12 Fla. L. Weekly Supp. 877a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Insurer created jury issue as to whether treatment was reasonable, related and necessary where insurer severely impeached medical provider during cross-examination with respect to provider’s inability to determine when accident occurred from clinical evaluation of insured who presented for treatment one month after accident, provider’s failure to include insured’s physical labor in prior history, and provider’s inability to tell how insured’s cyst came about or logically relate cyst to accident, and jury issues were also presented by insured’s testimony with respect to delay in seeking treatment and lack of physical injury in accident — Renewed motion for directed verdict and motion for judgment notwithstanding verdict in insurer’s favor is denied
LAZARO VEGA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 01-10986-CC-25 (01). June 22, 2005. Mark King Leban, Judge. Counsel: Amado Alan Alvarez, Miami. Dwayne K. Terry, Coral Gables.
ORDER DENYING PLAINTIFF’S RENEWED MOTION FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT NOT WITH STANDING THE VERDICT
THIS CAUSE having come before the Court on plaintiff Lazaro Vega’s Renewed Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict, and the Court having presided over the trial in this cause, considered the pleadings and being otherwise duly advised in the premises, hereby makes the following findings of fact and conclusions of law:
FACTUAL RECITATION
Plaintiff Lazaro Vega was involved in an automobile accident on May 16, 2001, and sustained injuries for which he sought medical treatment, and subsequently made a claim for personal injury protection benefits with defendant United Automobile Insurance Company. The defendant denied payment and plaintiff filed suit. Trial by jury commenced on June 9, 2004, resulting in a verdict for the defendant. During trial, at the conclusion of all of the evidence, the plaintiff moved for a directed verdict. The Court reserved ruling thereon and, as stated, the jury returned a zero verdict finding for the defendant.
Although the Court will recite the pertinent facts germain to this post-trial motion in more detail below, as an overview, the facts reveal that at trial, the plaintiff presented expert medical testimony from Dr. Jose L. Hernandez, who testified that the plaintiff’s treatment was reasonable, related, and necessary with respect to the accident of May 16, 2001. Defendant United Automobile presented no medical testimony from any physician stating that such treatment was not reasonable, related, and necessary. The defense presented no peer review, nor any testimony from the independent medical examination doctor, Guillermo Blanco. Instead, the defense relied entirely upon its cross-examination of the plaintiff’s expert, Dr. Hernandez.1
Accordingly, in the plaintiff’s timely post-trial Renewed Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict, the plaintiff argues:
Once it was proven at trial that the Defendant UNITED AUTOMOBILE did not have any “reasonable proof” to deny that the medical bills incurred were necessary, related and reasonable, and once it was proven that the Defendant UNITED AUTOMOBILE had no physician’s report or peer review or medical doctor in the same licensing chapter as Dr. Hernandez to testify in opposition to Dr. Hernandez’ medical testimony, the Plaintiff Vega was, as a matter of law, entitled to a directed verdict. See Renewed Motion at page 14.
Plaintiff, Lazaro Vega, testified to his accident of May 16, 2001, revealing that he first sought medical treatment one month later on June 16, 2001. Prior to the accident, Mr. Vega suffered no injuries to his neck or back. He explained the reasons for the one month delay in seeking treatment, that he initially felt no pain, but that when the pain began, he took medication and thought it would go away. In addition, plaintiff had no insurance and did not know how he would pay if he went to a doctor. Plaintiff had worked installing windows and also did yard cleaning, using a mowing machine; this involved very physical work, although at the time of the accident, plaintiff had not been working for about three weeks.
During the accident, plaintiff’s body did not hit any part of the vehicle’s interior and he had no visible injuries; however, the impact shook him. He was able to exit the car with no problems. He did not complain to the police officer of any injuries, nor did he go to the hospital. Instead, he drove home in the same vehicle involved in the accident.
The plaintiff’s pain started about one week later and he took Advil which did not help. The pain increased. Plaintiff later learned that the owner of the vehicle he was driving had insurance. It was then that he went to the clinic for treatment. When he saw Dr. Hernandez, the doctor did not ask what work plaintiff did or if he had hurt himself during yard work. However, during the plaintiff’s various jobs, he never had injuries to his neck or back.
