12 Fla. L. Weekly Supp. 96a
Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary treatment — Summary judgment — Where medical provider filed affidavits of treating physicians which establish that all treatment was related to accident, reasonable, and necessary; and insurer failed to either substantially impeach medical expert testimony of treating physicians, present countervailing evidence from licensed physician, or establish that provider has not complied with conditions precedent; provider is entitled to summary judgment
MIAMI HEALTH CARE THERAPY CENTER, a/a/o Gloria M. Garcia, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-8164 CC 25 (1). October 25, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Nick Babinsky.
ORDER GRANTING in part PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, MIAMI HEALTH CARE THERAPY CENTER, a/a/o Gloria M. Garcia, Motion for Final Summary Judgment, the Court having heard argument of counsel on August 18, 2004, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED in part. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to a Partial Summary Judgment as a matter of law.
FINDINGS OF FACT
2. The Plaintiff sued the Defendant on July 21, 2003, alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on March 14, 2003.
3. The Plaintiff sued the Defendant for medical expenses in the amount of $6,707.50 for services provided March 17, 2003, through May 9, 2003.
4. On or about August 20, 2003, the Defendant filed its Answer and Affirmative Defenses.
5. The Defendant’s First Affirmative Defense affirmatively alleges that Plaintiff medical care provider, MIAMI HEALTH, failed and/or refused to comply with Fla. Stat. 627.736(5)(b) by failing to timely submit the medical bills and as such, this Defendant is not entitled to pay for services more than 30 days before the postmark date of any and all statements forwarded to Defendant.
6. The Defendant’s adjuster testified and at the hearing the Plaintiff concedes that it submitted medical bills in the amount of $816.00 to the Defendant that were untimely under the PIP statute. These medical expenses were in the amount of $256.00 and $235.00 for the x-rays and $325.00 for the final exam. All other bills were submitted timely. As such, there remains $5,891.50 (this figure is calculated by subtracting the bills submitted late, $816.00, from the total billed, $6,707.50) at issue in the lawsuit.
7. As its Second Affirmative Defense, the Defendant affirmatively alleges the Plaintiff is in violation of §627.736(5)(a). The Defendant alleges that the Plaintiff failed to have the insured or his/her guardian countersign the HCFA forms as mandated by the statute. As such, the Defendant has not been furnished with notice of the amount of a covered loss or medical bills due to non-compliance with the statute. As such, Defendant is not responsible for the subject medical bills.
8. The Defendant withdrew this affirmative defense at the hearing, and therefore, this issue is moot.
9. The Plaintiff filed the deposition transcript of the insured/claimant, Gloria Garcia, who testified she was in the subject motor vehicle accident on March 14, 2003, described the accident, that she was driving her insured vehicle at the time of the accident, that her vehicle was insured by United Automobile, testified that she was injured as a result of the accident, described her injuries, testified that she sought medical care and attention for her injuries at MIAMI HEALTH, received therapy at MIAMI HEALTH, and described the therapy. (See deposition transcript of Gloria Garcia taken on October 30, 2003, and filed with this Court on or about May 25, 2004).
10. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Ivonne Cossio, taken on October 30, 2003. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
11. According to Ms. Cossio, the Defendant received medical bills from MIAMI HEALTH on April 23, 2003, for dates of service March 17, 2003, through April 7, 2003, in the amount of $2,448.50. These bills were postmarked April 12, 2003. She stated she also received an initiation of treatment letter on April 23, 2003.
12. Ms. Cossio testified that none of these bills were paid because the HCFAs did not include a countersignature and some of the charges were above the usual and customary amounts, and that there were discrepancies between the claimant’s EUO testimony and the bills received. Specifically, the claimant stated in her EUO she received certain modalities on each visit and the HCFAs revealed these modalities were not billed each and every date of service.
13. According to Ms. Cossio, United Automobile received medical bills from MIAMI HEALTH on May 7, 2003, for dates of service April 9, 2003, through April 24, 2003, in the amount of $1,749.00. These bills were postmarked April 28, 2003. United Automobile did not pay these bills for the same reasons.
