Maleki found that “this patient has achieved an end point therapeutic benefit and further treatment within my specialty would not be reasonable, necessary, or related to the motor vehicle accident of 11/12/03.” However, Dr. Maleki does not specify his specialty. As a result, there is no competent evidence of record to dispute that any orthopaedic treatment was reasonable, related, and medically necessary.
Dr. Merrit offered his conclusion that a cervical sprain/strain and cervical para-vertebral muscle spasms were related to the accident, but that they have been resolved. He concluded that this examiner has achieved an end point therapeutic benefit from a chiropractic viewpoint and further treatment as a result of the accident of 11/12/03 would not be reasonable, related, or medically necessary.” As a result, there is nothing of record to dispute that any treatment rendered by Dr. Hanopole prior to April 16, 2004 was reasonable, related, and medically necessary.
The Plaintiff has, however, failed to provide competent record proof on the bills for Cunningham & Raskin, P.A.; Broward General Medical Center; City of Fort Lauderdale; and North Broward Radiologists. Additionally, the Plaintiff has failed to offer anything of record to rebut Defendant’s third affirmative defense set forth in paragraph 10 of its Answer to Plaintiff’s Amended Complaint.
Nevertheless, pursuant to Rule 1.510(d), the Court finds that the following material facts have been established without substantial controversy:
1. The Plaintiff, a medical provider, filed a PIP suit against the Defendant who is a PIP insurer.
2. On 11/12/03, Elias Garcia was injured in a car accident. The affidavits reflect the doctors were informed about this accident and they used this information to assist them in order to assist in diagnosis, prognosis and treatment. Therefore, this fact is admissible. Rule 90.803(4) of the Florida Rules of Evidence.
3. On this day, Elias Garcia was insured by the Defendant and said policy of insurance included PIP benefits. Coverage is not an issue in this case.
4. As a result of the accident, Elias Garcia received care and treatment.
5. The treatment rendered by Orthopaedic Center of South Florida was reasonable, related, and medically necessary.
6. The treatment rendered by Robert Hanopole, D.C. through April 15, 2004 was reasonable, related, and medically necessary.
At any further hearing or trial in this case, these facts shall be deemed established without the necessity of any further evidence or argument. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED in part as set forth above. The Plaintiff is also entitled to summary judgment on all of Defendant’s affirmative defenses except for the third affirmative defense.
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