Dr. Jose Hernandez testified on direct examination that he examined the plaintiff and found trauma that must have occurred because plaintiff reported severe muscle spasms. In Dr. Hernandez’s opinion, the x-rays and the MRI that were ordered were medically necessary and related to the accident. Dr. Hernandez took a medical history from Mr. Vega which revealed no previous trauma. Dr. Hernandez found a hematoma covered by tissues; it takes three to four weeks to resolve to form a cyst. The cyst is permanent, and can be seen in the x-rays. The cyst was on the plaintiff’s right side, although the pain was on his left side. In Dr. Hernandez’s opinion, the office visits were medically necessary and related to the accident, as was all therapy that the plaintiff received. All fees charged were reasonable.
On cross-examination, Dr. Hernandez stated that he was not board certified in the United States, but only in Cuba; he stopped practicing surgery 25 years ago.2 Although Dr. Hernandez opined that the plaintiff’s injuries were related to the accident, he could not tell the jury when it occurred from his clinical evaluation, nor could he tell the jury how the cyst came about, so logically, he could not say that the cyst was related to the accident. With regard to Dr. Hernandez’s taking of the plaintiff’s prior history, Dr. Hernandez testified that it would not matter what the plaintiff did for a living as far as the cause of the accident. Dr. Hernandez knew about the one month delay before plaintiff sought treatment, but explained that sometimes, as the swelling increases, the pain becomes more severe. The cyst was part of the plaintiff’s problems, and if it was congenital, it would have calcified, but this particular cyst was soft.
On redirect examination, Dr. Hernandez reiterated that the modalities provided for plaintiff were reasonable and medically necessary. The same is true for the x-rays and other tests.
At the close of all the evidence, plaintiff moved for a directed verdict, arguing that the defense had presented no medical testimony to contradict that of Dr. Hernandez, and that pursuant to United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), as well as section 627.736(7)(a), Florida Statutes, the plaintiff was entitled to a directed verdict. As stated, this Court reserved ruling, and submitted the case to the jury, which returned its zero verdict in favor of the defendant.
CONCLUSIONS OF LAW
Contrary to the plaintiff’s arguments, this Court finds that the Viles decision does not control this case. Viles does not turn on whether the insurer severely impeached the plaintiff’s medical expert; indeed, it appears that such was not the case in Viles.3 Rather, this Court finds that the controlling line of authority in this situation is that represented by Evans v. Montenegro, 728 So.2d 270, 271 (Fla. 3d DCA) rev. denied, 741 So.2d 1135 (Fla. 1999), where the Third District stating the following rule:
A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. Once this is done, the burden shifts to the defendant to: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.
This Court finds that the defendant did indeed “severely impeach” the cantankerous Dr. Hernandez during cross-examination, sufficient to present a jury question on the pertinent issue of whether the medical treatment provided to the plaintiff was reasonable, related, and medically necessary to treat the injuries he sustained during the May 16, 2001, accident. Apart from the intangible demeanor factor alluded to above, see note 2 supra, the Court finds that Dr. Hernandez was sufficiently impeached to present a jury issue with respect to his inability to determine when the accident occurred from his clinical evaluation of the plaintiff given the one month delay in the plaintiff’s seeking treatment, his failure to include in his prior history of the plaintiff the plaintiff’s physical labors during his jobs, and, most crucially, his inability to tell the jury how the cyst came about or to logically relate it to the accident. Moreover, jury issues were presented within the plaintiff’s own testimony with respect, once again, to the one month delay in his seeking treatment, coupled with his testimony that no part of his body hit the vehicle’s interior during the accident, and that he suffered no visible injuries4 apart from being shaken during the accident. In addition, he was able to exit the vehicle without difficulty and never complained to the police about injuries, did not go to the hospital, and drove himself home in the very vehicle involved in the accident.
In Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993), the Supreme Court addressed “the issue of the jury’s ability to accept or reject the testimony of a medical expert.” At trial, the jury found that plaintiff Rhodes had not sustained a permanent injury; Rhodes filed a motion for new trial “arguing that the uncontradicted medical evidence indicated that she had sustained permanent injuries as a result of the auto accident.” Id. at 496. The motion for new trial was denied by the trial judge and, on appeal, the First District reversed finding that “Rhodes had presented expert medical testimony that she had sustained permanent medical injuries as a result of the auto accident and that this medical evidence was uncontroverted because [d]efendant Easkold presented no medical testimony to the contrary. . .”. Id. at 497. [Emphasis added]. Quashing the First District’s decision, the Supreme Court held:
This decision is contrary to the Florida Standard Jury Instruction (Civil) 2.2(b), relating to the believability of expert witnesses. Instruction 2.2.(b) provides that the jury “may accept [expert witness] opinion testimony, rejected, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.” Fla. Std. Jury Instr. (Civ.) 2.2(b) (emphasis added). As noted in the comment to the instruction, this instruction is based upon Shaw v. Puleo, [159 So.2nd 641, 644 (Fla. 1964)] wherein this Court recognized that the jury is free to “accept or reject the testimony of a medical expert just as it may accept or reject that of any other expert.”