14. According to Ms. Cossio, United Automobile received medical bills from MIAMI HEALTH on May 14, 2003, for dates of service March 17, 2003, through May 5, 2003, in the amount of $1,657.00. These bills were postmarked May 10, 2003. United Automobile did not pay these bills for the same reasons.
15. Additionally, Ms. Cossio stated the bill for March 17, 2003, for two x-rays, was untimely. The amounts billed for the x-rays were $256.00 and $235.00.
16. Ms. Cossio stated United Automobile received medical bills from MIAMI HEALTH on May 29, 2003, for dates of service May 7, 2003, through May 9, 2003, in the amount of $528.00. These bills were postmarked May 24, 2003. United Automobile did not pay these bills for the same reasons.
17. Additionally, Ms. Cossio testified, United Automobile received medical bills from MIAMI HEALTH on June 27, 2003, for date of service May 9, 2003, in the amount of $325.00. This bill was postmarked June 27, 2003 . United Automobile did not pay because it was untimely.
18. Ms. Cossio further inferred there may exist a potential misrepresentation as the claimant/insured resided with her twin sons at the time she applied for insurance, but did not list them on her application. Ms. Cossio did not know if these boys possessed driver’s licenses. The Defendant never raised the defense of material misrepresentation in its pleadings and did not argue this defense at the hearing.
19. Ms. Cossio also testified the Defendant suspended “MD benefits” for the claimant as of July 3, 2003, based on an IME report by Peter Sciarreta, MD, performed on May 20, 2003. The subject dates of service in this lawsuit are all pre-IME, and therefore, the Defendant did not rely on the IME suspension for denying payment.
20. Ms. Cossio testified in deposition that the following medical expenses were above usual and customary and what the reasonable amounts for these charges are pursuant to a fee guide:
CPT code Billed Amount Reasonable Charge 97010 $45.00 $35.00 97014 $55.00 $39.78 97035 $55.00 $40.95 97110 $76.50 $56.16
21. The Defendant untimely served an affidavit of Ms. Cossio on August 17, 2004, and the Plaintiff objected to the Court considering this affidavit. The Court overrules the Plaintiff’s objection and considers the affidavit. Ms. Cossio confirms these amounts in her affidavit. For purposes of the Summary Judgment hearing, the Plaintiff is entitled to these amounts as reasonable. The reductions to the medical expenses made by Ms. Cossio at United Automobile remain genuine issues of material fact for the jury.
22. The Defendant also untimely served an affidavit of Dr. Neil H. Fleischer with attached Peer Review dated November 10, 2003, on August 17, 2004. Dr. Fleischer had the opinion that CPT codes 99205 and 99215 were not reasonable and necessary as it relates to the accident since there is no documentation to substantiate the E/M procedure or level. For purposes of this Summary Judgment hearing, the Plaintiff is not entitled to these charges.
23. Dr. Fleischer also testified that 97124 and 97530 were not reasonable and necessary as it relates to the accident in question, since other modalities were performed. For purposes of this Summary Judgment hearing, the Plaintiff is not entitled to these charges.
24. The remaining medical expenses are reasonable (with Ms. Cossio’s reductions), related and necessary. The Plaintiff filed affidavits of the treating physician and person with the most knowledge of the billing and records from MIAMI HEALTH, which establish that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and all of the treatment was related to the subject accident, reasonable and necessary.
25. It remains undisputed that the Defendant received medical bills from the Plaintiff in the above stated amounts. After the reductions by the Defendant and the withdrawal of certain medical expenses not allowed by Dr. Fleischer (discussed supra), it undisputed the Plaintiff is entitled to, at a minimum, $2,382.56. The amount was calculated as follows: $665.00 for CPT # 97010 (19x at $35.00/ea.); $755.82 for CPT #97014 (19x at $39.78/ea.); $737.10 for CPT # 97035 (18x at $40.95/ea.); $224.64 for CPT # 97110 (4x at $56.16/ea.).
26. The Defendant failed to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician to dispute the above reasonable, related and necessary medical services and expenses.
27. As evidenced by the affidavit testimony of Jose Fuentes, and the deposition testimony of the adjuster, the Plaintiff timely submitted the above itemized bills (minus $816.00) in compliance with Florida Statutes § 627.736 to UNITED AUTOMOBILE along with the medical records, HCFA billing forms and assignment of benefits, and otherwise complied with all conditions precedent.
