12 Fla. L. Weekly Supp. 870a
Insurance — Personal injury protection — Medical expenses — Magnetic resonance imaging — Where testimony of medical provider that MRI was related and medically necessary was unrefuted by any contradictory medical evidence and not severely impeached on cross-examination, verdict for insurer is against manifest weight of evidence — Further, fact that insurer failed to submit any report by physician licensed under same chapter as provider stating MRI was not reasonable, related or necessary precludes insurer from denying payment — Notice of loss — Timeliness — Record fails to demonstrate that insurer was prejudiced by 68-day delay in receiving notice of accident where insurer set independent medical examination for one month after receipt of notice and set examination under oath nearly four months after receipt of notice, and insurer did not attempt to use surveillance to investigate claim, although insured was still undergoing treatment after notice of loss was provided, or attempt peer review — Judgment notwithstanding verdict is entered on issues of relatedness and medical necessity and verdict is directed on late notice issue that jury never reached
WEST GABLES OPEN MRI, INC., a/a/o NELLY LADINO, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 01-22799-SP-23 (02). June 10, 2005. Mark King Leban, Judge. Counsel: Paul K. Schrier, P.A., Miami. David S. Kuczenski, Miami. Neil Gonzalez, Miami. Russell Kolodziej, Coral Gables.
ORDER GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT OR MOTION FOR JUDGMENT NOT WITH STANDING THE VERDICT AND DENYING PLAINTIFF’S MOTION FOR NEW TRIAL
THIS CAUSE having come before the Court on Plaintiff’s Motion for Directed Verdict or Motion for Judgment Notwithstanding the Verdict and Motion for New Trial, and the Court having presided over the trial of this cause, considered the pleadings, and being otherwise duly advised in the premises, hereby makes the following findings of fact and conclusions of law.
STATEMENT OF FACTS
United Automobile Insurance Company insured Nelly Ladino for personal injury protection under an insurance policy that was in effect on March 31, 2001, when Ms. Ladino was involved in an automobile accident, sustaining injuries for which she sought treatment at plaintiff West Gables Open MRI, Inc. The sole bill at issue in this case involves an MRI conducted on Ms. Ladino on June 20, 2001. Defendant United Auto refused to pay for the MRI, and the plaintiff provider, as assignee of Ms. Ladino, filed suit against the defendant which came on for trial before the undersigned on December 6, 2004, resulting in a jury verdict for the defendant entered on December 7, 2004.1 At the conclusion of all the evidence, plaintiff moved for directed verdict, this Court reserved ruling, and the jury returned the aforesaid verdict for the defendant. Plaintiff has timely moved for directed verdict or for a judgment notwithstanding the verdict, or, alternatively, for a new trial.
Two issues arose during the trial which are addressed in this order: (1) whether the verdict for the defendant is against the manifest weight of the evidence where the defendant presented no medical testimony to refute the medical expert presented by the plaintiff,2 and (2) whether the insured, Nelly Ladino, failed to report the loss to the defendant insurer as soon as practicable as required by the policy of insurance. The sole medical testimony was presented by plaintiff’s expert, the treating physician, Dr. Maria Quintero.3 Dr. Quintero, a chiropractor, first saw Ms. Ladino on April 23, 2001, and took her medical history, which included the fact that Ms. Ladino was involved in the subject automobile accident on March 31, 2001. Dr. Quintero owns the plaintiff clinic, which sees 50 to 70 patients a week, the majority whom are automobile accident patients. The plaintiff is both a business and a chiropractic clinic and Dr. Quintero expects to be paid. Asked by defense counsel why Ms. Ladino waited some 23 days to come to Dr. Quintero, the doctor explained that Ms. Ladino had attempted to go to other clinics but could not be accepted for treatment. From Ms. Ladino’s account and history of the accident, Dr. Quintero learned that she was not taken by ambulance to any hospital after the accident, but not all people involved in automobile accidents go to a hospital as a result of the accident. In addition, Dr. Quintero learned that Ms. Ladino had not been involved in any prior automobile accident or suffered prior injuries. As time passes after an initial injury, the injury becomes “subacute.” Ms. Ladino complained of lower back pain radiating to her leg, amongst other symptoms. Dr. Quintero ordered x-rays, however, x-rays would not reveal soft tissue, nerve root, or damage to ligaments and tendons; for that reason, and based upon the radiating leg pain, Dr. Quintero ordered the subject MRI diagnostic test in order to reveal underlying problems. This is in accordance with medical protocol and Dr. Quintero concluded within a reasonable degree of medical certainty that the MRI was both medically necessary and related to the March 31, 2001 accident. Ms. Ladino did not relate any prior accidents previous to either her initial office visit to the plaintiff’s clinic on April 23, 2001, or the date of the accident on March 31, 2001. Dr. Quintero felt that underlying problems existed based upon Ms. Ladino’s complaints and the MRI demonstrated this to be true.
