12 Fla. L. Weekly Supp. 495a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Disputed issue of material fact as to reasonableness, relatedness or necessity of treatment is not created by insurer obtaining peer review stating not all treatment was reasonable, related and necessary after withdrawal or denial of medical payments — Where medical provider’s affidavit establishes that treatment was related to accident but does not offer opinion that treatment was reasonable and medically necessary, and this cannot be inferred from statement that provider examined insured and prescribed treatment she received, affidavit is not sufficient to eliminate all disputed issues of material fact — Insurer cannot challenge whether treatment was reasonable or medically necessary if provider is able to bring forth evidence that treatment was reasonable and medically necessary
KAM HABIBI, D.C., P.A., (a/a/o Marie Doresca), Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-14688 COCE 53. February 25, 2005. Robert W. Lee, Judge. Counsel: Nichole S. Pacella, Fort Lauderdale, for Plaintiff. Brian S. Tenzer, Fort Lauderdale, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 16, 2005 for hearing of the Plaintiff’s Motion for Partial 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: This is a PIP case in which the Plaintiff is a medical provider seeking payment of unpaid PIP benefits. The provider seeks a partial summary judgment establishing that the chiropractic treatment rendered was reasonable, medically necessary, and related to the accident at issue. In support of its Motion, the Plaintiff has filed the affidavit of Dr. Kam Habibi which provides:
[1] “That on from December 16, 2002 through April 23, 2003, Marie Doresca received medical care and treatment at Dr. Kam Habibi, D.C., P.A., [. . .] as a result of a car accident that occurred on November 27, 2002.
[2] That at said time and place, I examined Marie Doresca and prescribed the treatment she received. [. . .]
[3] That Ms. Doresca received all of the treatment that I recommended [. . .] under my supervision and authority.
[4] That the total amount of charges in regards to the treatment rendered to Ms. Doresca as a result of the November 27, 2002 accident is $11,840.00.
The Plaintiff also provided the insurer’s Independent Medical Examination (IME) which was prepared at the insurer’s request by Dr. Marc J. Rogoff. The Plaintiff points out that the IME acknowledges Dr. Habibi’s treatment prior to January 8, 2003 had a “causal relationship between the accident the examinee describes and the symptoms.” Dr. Rogoff further concludes that “no further chiropractic treatment would be reasonable, related or necessary in regard to the November 27, 2002 motor vehicle accident.”
The Defendant responded by arguing that nothing in the affidavit provides an opinion on whether the treatment was reasonable, related, or medically necessary. The Defendant acknowledges that it has not paid any of the bills in this case.
Subsequent to the insurer’s withdrawal of benefits, it obtained a peer review by Dr. H. Seth Klein. He conducted his review on November 1, 2004, well afer the Defendant had determined to withdraw payment of benefits. In it, he offers the opinion that “not all the treatment rendered to Marie Doresca prior to January 8, 2003 was reasonable, related or necessary.”
The Plaintiff has moved to strike Dr. Klein as a witness, arguing that because his review was not done until after the decision was made to withdraw benefits, the Defendant cannot rely on it to dispute that the treatment prior to January 8, 2003 was not reasonable, related or medically necessary.
Conclusions of Law. Under PIP law, an insurer cannot withdraw or deny medical payments based on claim of not being reasonable, related, or medically necessary unless the insurer first obtains the physician’s report required by Fla. Stat. §627.736(7)(a). See United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1998). See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente, J., concurring); Optima Health & Rehab v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty. Ct. 2003). In the instant case, the insurer did obtain a physician’s report on January 8, 2003 to withdraw payment of further benefits. The record evidence establishes, however, that the Defendant received requests for payment prior to that date which it has failed to pay. The affidavit of Dr. Klein was obtained after Allstate had already decided not to pay the claim. As a result, pursuant to the case law and statute cited, a disputed issue of material fact is not created by obtaining a physician’s report after the fact.
The question then is whether Dr. Habibi’s affidavit is sufficient to eliminate any disputed issue of material fact for treatment after January 8, 2003. The Court finds that Dr. Habibi’s affidavit establishes that the treatment rendered was related to the accident at issue. Nowhere in the affidavit, however, does Dr. Habibi offer the opinion that the treatment was reasonable and medically necessary. The Plaintiff argues that this can be inferred from Dr. Habibi’s affidavit. The Court disagrees.
Nevertheless, pursuant to Rule 1.510(d), the Court finds that the following material facts have been established without substantial controversy:
1. The facts set forth in numbered paragraphs [1]-[4] above.
2. The treatment rendered by Dr. Habibi was related to the accident at issue.
3. The Defendant has not paid any of the Plaintiff’s bills in this case.
4. The Defendant cannot challenge whether the chiropractic treatment rendered by Plaintiff prior to January 8, 2003 was reasonable or medically necessary because it failed to obtain the required physician’s report prior to withdrawing payment of benefits if the Plaintiff is able to bring forth evidence that it is reasonable 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 Partial Summary Judgment is granted in part as set forth above. The Court, however, declines to strike Dr. Klein as a witness at this time.
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