12 Fla. L. Weekly Supp. 776a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Peer review physician’s affidavit regarding treatment rendered does not create genuine factual issue as to whether medical treatment for which insurer denied coverage was reasonable, related and medically necessary where affidavit was not supported by physical examination and does not state physician’s opinion with regard to propriety of treatment or proper foundation for admissibility under an exception to hearsay rule, and was not dated prior to denial of payment — No merit to argument that requirement that insurer obtain valid report by physician stating treatment is not reasonable, related and necessary prior to withdrawal of benefits applies only to benefits withdrawn, not those withheld — Report of physician who conducted independent medical examination, which is accompanied by authenticating affidavit, creates factual issue as to whether expenses rendered after IME date were reasonable, related and necessary — Motion for summary judgment granted in part
PHYSICIANS FIRST MEDICAL INC., A/A/O JAIME TORO, Plaintiff, vs. GRANADA INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-6675 SP 26 (02). May 9, 2005. Bronwyn C. Miller, Judge. Counsel: Paul K. Schrier and David S. Kuczenski, The Law Offices of Paul K. Schrier, P.A., Miami, for Plaintiff. Carlos Diaz-Padron, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART
THIS CAUSE, having come before the Court upon Plaintiff’s Motion for Summary Judgment and the court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby grants Plaintiff’s motion in part and denies Plaintiff’s motion in part on the following grounds:
Background:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on May 2, 2002. Following the accident, Jaime Toro sought treatment from Plaintiff, PHYSICIAN’S FIRST MEDICAL INCORPORATED. Plaintiff accepted an assignment of PIP benefits from Toro in exchange for providing medical services. Defendant does not dispute Plaintiff’s standing.
2. There is no dispute between the parties that at all times material to this action, Toro was covered by a policy of automobile insurance issued by Defendant, GRANADA INSURANCE COMPANY (hereinafter “GRANADA”).
3. Plaintiff submitted invoices to GRANADA for medical services rendered from May 3, 2002 through May 30, 2002 in the amount of $3,260.00. GRANADA failed to pay the bills and GRANADA offered Plaintiff no explanation for non-payment, as is evidenced by the deposition of Lizbeth Velazquez, Claims Adjuster for GRANADA. Plaintiff submitted a pre-suit demand letter on July 8, 2002.
4. Plaintiff submitted invoices to GRANADA for medical services rendered from June 4, 2002 through June 27, 2002 in the amount of $3,565.00. Again, GRANADA failed to pay the bills and GRANADA offered Plaintiff no explanation for non-payment, as is evidenced by the deposition of Lizbeth Velazquez, Claims Adjuster for GRANADA. Plaintiff submitted a pre-suit demand letter on August 31, 2002.
5. Plaintiff submitted invoices to GRANADA, for medical services rendered from July 2, 2002 through July 29, 2002 in the amount of $3,610.00. Again, GRANADA failed to pay the bills. However, GRANADA scheduled Toro for an Independent Medical Examination on July 12, 2002. Toro was examined at that time by Sulim A. Krimshtein, M.D. Dr. Krimshtein subsequently issued a report stating the following: “It is my opinion, based on the available information and today’s evaluation, that the examinee’s complaints are consistent with the history of injury and his injuries can be causally related to the motor vehicle accident of May 2, 2002. Based on the examinee’s history and my examination findings, it is my professional opinion that no future medical treatment or physical therapy is reasonable, related, or necessary as it relates to the motor vehicle accident of May 2, 2002.” Plaintiff submitted a pre-suit demand letter on August 31, 2002.
6. Plaintiff filed suit and now moves for summary judgment on whether the subject medical services are reasonable, related, and necessary.
7. In support of Plaintiff’s motion, Plaintiff has submitted the sworn testimony of Carlos Munoz, M.D., stating that the services provided to Toro were reasonable, medically necessary, and related to the accident of May 2, 2005. Further, Plaintiff has submitted the sworn testimony of the President of Physician’s First Medical, Inc., Gina Quiroga, stating that the charges for the CPT codes employed were reasonable.
8. In response, GRANADA argues that a disputed issue of material fact exists as to whether the treatment was reasonable, related, or medically necessary. To support this argument, GRANADA relies upon a “peer review” report and accompanying affidavit prepared by Dr. Peter Millheiser. Dr. Millheiser’s report reflects a date of September 5, 2002 and his affidavit reflects a date of March 28, 2005. Further, GRANADA relies upon the report of Dr. Krimshtein.