While the defense undertook an extensive cross-examination of Dr. Quintero, this Court concludes that it in no manner severely impeached Dr. Quintero’s direct examination testimony that the diagnostic MRI test ordered for Ms. Ladino was related and medically necessary.4 Nevertheless, the Court will explicate some of the highlights of that cross examination herein. Pressed about the fact that there was a three week delay between the accident and Dr. Quintero’s initial examination of Ms. Ladino, Dr. Quintero explained that Ms. Ladino had tried to seek treatment from other clinics in the interim but could not get accepted for such treatment. Dr. Quintero treated Ms. Ladino for a period from April 23, 2001, thru August 22, 2001, ordering such modalities as hot packs, physical therapy, and other treatment modalities not the subject of the present lawsuit. Over the four months of treatment, Ms. Ladino experienced good and bad days, normal in the treatment process, thus Dr. Quintero ordered continued therapy. Over that period of treatment, some symptoms did resolve during Dr. Quintero’s care, however, other symptoms did not improve, a usual situation where low back pain is involved. Dr. Quintero conducted range of motion studies, and denied that the results showed normal range of motion; there were positive findings (i.e., limited range of motion) in the neck and lumbar areas.
While Ms. Ladino’s complaints constituted subjective findings, Dr. Quintero found physical corroboration. In addition, Ms. Ladino had not reported any prior accident or injury to Dr. Quintero. Asked why she ordered more treatment and referred Ms. Ladino to an orthopedic specialist if Ms. Ladino showed no signs of improvement, Dr. Quintero explained that an orthopedic doctor could corroborate and determine how best to proceed.
On redirect examination, Dr. Quintero explained that she does not give up on patients based upon their not improving during treatment. In the past medical history portion of her report, Dr. Quintero did include the fact that Ms. Ladino advised she had no prior accident or injuries. Ms. Ladino’s range of motion in the cervical area, also noted in her report, was not normal. It is normal for a patient to still have pain because of a disk problem and this is considered a permanent injury. The fact that Ms. Ladino had degenerative changes due to her age of 57 years, would not necessarily cause the pain that Ms. Ladino experienced after the accident. Degenerative changes do not preclude people from getting hurt in accidents. The MRI ordered in this case showed an annular bulge in the intervertebral disks at L4-L5. Dr. Quintero concluded that if Ms. Ladino had no pain prior to the accident, but did experience pain after the accident, the treatment and tests ordered would be related to the accident.
