12 Fla. L. Weekly Supp. 892a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Where medical provider filed affidavit attesting that medical treatment was necessary and related to automobile accident and that charges were reasonable for services provided, insurer filed opposing affidavit from adjuster stating charges were not reasonable per insurer’s bill auditing program but no evidence that services were not necessary and related, and adjuster’s deposition indicates that she could attest that bills were reduced due to use of auditing program but could offer nothing to allow court to conclude results of auditing program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 320c
JEFFREY B. FRIEDMAN, M.D., P.A., (as assignee of William Deacon), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit for Seminole County. Case No. 03-SC-2583. June 9, 2005. John R. Sloop, Judge. Counsel: Glenn Klausman, Altamonte Springs, and Roy J. Smith, Weiss Legal Group, P.A., Maitland, for Plaintiff. George Milev, Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
This cause came before the Court on the Plaintiff’s Motion For Final Summary Judgment. The defendant previously withdrew all affirmative defenses, except the defense the two medical bills at issue were not reasonable in amount, related to the accident, or for necessary medical treatment.
The plaintiff, a medical doctor, filed an affidavit in support of the plaintiff’s motion for summary judgment, attesting to the fact he is a board certified orthopaedic surgeon in Winter Park, Florida; who has practiced medicine since 1985, with his own practice since 1999. The affidavit states he examined, evaluated, and provided medical treatment to Mr. Deacon on April 15, 2003, and on June 9, 2003 and the medical treatment on both dates was necessary and related to a motor vehicle accident of March 17, 2003. The affidavit states Dr. Friedman billed amounts for services that are consistent with the same charges by others in the medical community for the same CPT codes. The affidavit states based upon Dr. Friedman’s experience the charges were reasonable for the services provided.
Rule 1.510(e), Florida Rules of Civil Procedure, states the requirements of an affidavit related to a motion for summary judgment as follows:
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
The Court finds from the record, which includes the deposition of Dr. Friedman, that Dr. Friedman is competent to testify to the matters in his affidavit and would be capable of testifying at trial to those same matters. The affidavit was sufficient to shift the burden to the defendant to present an opposing affidavit or evidence the bills at issue were not reasonable, necessary, or related to the accident at issue.
The defendant filed an affidavit from the defendant’s adjuster Cheryl Shaw, stating based upon her personal knowledge: “The charges for the bills for dates of service 4/15/03 and 6/9/03 were not reasonable per Defendant’s bill auditing system/program.”
The defendant presented no competent evidence as to the defense the bills at issue were not necessary or related to the accident at issue. From the record before the court, the remaining question is whether the defendant has met the burden to overcome the entry of final summary judgment on the issue whether the two bills at issue were reasonable in amount.
The deposition testimony of Cheryl Shaw was she relied solely on Mitchell Medical to determine the reasonable amount of Dr. Friedman’s charges. She testified she had no information how Mitchell Medical determined the reasonable amount of the bills at issue. From reviewing the deposition testimony of Cheryl Shaw, this affiant could attest the bills at issue were reduced due to the insurer using the Mitchell Medical auditing system, but she could offer nothing that would allow the Court to conclude the results of the insurer’s auditing system would be admissible evidence. Based upon the deposition of Cheryl Shaw, and the record before the Court as argued by the defendant insurer, there is no basis for the Court to conclude the results of the insurer’s auditing system in auditing the bills at issue would be admissible evidence. The insurer has failed to meet its burden in opposition to the plaintiff’s motion for summary judgment.
The Plaintiff’s Motion For Final Summary Judgment is granted. The Court reserves jurisdiction as to the issues of attorney fees, costs, and interest.
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