Conclusions of Law
Summary Judgment Standard
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Plaintiff has met this burden through the submission of the affidavit of Toro’s treating physician. Accordingly, the burden shifts to GRANADA to present competent evidence demonstrating a genuine issue of material fact. See, Holl, 191 So. 2d at 43 (“The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”).
Dr. Millheiser’s Affidavit and Peer Review Report
Plaintiff argues that the affidavit of Dr. Peter Millheiser and the attached peer review are not competent evidence that give rise to a genuine issue of material fact. Pursuant to Fla.R.Civ.P. 1.510(c), an affidavit is conclusory in nature where it does not “set forth such facts as would be admissible in evidence . . .” It is well-settled in Florida case law that a conclusory affidavit in support of an opposition to a motion for summary judgment is insufficient. Page v. Staley, 226 So. 2d 129, 130 (Fla. 4th DCA 1969) (“Plaintiff’s affidavit did not meet the test of the rule that. . . [it] did not set forth facts that would be admissible in evidence”); Gruber v. Mount Sinai Hospital, 487 So. 2d 76 (Fla. 3d DCA 1986); North Broward Hospital District v. Royster, 544 So. 2d 1131 (Fla. 4th DCA 1989). This court agrees.
Dr. Millheiser’s affidavit does not state his opinion or the basis of his opinion with regard to the propriety of the treatment services. Further, the affidavit fails to state a proper foundation for admissibility of his report under an exception to the hearsay rule. It only purports to authenticate his report, which is a document created for the sole purpose of litigation, thus is inadmissible as a business record pursuant to 90.803(6), Florida Statutes. See, McElroy v. Perry, 753 So. 2d 121, 126-27 (Fla. 2d DCA 2000) (“Dr. Phillips was hired by Perry’s insurance carrier to examine her for the purpose of assisting the carrier in its determination of whether the treatment Perry was obtaining was “reasonable, related, or necessary” pursuant to [S]ection 627.736(7). Thus, the carrier’s motivation for requesting the examination was a financial one that placed the physician in the same adversarial posture in relation to the insured as that of a physician hired by an opposing party to perform an IME for the purpose of litigation.”).
Legal Standard for Insurer Withdrawing or Withholding Payment from an Insured Pursuant to Florida Statutes 627.736(7)(a)
Florida Statutes 627.736(7)(a) sets forth the procedural requirements with which an insurer must comply prior to withdrawing payment for treatment rendered based upon challenges to the reasonableness, relatedness, or necessity of such treatment:
“An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. 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.” 627.736(7)(a) Florida Statutes.
This provision has been interpreted by the courts on numerous occasions. The Court is bound by the Third District’s holding in United Automobile Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999). In Viles, an insurance company failed to produce a report signed by a physician dated prior to the denial of payments to the insured stating that the treatment was not reasonable, related, or necessary. The Third District Court of Appeal held that Florida Statutes 627.736(7)(a) applied to such a scenario and concluded that the insurer was required to obtain a physician’s report stating that the treatment was not reasonable, related, or necessary prior to refusing to pay the additional medical bills.
The Eleventh Circuit has interpreted this statutory provision consistent with Viles, repeatedly. United Auto v. Mendoza, 11 Fla. L. Weekly Supp. 299a (Fla. 11th Cir. App. 2004) (“we adhere to the view that under Florida Statutes 627.736(7)(a) a medical report stating the treatment was not reasonable, related or necessary is a condition precedent to withdrawing payments of PIP benefits”); United Automobile Insurance Company v. Professional Medical Group, as assignee of Sol Angel Hurtado, 11 Fla. L. Weekly Supp. 877a (Fla. 11th Jud. Cir. App. 2004) (“Although not dispositive, we adhere to the view that under Florida Statute 627.736(7)(a) a medical report stating that treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment of PIP benefits”); United Automobile v. Michael Rose, M.D., as assignee of Juan Velazquez, 11 Fla. L. Weekly Supp. 1042a (Fla. 11th Jud. Cir. App. 2004) (“[T]o the extent United Auto was denying payment of the bill on the ground that the treatment was unreasonable or unnecessary or any ground other that the charges were too high, United Auto would have to submit a report from a physician pursuant to Florida Statute, Section 627.736(7)”).
In the instant case, GRANADA failed to produce a valid report from a physician, dated prior to the date GRANADA denied payment of Plaintiff’s first two bills, stating that the physician had reviewed the treatment records and/or examined Toro and determined that the treatment was not reasonable, related and necessary.