With respect to the late notice issue, Dr. Quintero testified that she notified United Auto of her initiation of treatment by letter dated May 15, 2001. See plaintiff’s Exhibit 2. Dr. Quintero has a certified mail number for this May 15, 2001, letter, but not the signed green card. Simply because she does not have the green card does not mean that the May 15th letter does not exist.5
The defendant presented the testimony of its litigation adjuster, Tracey Chase, whose testimony will be set forth herein solely with respect to the “late notice” issue.6 United Auto first received notice of the accident on June 7, 2001, and received the first set of bills on June 29, 2001, for dates of service between May 30, and June 20, 2001. United Auto determined not to pay for the MRI bill because of late report, in that United did not know if the injuries were related to the accident. The policy of insurance in this case requires notification “as soon as practicable,” and further requires that the insured “notify promptly” of an accident. See defendant’s Exhibit A. United Auto was prejudiced by the late notice because it was unable to conduct an independent medical examination (IME) at the start of treatment in order to determine if Ms. Ladino’s injuries arose from a pre-existing injury. The IME was set for July 6, 2001, during the time that Ms. Ladino was still treating. A notification for Ms. Ladino to attend an examination under oath (EUO) was sent on June 19, 2001, setting alternative dates of September 26, 2001, and October 2, 2001.7
Ms. Chase denied ever seeing Dr. Quintero’s May 15, 2001, initiation of treatment letter. Nothing in Ms. Chase’s file showed that Ms. Ladino’s injuries were related to anything other than the March 31, 2001, accident, yet United Auto did not pay because Ms. Chase concluded that Ms. Ladino’s injuries were not related to the accident due to the “time gap” between the March 31st accident and the start of treatment on April 23, 2001.
United Auto utilized such investigative tools as an IME and an EUO, but did not undertake surveillance because it is better to do so at the beginning of a claim rather than later, although Ms. Chase acknowledged that Ms. Ladino was still treating at the plaintiff clinic when United Auto received notice of the accident on June 7, 2001. Surveillance could have been conducted while Ms. Ladino was still undergoing treatment, but no surveillance team was sent out.
Another investigative tool, a peer review, was not undertaken. Ms. Chase received the accident report, conducted a stateline investigation, had all provider names, and acknowledged that no witness had died between the date of the accident and the June 7, 2001, report date, and nothing had been destroyed.
At the close of all of the evidence, and during argument on the plaintiff’s motion for directed verdict, the defense admitted that it had not severely impeached Dr. Quintero but argued instead that its entire basis for opposing a directed verdict was the “gap” between the accident and Ms. Ladino’s initiation of treatment with Dr. Quintero. On the late notice issue, the defense admitted that what it could have done to better investigate this claim had it received earlier notice was speculative. This Court reserved ruling, allowing the case to proceed to verdict, and the jury returned its verdict for the defendant on the issue of whether the MRI bill was related to the accident and medically necessary, not reaching the late notice issue. See note 1, supra.
CONCLUSIONS OF LAW
Manifest Weight of the Evidence Regarding Relatedness and Medical Necessity for the MRI
As the factual restitution above clearly demonstrates, the plaintiff’s expert medical testimony from Dr. Maria Quintero that the sole medical bill involved in this case was both related to the accident and medically necessary was unrefuted by any contradictory medical evidence presented by the defendant and, by the defendant’s own admission, not severely impeached during cross examination of Dr. Quintero or otherwise.8 United Auto presented no contradictory medical testimony from any physician, and submitted no report from a physician licensed under the same licensing chapter as Dr. Quintero. While an IME was conducted, United Auto chose not to submit the IME report or any testimony from the IME doctor, Neil Fleischer. See note 3, supra. Nor was any peer review introduced nor testimony by any peer review doctor. The jury’s inexplicable verdict for the defendant thus presents the classic example of a verdict that is against the manifest weight of the evidence, and this Court now grants the previously reserved motion for directed verdict by entering a judgment for the plaintiff notwithstanding the verdict.
This result is compelled by both statutory and controlling decisional law. Section 627.736(7)(a), Florida Statutes, provides in pertinent part:
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 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.
Since there was no such report submitted by the defense, United Automobile is precluded by the statute from denying payment for the MRI in the case at bar.