Although the Easkold decision reveals a fact pattern that differs from the case at bar (i.e., the uncontroverted medical testimony presented by the plaintiff was deemed to conflict with the lay testimony of the plaintiff about her prior medical history), Easkold has been applied to a variety of factual situations where the medical testimony itself was uncontroverted by countervailing medical testimony. See United States Fidelity & Guaranty Company v. Perez, 622 So.2d 486 (Fla. 3d DCA 1993) (“The jury was entitled to render a finding contrary to the uncontradicted expert testimony regarding the permanency of plaintiff’s injury. [Citations omitted]. The trial court erred when it failed to submit the issue to the jury.”); State Farm Mutual Automobile Insurance Company v. Brooks, 657 So.2d 17 (Fla. 3d DCA 1995) (while plaintiff’s medical expert was unrefuted by contradictory medical evidence, plaintiff “had not requested medical care at the scene of the accident; however, he had gone to see a physician some days later,” and plaintiff’s “testimony could have provided sufficient conflicting lay evidence to support the jury’s rejection of certain medical evidence presented.”). See also Frank v. Wyatt, 869 So.2d 763 (Fla. 1st DCA 2004) (even were there no conflicting expert testimony, “a jury is free to weigh the credibility of an expert witness just as it does any other witness, and to reject such testimony, even if uncontradicted.”). And see Jarrell v. Churm, 611 So.2d 69, 70 (Fla. 4th DCA 1992) (“when the proponent of permanency supports that hypothesis with expert testimony, the opponent of permanency, in order to carry the issue to the jury, must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.”).
This Court finds that the defendant met its burden to “carry the issue to the jury” when it severely impeached Dr. Hernandez, and when the record reflects the plaintiff’s own testimony that arguably raises jury issues concerning the delay in his seeking treatment, his lack of bruises, his work history, and his driving home immediately after the accident.
In Interamerican Car Rental, Inc. v. Gonzalez, 638 So.2d 89, 91 (Fla. 3d DCA), rev. denied, 649 So.2d 233 (Fla. 1994), the Third District held:
Once all the testimony is considered in this case, this case presents a jury question on the issue of whether the plaintiff was permanently injured. The trial court erred in directing a verdict on this issue. See Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993) (Jury free to accept, reject, or give medical expert opinion weight it feels it deserves based upon all evidence presented.); United States Fidelity & Guar. Co. v. Perez, 622 So.2d 486 (Fla. 3d DCA 1993) (Jury entitled to render finding contrary to uncontradicted expert testimony regarding permanency of plaintiff’s injury.).
Based upon the above and foregoing authority, it is
ORDERED AND ADJUDGED that plaintiff’s Renewed Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict be and the same is hereby DENIED.
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1The defense did present the testimony of its corporate representative, Clara Noda, who this Court finds is not competent to refute Dr. Hernandez’s expert medical opinion regarding whether the treatment at issue was related and medically necessary. See United Automobile Insurance Company v. Neurology Associates Group Two, Inc., a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204b (Fla. 11th Cir. Ct., January 13, 2004) (“the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary”).
2Although the “cold record” does not reveal such things as demeanor and physical appearance, this Court observes that Dr. Hernandez is an elderly, frail individual, that his testimony was rambling and somewhat professorial, in that he utilized a pointer in a lecture-like fashion to demonstrate various parts of the body on the demonstrative charts that he utilized during his testimony. The record, once again, cannot reveal the rather feisty nature of Dr. Hernandez’s testimony during cross-examination.
3This Court, however, does not agree with the defense distinction of Viles on the basis that “Viles only applies where the insurer had already paid some benefits on a claim, but has refused to pay further benefits,” whereas in the case at bar, “no benefits were paid” at all.
4In contrast, Dr. Hernandez found a hematoma.
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