12 Fla. L. Weekly Supp. 590a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Unlicensed medical provider — Defense that medical provider’s treatment was unlawful for failure to have required medical license fails where provider’s affidavits were sufficient to shift burden of going forward on defense to insurer, and insurer proffered nothing — Peer review report concluding that MRI was not necessary is not valid report required prior to withdrawing treatment authorization where peer review physician did not examine insured and report fails to mention report of physician who conducted independent medical examination and rendered no opinion on necessity of MRI — 2001 amendment to section 627.736(7) evinces legislative intent to end practice of peer review physicians opining merely on basis of records review by requiring that such conclusions be supported by physical examination — Summary judgment granted in favor of provider
PEMBROKE PINES MRI, INC. (R. Bloomfield), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-010197-COCE-50. March 21, 2005. Peter B. Skolnik, Judge. Counsel: Charles J. Kane, Kane & Kane, Boca Raton. Darrel T. King, Coral Gables.
Summary Final Judgment for Plaintiff
The Court heard Plaintiff’s Motion for Partial Summary Judgment on March 2, 2005. Counsel for the parties was present.
Undisputed facts
Plaintiff is an independent diagnostic imaging facility that provided MRI service to Defendant’s covered insured in October 2002. The claim was timely submitted and received by the Defendant on November 19, 2002. On December 27, 2002, a physician selected by the Defendant, Dr. Bruce Rosenkranz, D.C., who opined that no further chiropractic care was necessary, examined the subject patient. Dr. Rosenkranz did note that an MRI had been done but rendered no opinion on the necessity of the MRI. On March 20, 2003, Dr. Neil Fleischer, D.C. issued a records review report that does not mention the physical examination of December 27, 2002 but does opine that the subject MRI services were not necessary.
The Plaintiff’s motion is supported by affidavits of a representative of the Plaintiff, the treating physician, and the deposition of the Defendant’s representative. Two days before the hearing the Defendant filed an affidavit of Neil Fleischer, D.C. purporting to attach his peer review report. Review of that affidavit shows the report was not attached. On the same day the Defendant gave notice of filing the report of March 20, 2003.Questions presented
(1) Did the Plaintiff demonstrate a prima facie case thereby shifting the burden of showing a scintilla of contrary evidence?
(2) Did the Defendant demonstrate that there is a scintilla of evidence demonstrating a genuine, material question of fact?
Findings and Conclusions of Law
While the Plaintiff’s motion was in artfully labeled as a motion for partial summary judgment, the demand for relief contained therein sought a final judgment. The Court finds the label is not controlling and that it did not mislead the Defendant.
The affidavits and other record evidence submitted by the Plaintiff was sufficient to establish a prima facie case thereby shifting the burden of going forward to the Defendant. Landers v. Milton, 370So.2d 368 (Fla. 1979).
The Defendant asserted two affirmative defenses: (1) that Dr. Fleischer’s peer review report was reasonable proof of a defense and (2) that the Plaintiff’s treatment was unlawful for failure to have a required license. The affidavits of Rosina Kizer were sufficient to shift the burden of going forward to Defendant on the license defense and the Defendant proffered nothing. The license defense fails. Landers v. Milton, id. A review of Dr. Fleischer’s report demonstrates it is not a “valid report” as required by F.S. §627.736(7) as it fails to mention Dr. Rosenkranz’s examination or report (that was also silent as to the necessity of the subject MRI).
The Defendant principally relies on United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001) that addressed the right of an insurer to defend where it failed to obtain a required medical report before withdrawing treatment authorization applying the former version of subsection (7), Fla. Stat. §627.736. The Supreme Court ruled that failure to obtain a medical report within the requisite 30 days provided in subsection (4)(b) merely rendered the claim overdue, but did not preclude defense by the insurer. Defendant asserts that the report it obtained after the 30 days had elapsed is its basis to contest necessity. In 2001 the Florida legislature addressed the use of peer review reports by insurers by requiring that the report be “valid”:
A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.1
Dr. Fleischer’s report is not a “valid report” within the meaning of F.S. §627.736(7). Since Dr. Fleischer did not examine the subject patient and there is no support for his report found in Dr. Rosenkranz’s report or examination, the Defendant has failed to submit a scintilla of admissible evidence as Dr. Fleischer’s records review fails to meet the validity required under the law as amended. Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law. Rodriguez at 85. The plain meaning of the 2001 change to subsection evinces legislative intent to end the practice of using peer review physicians to opine merely on the review of records requiring that such conclusions be supported by physical examination of the patient. It is undisputed that Dr. Rosenkranz’s examination and report lends no support to the report or possible testimony of Dr. Fleischer (as there is nothing in Rosenkranz’s report or Fleischer’s report or affidavit to show any such support). Hence, the Defendant has failed to carry its burden and Plaintiff is entitled to summary judgment. Landers v. Milton, 370 So.2d 368 (Fla. 1979).
Accordingly, summary final judgment is granted to the Plaintiff in the principal sum of $986.38 plus interest from November 19, 2002 to the date hereof. Interest is calculated for the balance of 2002 at 9% per annum, for 2003 at 6% per annum and thereafter at 7% per annum, making a total of $153.59 for interest to the date of this judgment, making a total sum of $1,139.97, for which let execution issue. Plaintiff is also awarded entitlement to reasonable attorneys fees and costs and jurisdiction is reserved to determine it.
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