Abundant and controlling case law also requires that the Court enter a judgment notwithstanding the jury’s verdict for the plaintiff. In Vega v. Travelers Indemnity Company, 520 So.2d 73 (Fla. 3d DCA), rev. denied, 531 So.2d 169 (Fla. 1988), plaintiffs sued under the PIP statute for, inter alia, medical expenses arising from their automobile accident, and the jury found for the defendant insurance company and awarded no damages. The plaintiffs appealed arguing that the judgment was against the manifest weight of the evidence. The Third District stated that it “was undisputed that, as a result of the accident, Mrs. Vega suffered a permanent partial disability.*** Travelers presented no testimony, expert or otherwise, in rebuttal.” 520 So.2d at 74-5. The identical operative facts appear in the case at bar. The Vega Court held:
Although a jury may award a lower amount of damages than that suggested by expert testimony, it may not totally ignore the only evidence presented on that issue. [Citations omitted]. A zero verdict in Florida will be upheld only in the face of conflicting evidence regarding whether the plaintiff was in fact injured. [Citations omitted]. . . . [T]he fact of Mrs. Vega’s permanent partial disability was uncontroverted. The jury could not reasonably have returned a zero verdict. See Short v. Ehrler, 510 So.2d 1110 (Fla 4th DCA 1987) (uncontroverted expert testimony warranted award of some damages); Valdez v. State Farm Mut. Auto. Ins. Co., 381 So.2d 743 (Fla. 3d DCA 1980); Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506 (Fla. 1st DCA 1978). Vesta, supra at 75 [emphasis added]
Also controlling in the case at bar is United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), where, as here, United Auto failed to submit a contradictory physician’s report or expert testimony to refute the plaintiff’s expert. The Third District held that United Auto “was required to first obtain a physician’s report before refusing to pay further medical bills. The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.”9 Id. at 320. The Court affirmed the trial judge’s judgment notwithstanding the jury’s verdict (there of a lower amount than that supported by the plaintiff’s uncontroverted medical evidence).
Yet another controlling Third District decision is Evans v. Montenegro, 728 So.2d 270 (Fla. 3d DCA) rev. denied, 741 So.2d 1135 (Fla. 1999), where the Court affirmed a directed verdict on the issue of permanent injury arising out of an automobile accident, observing that “there was no conflict in the expert testimony regarding whether the plaintiff sustained a permanent injury. . .”. Id. at 271. The Court expressly rejected the defendant’s argument that, although there was no direct evidence contradicting the plaintiff’s experts, “the jury was free to disregard such testimony. . .”. Id. The Third District stated the rule that controls such cases, including the case at bar, as follows:
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. Id.
Since “defendant neither severely impeached the plaintiff’s expert nor presented other conflicting evidence on the issue of permanency,” the trial court’s order directing a verdict for the plaintiff was affirmed. Again, the operative facts in Evans and in the case at bar are indistinguishable.
The Evans Court cited with approval the Fourth District’s decision in Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992), as well as the Second District’s decision in Holmes v. State Farm Mutual Automobile Insurance Company, 624 So.2d 824 (Fla. 2d DCA 1993), both applying the same rationale where the defendant insurers “presented no expert witnesses concerning the permanency of the. . . injury,” Homes, supra at 825, and “[t]he defense offered no expert testimony” to refute the plaintiff’s expert, Jarrell, supra at 70. The Jarrell court further observed that “a jury of lay persons cannot be credited with having the technical expertise to totally disregard an expert medical opinion.” Id.