GRANADA argues that Viles has been overruled by the Florida Supreme Court in United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82 (Fla. 2001). This Court disagrees. Nowhere in the court’s discussion in Rodriguez did the court discuss the propriety of Viles. Rodriguez v. United Automobile Insurance Company concerns Florida Statute 627.736(4)(b) and the requirement that the insurer have reasonable proof it was not responsible for payments before an insurer may argue it does not have to pay interest on an overdue payment. The precise issue addressed in Rodriguez was articulated by the Florida Supreme Court as follows: “If payment for a PIP claim is “overdue” under section 627.736, Florida Statutes (1997), are the penalties set forth in the Florida Statutes the only penalties that may be levied against the insurer or is the insurer forever barred from contesting the claim?” Id. at 84-85. The Florida Supreme Court found that once liability is established, the only penalties assessed under 627.736 are attorney’s fees and late interest; the statute does not bar the insurer from contesting the claim where it fails to pay the insured’s claim within thirty days. Id. Thus, Rodriguez does not overrule Viles either explicitly or implicitly. Further, Rodriguez stands for the proposition that “reasonable proof” the insurer was not responsible for payments is not limited to a medical report under 627.736(7). Never did the court say that the insurer may deny an insured’s benefits on the basis of a peer review report not in compliance with 627.736(7).
In addition to being untimely when considered in conjunction with the withholding of benefits, this court finds that Dr. Millheiser’s report is not a valid report as defined by Section 627.736(7) Florida Statutes. Section 627.736(7)(a) states: “An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, and necessary.” A valid report is defined under 627.736(7) Florida Statutes (2001) as “one that is prepared and signed by the physician examining the injured person or reviewing 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.” The use of the term “and” appears to indicate the legislature’s intent that a records review must be supported by a physical examination.
“Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2002); Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000). The term “and” clarifies the legislature’s intent that a records review must be supported by a physical examination. The senate staff analysis report for senate bill 1092 further clarifies the legislative intent in amending Section 627.736(7): “[T]o help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related, or necessary.” Senate Staff Analysis and Economic Impact Statement, dated March 26, 2001, Senate Bill 1092. “Statutes should not be interpreted in a manner that would deem the legislative action useless.” U.S. Security Insurance Co. v. Cahuasqui, 760 So. 2d 1101, 1104 (Fla. 3d DCA 2000). “The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent.” Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146, 1150 (Fla. 2000). A plain reading of the statute, in conjunction with the Senate Staff Analysis and Economic Impact Statement, indicates that Dr. Millheiser’s report is not a valid report, as it is not factually supported by a physical examination of Toro.
Finally, GRANADA argues that Section 627.736(7) applies only to benefits that are “withdrawn” by the insured, not those that are “withheld.” To accept such an interpretation of the statute would lead to an absurd or ridiculous result. Insurers would be encouraged to withhold payment under all circumstances so as to circumvent the intent of the legislature in setting a procedural requirement. It is well-settled that statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended, by the legislature. Drury v. Harding, 461 So. 2d 104 (Fla. 1984).
In addition to the report of Dr. Millheiser, the defense filed the report and affidavit of Dr. Krimshtein. This court finds that Dr. Krimshtein’s report is distinguishable from Dr. Millheiser’s report. Dr. Krimshtein’s report is not a “peer review” report, but rather a report containing Dr. Krimshtein’s observations of Toro during an independent medical examination. Dr. Krimshtein’s report is accompanied by an authenticating affidavit. Furthermore, Dr. Krimshtein’s report was generated prior to the rejection of benefits relating to medical services rendered after July 12, 2005. Thus, Dr. Krimshtein’s report and affidavit creates a genuine issue of material fact relating to whether medical services rendered after July 12, 2002 were reasonable, related, and medically necessary.
Plaintiff’s Motion for Summary Judgment as to whether Toro’s medical expenses between May 3, 2002 and May 30, 2002 are reasonable, related, and medically necessary is GRANTED.
Plaintiff’s Motion for Summary Judgment as to whether Toro’s medical expenses between June 4 and June 27 are reasonable, related, and medically necessary is GRANTED.
Plaintiff’s Motion for Summary Judgment as to whether Toro’s medical expenses between July 2, 2002 and July 29, 2002 are reasonable, related, and medically necessary is GRANTED in part and DENIED in part. The Court finds that those expenses incurred between July 2, 2002 and July 13, 2002 are reasonable, related, and necessary and therefore summary judgment is GRANTED. The Court finds that a genuine issue of material fact exists as to whether those expenses incurred between July 14, 2002 and July 29, 2002 and therefore summary judgment is DENIED.
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