13 Fla. L. Weekly Supp. 189a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Independent medical examination is rejected as opposing affidavit where IME report was untimely served and is unsworn — Insured’s statement acknowledging that he suffered knee injury more than twenty years ago does not create disputed issue of material fact as to reasonableness, relatedness or necessity of treatment where statement is consistent with medical provider’s position that treatment did not arise because of prior knee injury but because of new injury — Even if insured believed that current injury was related to prior injury, PIP statute requires insurer to obtain physician’s statement, not layman’s statement, to avoid liability for payment of PIP benefits — Provider’s motion for final summary judgment granted
ALEN G. GORDON, M.D., P.A. (a/a/o Moss Burnard), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-4218 COCE 53. October 19, 2005. Robert W. Lee, Judge. Counsel: Michael Fischetti, Margate, for Plaintiff. Craig Posner, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 3, 2005 for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
This is a PIP case. The only remaining issue is whether the Plaintiff’s treatment was reasonable, related, and medically necessary. The Defendant failed to timely serve any affidavit in opposition to the Motion. The Court specifically rejects the independent medical examination of Khosrow Maleki, M.D., as it was served untimely and not sworn. See Jackson v. State, 881 So.2d 666, 667-68 (Fla. 5th DCA 2004). The Defendant further argues that the insured’s own sworn statement, which has previously been filed of record, creates a disputed issue of material fact when the insured acknowledged that more than twenty years ago he suffered a knee injury. The Defendant argues that this testimony, standing alone, creates a disputed issue of material fact on whether Dr. Gordon’s treatment was reasonable, related, or medically necessary. The Court rejects this argument for two reasons.
First, the insured’s sworn statement is entirely consistent with the Plaintiff’s position that the medical treatment arising out of the instant case arose not because of the prior knee injury, but because of the new injury. For example, the insured specifically advised that his knee prosthesis had not “moved” as a result of the new accident. Additionally, the insured was asked, “any prior automobile accident that occurred, any accident with your left knee required you to wear the soft case?” His response was an unequivocal “No.” The insured’s sworn statement creates no “disputed” fact.
Second, even if the insured believed that his current injury was somehow related to his prior injury, his testimony is unable to create a disputed issue. The Florida Legislature set in place a statutory scheme that requires an insurer to obtain a physician’s report, not a layman’s statement, to avoid liability for payment of PIP benefits. In pertinent part, Fla. Stat. §627.736(7) provides, “a[n] insurer may not withdraw payment of a treating physician without the consent of the injured person, 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.” The Defendant has no such report. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff shall submit a proposed Final Judgment confirming to the terms of this Order.