Several other controlling decision compel a judgment notwithstanding the verdict in the case at bar. See Rose v. Dwin, 762 So.2d 532 (Fla. 4th DCA 2000) (trial court erred in not directing verdict where there was no evidence to refute the testimony of the plaintiff’s dentist); Williamson v. Superior Insurance Company, 746 So.2d 483 (Fla. 2d DCA 1999) (“when a plaintiff presents expert testimony to support a claim of permanent injury, the defense, in order to survive a motion for a directed verdict, must come forward with either countervailing evidence on the permanency issue or must severely impeach the proponents [sic] experts.”).10
Finally, this Court relies upon the Third District’s decision in Valdez v. State Farm Mutual Automobile Insurance Company, 381 So.2d 743 (Fla. 3d DCA 1980), holding that the insurer was “obligated to pay PIP benefits to the plaintiff Hector Valdez for reasonable medical and hospital expenses incurred. . . for diagnostic tests.” [Emphasis added]. Of course, the MRI test in the case at bar is precisely such a “diagnostic test” and, again, Dr. Quintero’s testimony as to its medical necessity and relatedness to the March 31, 2001, accident is unrefuted. See also Banyas v. American Mutual Fire Insurance Company, 359 So.2d 506 (Fla. 1st DCA 1978) (diagnostic test deemed both reasonable and necessary medical service to determine whether accident was the cause of chest pain immediately following the accident).
Based upon the above abundant and controlling authority, and the Court having previously reserved ruling on plaintiff’s motion for directed verdict at the close of all of the evidence, the Court now enters judgment notwithstanding the jury’s verdict and directs a verdict for the plaintiff in the amount of the MRI bill, $1,290.98. See note 2, supra.
Late Notice
The unchallenged expert testimony of the relatedness and medical necessity for the sole billing at issue in this case, namely, the diagnostic MRI test, cannot be viewed in isolation when analyzing what this Court finds to be but a mere “paper” issue of the purportedly late notice of the accident. United Auto’s litigation adjuster, Tracey Chase, attempted to detail the prejudice suffered by the insurer because of the at most two month and one week delay11 in notice: the IME and EUO might have been conducted earlier, and surveillance, not attempted here at all, might have been more effective if done at the outset of Ms. Ladino’s treatment. A fourth diagnostic tool, oft used by insurers to deny payment, a peer review, was also not utilized by United Auto. The Court will analyze each of these purportedly weakened or totally forgone investigative methods in order to assess whether the plaintiff met its burden to demonstrate a lack of prejudice to the defendant due to late notice of the accident.
Before a discussion of those tools, the Court will first set forth the controlling decisional law on “late notice” claims. In Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206, 209 (Fla. 1969), the Florida Supreme Court first adopted the rule that applies to late notice defenses as follows: “[T]he proper interpretation of the effect of prejudice in delayed notice cases [is] that while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer is not prejudiced thereby, then the insurer will not be relieved of liability merely by showing that notice was not given ‘as soon as practicable.’ ” Moreover, the Tiedtke Court held: “Mere speculation that prejudice may exist will not suffice when lack of prejudice is clearly demonstrated.” Id. Subsequently, in Bankers Insurance Company v. Macias, 475 So.2d 1216 (Fla. 1985), the Supreme Court adhered to the Tiedtke rule, observing that the “notice requirement enables the insurer to conduct a timely and adequate investigation of all circumstances surrounding an accident.” Id. at 1217. The Court provided the following further guidance in analyzing this issue:
If the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.***A notice of accident in most insurance policies is a condition precedent to a claim. It was so designated in the policy in this case. Such a condition can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance with the condition.***The burden should be on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured. This rule should apply to claims under a PIP policy just a well to claims under other policies. 475 So.2d at 1217-18. [Emphasis added].
See also Nationwide Mutual Fire Insurance Company v. Belville, 825 So.2d 999, 1003 (Fla. 4th DCA 2002) (“unless the carrier was prejudiced by the insured’s violation of the notice provision, the carrier could not avoid its duty to provide coverage for the expenses”), rev. denied, 845 So.2d 891 (Fla. 2003).
