12 Fla. L. Weekly Supp. 480a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Insurer’s affidavit with unauthenticated paper independent medical examination report attached is stricken because IME report is inadmissible evidence — Obtaining paper IME report over one year after receipt of bills, long after denial or refusal of payment and after medical provider filed suit for breach of contract to pay PIP benefits, is not in compliance with statutory requirement to obtain medical report stating treatment is not reasonable, related or necessary as condition precedent to withdrawing or refusing payment — Fact that HCFA form submitted to insurer sets forth amount greater than MRI fee schedule does not provide defense to payment — Final summary judgment is entered in favor of provider
OPEN MRI OF MIAMI-DADE, LTD., (a/s/o Christine Tavarez), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 03-27498 SP 23 02. March 4, 2005. Caryn Canner Schwartz, Judge. Counsel: Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami, for Plaintiff. Sebastian Lissa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court on February 16, 2005 on the Plaintiff’s Motion for Final Summary Judgment, after hearing argument of the parties and being fully advised of the premises thereof, the Court finds as follows:
1. That the insured Christine Tavarez was involved in an automobile accident on June 9, 2003.
2. On the date of said accident the Defendant insured Christine Tavarez for PIP insurance benefits.
3. On July 3, 2003 the Plaintiff rendered MRI services to Christine Tavarez. That the Plaintiff received from Christine Tavarez an assignment of benefits.
4. Upon the sworn affidavit of Dr. George Wittenmeyer, D.C. the Court finds that the MRI was requested by Dr. Wittenmeyer, D.C. and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Christine Tavarez.
5. Upon receiving the bill from the Plaintiff, the Defendant failed to comply with the statutory requirements of Section 627.736(7), Fla. Stat., which imposes upon an insurer a burden of obtaining a valid report stating that the medical services was not reasonable, related or necessary. See United Automobile Insurance Company v. Julio Cesar Mendoza, 11 Fla. L. Weekly Supp. 299a, Dade Court Circuit Court Appellate Div., wherein the Court reaffirmed that under Section 627.736(7)(a) a medical report stating that the treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment. See also United Automobile Insurance Company v. Neurology Association Group Two, Inc. (a/a/o Nicholas Cabello), 11 Fla. L. Weekly Supp. 204b, Dade County Circuit Court Appellate Division; See Also United Automobile Insurance Company v. Professional Medical Group (a/a/o Sol Angel Hurtado), Dade County Circuit Court Appellate Division, opinion dated August 3, 2004 [11 Fla. L. Weekly Supp. 877a].
6. In adjusting the claim of the insured, the Defendant had the insured examined by Dr. Neil Fleischer, D.C., on July 28, 2003 and an orthopedic surgeon on August 7, 2003. Despite the fact that each exam occurred after the date that the Plaintiff provided the services to the insured, neither report provided that the MRI services were not reasonable, related or necessary. Thereafter, the Defendant determined that benefits for chiropractic treatment were cut-off as of August 13, 2003.
7. As of the filing of the above lawsuit, the Defendant was not in possession of a valid report asserting that the MRI services were not reasonable, related or necessary. In opposition to the motion for summary judgment the Defendant filed the affidavit of Dr. Marvin Merritt, D.C., who at the request of the Defendant after the service of the lawsuit, performed a paper peer review of the medical records and issued a report received by the Defendant on February 16, 2004 asserting that the MRI services were not reasonable, related or necessary. Attached to the affidavit filed by the Defendant is the unauthenticated paper IME report.
The affidavit is hereby stricken from the record based upon the fact that the paper IME report is inadmissible evidence. McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA 2000). The affidavit standing alone without the report contains mere conclusions and otherwise fails to create an issue of fact.
Moreover, the Court finds that the obtaining of a paper IME well over a year after receipt of the medical bills, long after the denial or refusal of payment, and after the filing of the above referenced lawsuit for breach of contract to pay PIP benefits, is not in compliance with the requirements of Section 627.736(7), Fla. Stat.
6. That Plaintiff’s charges are payable at the MRI fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat., for CPT codes 2148 and 72141. Based on the uncontroverted evidence that Plaintiff is an accredited MRI facility, the Plaintiff is entitled to 200% of 2001 Medicare Part B.
The Court finds that the fact that the HCFA form submitted to the Defendant sets forth an amount greater than the fee schedule does not provide a defense to payment.
7. That Summary Judgment in favor of the Plaintiff is granted as to each of the affirmative defenses raised in the Defendant’s answer.
The Court finding that there remains no issue of material fact to be resolved in this matter, based upon the foregoing it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is Granted.
IT IS HEREBY ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, OPEN MRI OF MIAMI-DADE, LTD. (as assignee of Christine Tavarez), of 19082 N.E. 29th Avenue, Aventura, Florida 33180, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $2,062.64, as outstanding PIP benefits, and the amount of $217.17 (549 days from July 18, 2003 through February 16, 2005) as statutory interest, for a total judgment against the Defendant in the amount of $2,279.81 which amount shall bear interest at the rate of 7% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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