ISSUES OF LAW
28. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
29. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
30. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes § 627.736(7).
31. The Defendant has failed to establish that it had reasonable proof that it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter as the treating physicians stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding medical expenses remain due and owing plus interest from 30 days after receipt of each bill up to the present.
32. The recent appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) further supports the Plaintiff’s position for a Summary Judgment. In Cabello, the injured insured obtained treatment from the appellee-plaintiff who submitted claims to United Automobile. The trial court granted summary judgment in favor of the plaintiff on the issues of countersignature and whether the treatment was reasonable, related and necessary. The plaintiff submitted the affidavit of the treating physician to establish the benefits sought were reasonable, related and necessary. United Automobile submitted a letter from a claims adjuster stating the IME physician felt the treatment was not reasonable, related or necessary. The appellate court affirmed the entry of summary judgment and stated, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.”
33. Also, United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position. In Mendoza, the insured sustained injuries in an automobile accident on March 25, 2001. Thereafter he obtained treatment from various providers who submitted claims to United Automobile. The plaintiff sued to recover the PIP benefits and moved for summary judgment. The plaintiff filed an affidavit of a medical doctor who concluded treatment provided to the insured was reasonable, related and necessary to injuries sustained as a result of the subject accident. The trial court granted summary judgment in favor of the plaintiff.
34. The defendant appealed claiming the trial court abused its discretion in granting summary judgment. The appellate court affirmed the entry of summary judgment finding once the plaintiff successfully met its burden of establishing the non-existence of an issue of material fact, the burden switched to the defendant to demonstrate the existence of such an issue. The appellate court determined the defendant failed to meet its burden. The defendant did not file an affidavit or any other countervailing evidence to refute the medical treatments as being reasonable, related and necessary. The appellate court also found the deposition testimony of the defendant’s adjuster concerning the IME physician’s report failed to create a genuine issue of material fact.
35. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992). In Williamson, the plaintiffs challenged a final judgment in favor of the defendant insurance company in a personal injury action. The issue on appeal dealt with whether the trial court erred in denying the plaintiffs’ motion for a directed verdict on the issue of permanent injury. The injured plaintiff stated at trial he sustained a back injury several years prior to the subject automobile accident. Those injuries resolved shortly after the injury, but resurfaced following the subject crash. The plaintiffs offered testimony of three physicians on the issue of permanency of the plaintiff’s injuries and that these injuries resulted from the subject accident. The defendant presented two physicians who failed to refute the plaintiffs’ experts’ findings. The trial court denied the plaintiffs’ motion for directed verdict on the issue of permanency and the jury found the plaintiff did not sustain a permanent injury. A motion for retrial was denied.
36. The appellate court’s opinion discussed the standard for surviving a motion for directed verdict when faced with uncontroverted medical testimony. The appellate court stated a party opposing a motion for directed verdict must come forward with either countervailing evidence of the permanency issue or must severely impeach the proponent’s expert. The court further determined a jury is not free to reject the uncontroverted medical testimony indicating a permanent injury. Vega v. Travelers Indemnity Co.,520 So.2d 73 (Fla. 3d DCA 1988).
37. The Defendant has no basis under its contract or §627.736(4) or (7) to establish that it is not responsible for the medical expenses in the amount of $2,382.56.
38. The Defendant failed to establish the subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
39. Because there do not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Gloria Garcia, and submitted to UNITED AUTOMOBILE by the subject provider, CICERO ORTHO-MED CENTER, and the Defendant’s failure to pay the Plaintiff’s medical bills in the amount of $2,382.56 at full 80% pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
40. The Plaintiff complied with all conditions precedent prior to instituting this lawsuit, and is entitled to judgment as a matter of law regarding payment of the subject bills at 80% minus the deductible plus interest from 30 days after receipt of each bill up to and including the present.
41. The Plaintiff is entitled to Summary Judgment in the amount of $2,382.56 plus statutory interest from 30 days after receipt of all medical expenses until paid.
42. The only issue remaining is the reasonableness of the subject charges.
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