Returning to the facts in the case at bar, the policy of insurance here requires notification “as soon as practicable” and elsewhere requires that the insured “notified promptly” of an accident. See defendant’s Exhibit A. No further definition of these terms is specified. United Auto claimed that it was prejudiced by the 68 day delay in notice because it could not conduct its IME at the start of treatment in order to determine if Ms. Ladino’s injuries arose from a pre-existing injury. The IME was set for July 6, 2001, one month after United Auto received notice of the accident, during the time that Ms. Ladino was still receiving treatment for her injuries.12 The other investigative tool utilized by United Auto in the case, the EUO, was set for alternative dates of September 26, 2001, and October 2, 2001, nearly four months after the defendant received the notification on June 7, 2001. The record fails to demonstrate how, if at all, United Auto was prejudiced at the EUO by the 68 day delay in receiving notice after the accident. In any event, the plaintiff demonstrated that the defendant here was able to utilize two investigative tools, the IME and the EUO, both occurring while Ms. Ladino was still undergoing treatment with the plaintiff clinic. Another investigative tool, surveillance, was not undertaken at all because, as Ms. Chase testified, it is better to do so at the beginning of a claim rather than later, although Ms. Chase acknowledged that Ms. Ladino was still treating at the plaintiff clinic when United Auto received notice of the accident on June 7, 2001.
A fourth method for determining whether injuries are compensable is the peer review which was not attempted at all by defendant United Auto although, as Ms. Chase admitted, it could have been. This Court observes that this very defendant utilizes the peer review option years after notice of a claim, often even after litigation has commenced, and after the filing of a motion for summary judgment on the issues of whether medical expenses are related and necessary. Yet, no peer review was attempted in the case at bar.
The defendant’s own adjuster, Tracey Chase, acknowledged that no witnesses died between the date of the accident and the date of the notice to the insurer, United Auto received the accident report, conducted a stateline investigation, had all provider names, and no document had been destroyed. During the argument on plaintiff’s motion for directed verdict on the late notice issue, the defense admitted that what it could have done to better investigate this claim had it received earlier notice was speculative.
The Court expressly finds that plaintiff has met its burden of demonstrating no prejudice whatsoever by the purportedly late notice. “Mere speculation that prejudice may exist will not suffice when lack of prejudice is clearly demonstrated.” Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206, 209 (Fla. 1969). In the case at bar, as in Tiedtke, the essential witness provided the insurer a statement or deposition, investigative devises were utilized by the insurer, and “the purposes of the notice requirement were fully satisfied.” Id. This is not a case like Macias where “the insurer could not evaluate Macias’ PIP claims until notified. . . two years later,” and “where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured.” Id. at 218.
As noted above, this Court will not view the late notice claim in a vacuum, apart from the unrebutted expert’s testimony regarding the relatedness and medical necessity of the MRI test which is the sole bill here at issue. Given the unchallenged evidence of medical necessity and relatedness of that test to Ms. Ladino’s accident, this Court cannot find from the record before it, and from the speculative arguments presented by United Auto, that the defense was in any manner whatsoever prejudiced by the 68 day delay in providing notice. The plaintiff has met its burden of demonstrating lack of prejudice on this record and, the jury never having reached that issue, and this Court having reserved ruling on the plaintiff’s motion for directed verdict, now hereby directs a verdict for the plaintiff on the late notice issue.
Motion for New Trial
The Court, having granted plaintiff’s motion for judgment notwithstanding the verdict on the relatedness and medical necessity issues, and directed a verdict for the plaintiff on the late notice issue, hereby denies as moot plaintiff’s alternative motion for new trial.
WHEREFORE, Plaintiff’s Motion for Directed Verdict or Motion for Judgment Notwithstanding the Verdict is GRANTED and plaintiff’s Motion for New Trial is DENIED.
__________________
1The verdict form submitted to the jury instructed them to answer the first question regarding the relatedness and medical necessity of the MRI and, if answered in the negative, to “not go any further.” Accordingly, the jury never reached the second question regarding the issue of late notice.
2At the outset of trial, this Court ruled that the issue of reasonableness of the bill for the MRI was a statutory issue pursuant to section 627.736(5)(b)5, Florida Statutes, inasmuch as the effective date of the statute setting the fee schedule for MRI scans was June 19, 2001, the day before the June 20, 2001, scan in the case at bar. See State Farm Mutual Automobile Ins. Co. v. West Gables Open MRI Services, Inc., 846 So.2d 538 (Fla. 3d DCA 2003). Thus, this Court removed the issue of the reasonableness of the amount charged for the MRI from the jury’s consideration.
3While Ms. Ladino duly submitted to an independent medical examination conducted by Dr. Neil Fleischer, defendant chose not to present Dr. Fleischer’s testimony before the jury, nor did it seek to introduce his IME report. In addition, no peer review was performed in this case.
4During argument on plaintiff’s motion for directed verdict at the close of all the evidence, defense counsel candidly conceded that it had not severely impeached Dr. Quintero, but, instead, argued that the entire basis for the defendant’s opposition to the motion for directed verdict is the “gap” between the March 31, 2001, accident and the initiation of treatment on April 23, 2001. But see note 8, infra.
5As will be more fully set forth below, the defendant’s litigation adjuster, Tracey Chase, testified that she is certain she never saw plaintiff’s Exhibit 2, Dr. Quintero’s May 15, 2001, initiation of treatment letter.
6Of course, a litigation adjuster is incompetent to testify on issues of medical necessity and the defense, quite appropriately, did not seek to illicit any opinion from Ms. Chase as to the medical necessity of the diagnostic MRI test here at issue. See United Automobile Insurance Company v. Neurology Associate 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”); United Automobile Insurance Company v. Michael Rose, a/a/o Juan Velazquez, 11 Fla. L. Weekly Supp. 1042 (11th Cir. Ct. September 14, 2004) (“to the extent that United Auto was denying payment of the bill on the ground that the treatment was unreasonable or unnecessary on any ground other than that the charges were too high, United Auto would have had to submit a report from a physician pursuant to Florida Statutes, section 627.236(7)”).
7Thus, it appears from the record before the Court that United Auto delayed nearly four months after the June 7, 2001, notification of the accident in scheduling the first EUO date.
8As earlier observed, the sole basis for the defendant’s opposition to the plaintiff’s motion for directed verdict at the close of all the evidence was the “gap” between the March 31, 2001, accident and Ms. Ladino’s first seeking treatment with Dr. Quintero on April 23, 2001. Ironically, even the purported “gap” was explained by Dr. Quintero without any contradictory evidence whatsoever either by way of impeachment of Dr. Quintero or otherwise. Thus, the jury was presented with unrefuted testimony that Ms. Ladino did indeed seek treatment for her injuries with other providers during the “gap” but was unable to find a provider that would accept her for treatment.
9United Auto, in its response, argues that Viles and the statute do not apply to an insurer who “withdraws” benefits previously paid, and that “[a]n insurer cannot withdraw a payment to a medical provider when a payment has never been made.” This Court declines United Auto’s invitation to award an insurer who pays nothing at all despite no medical evidence contradicting a plaintiff’s expert. If that absurd result is what the legislature contemplated in enacting the PIP statute, it will have to explicitly say so.
10The Williamson court cited with approval the Third District’s decision in Vega v. Travelers Indemnity Company, 520 So.2d 73 (Fla. 3d DCA 1988), discussed above.
11As noted in the above factual recitation, Dr. Quintero’s testimony that she sent notice of the initiation of treatment to the insurer on May 15, 2001 (see plaintiff’s Exhibit 2) was unimpeached, surely not by the adjuster’s testimony that said notice was simply not in her claim file. Thus, the jury could find that United Auto received notice 45 days after the March 31, 2001, accident; however, the Court’s analysis of this late notice issue proceeds on United Auto’s theory that notice was not received until June 7, 2001, 68 days after the accident.
12For reasons never explained to the Court, United Auto chose not to utilize Dr. Fleischer’s IME report, nor present his testimony for the jury.
* * *
