13 Fla. L. Weekly Supp. 359b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — New trial — Where insurer presented no medical testimony to refute testimony of medical provider’s medical expert that treatment was reasonable, related and necessary, and cross-examination in no way severely impeached expert’s testimony, zero verdict is unjust and against manifest weight of evidence — Motion for new trial granted
DADE INJURY REHAB CENTER, a/a/o Dexter Hepburn, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-005241 CC-23 (01). December 5, 2005. Myriam Lehr, Judge. Counsel: Harvey D. Ginsburg, Neufeld, Kleinberg & Pinkiert, P.A., Aventura, for Plaintiff. Dawn Jayma, Office of the General Counsel, United Automobile Insurance Company, for Defendant.
[Editor’s note: See 13 Fla. L. Weekly Supp. 360a.]
ORDER GRANTING PLAINTIFF’S MOTION FOR NEW TRIAL
THIS CAUSE having come before this Court on Plaintiff’s Motion for New Trial and this Court having presided over the trial in this cause, considered the pleadings and the evidence presented, and being fully advised in the premises herein, hereby rules as follows:
FINDINGS OF FACT
Plaintiff, Dade Injury Rehab Center filed this case to recover Personal Injury Protection (“PIP”) benefits on behalf of Dexter Hepburn, the insured of Defendant UNITED AUTOMOBILE INSURANCE COMPANY. Mr. Hepburn sought treatment at Plaintiff’s facility for injuries sustained in an automobile accident. Defendant failed to pay bills for said treatment asserting that they were not reasonable, related and necessary. The case was tried before a jury on November 17, 2004. The jury returned a verdict in favor of Defendant.
The sole medical testimony presented by Plaintiff was that of the treating physician, Dr. Williamson, who testified that all treatment was conducted under his direction, and that he also performed a follow up exam and found that the patient’s condition had improved. He further testified that the injuries were related to the accident and that the treatments performed were reasonable and necessary.
Dr. Williamson first examined the insured on August 30, 2001 for about 45 minutes to 1 hour. Dr. Williamson found that the insured suffered from headaches and lower back pain. The doctor also found that the insured had spasms and tenderness in his cervical spine area with radiating tenderness to arm and numbness to hand. Dr. Williamson testified that the injuries were related to the accident and developed a plan for treatment based upon the injuries that the patient suffered. The treatment plan prescribed by Dr. Williamson for Mr. Hepburn involved Hydrotherapy, Electric Muscle Stimulation, and massages done by a licensed Massage Therapist. Dr. Williamson testified that all these treatments were performed under his direction and prescription and were to be done daily for the first week and then three times a week for a couple of weeks.
Dr. Williamson testified that about five weeks after Mr. Hepburn’s first visit sometime in October, he took another physical exam and based upon what Mr. Hepburn told him about his neck pain and numbness radiating to his left hand, Dr. Williamson reduced the treatments to twice a week. He further decided to send Mr. Hepburn to an Orthopedic Surgeon which Dr. Williamson testified was a usual and customary procedure. In conclusion, Dr. Williamson testified that Mr. Hepburn treated with him from August 30, 2001 to November 19, 2001. He further stated that November 19, 2001 was the final exam, and Dr. Williamson further testified that the medical care that was provided pursuant to the treatment plan relating to injuries was necessary and reasonable, and that although Mr. Hepburn did not fully recover, his condition improved.
In the cross-examination of Dr. Williamson, counsel asked many questions about the doctor’s attention to Mr. Hepburn’s medical history — what he knew about Mr. Hepburn’s two prior accidents; whether the injuries were attributable to Mr. Hepburn’s engine falling out of the car; and whether it was important for him to know how fast the injured was going at the time of the accident. Dr. Williamson answered that the threshold for injury to the neck or back is low speed. Dr. Williamson also answered during his cross that although the medical records from Jackson Memorial Hospital revealed no evidence of trauma on the day of the accident, that it does not necessarily contradict his findings.
During cross-examination, Dr. Williamson further testified when asked if he was at the facility when therapy was done whether he was present at the times that the therapy was administered and whether he signed off on every HCFA bill. Dr. Williamson testified that the aforementioned were not required until October 1, 2003. On redirect examination, the Doctor explained and clarified the point that the purpose for giving treatment is palliative; that is, to make the patient feel better. As to the two prior accidents that the Doctor was asked about on cross-examination, Dr. Williamson testified that the pain Mr. Hepburn described was consistent with the MRI findings. He also went on to testify that it made no difference whether the injury came from the engine falling down or the wheel coming off the car in that it was irrelevant. The Doctor also testified that on October 17, he saw Mr. Hepburn and felt that he was doing better because in his opinion, the treatments rendered and the body defenses were working together.
This Court finds that the cross-examination of Dr. Williamson in no way severely impeached the testimony of Dr. Williamson on direct examination that all treatment was reasonable, related and necessary. A reasonable jury could not discount his testimony and reject the uncontroverted medical testimony.
CONCLUSION
The issue to be considered by this Court in granting a new trial is 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. The trial Judge should only intervene when the manifest weight of the evidence dictates such action. Smith v. Brown, 525 So. 2d 868 (Fla. 1988). See also Cloud v. Fallis, 110 So.2d 669 (Fla. 1959).
While the credibility of an expert witness and the weight of his testimony are for the jury to determine, Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984), the fact finder must be guided by the greater weight of the evidence. 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. See Vega v. Travelers Indemnity Company, 520 So.2d 73 (Fla. 3rd DCA 1988). The Court in Vega reasoned that zero verdicts in Florida will be upheld only in the face of conflicting evidence regarding whether Plaintiff was injured in fact. In the instant case, although the jury heard the impeachment of Dr. Williamson, it erred in reaching a zero verdict. The jury could not totally reject the uncontroverted medical testimony that the Plaintiff had in fact been injured and sustained some injuries as a result of the subject accident which necessitated the prescribed medical care by Dr. Williamson. The Defendant presented no medical expert, nor any expert opinions through depositions or otherwise, to contradict Dr. Williamson’s testimony that the prescribed treatment for the injuries were related to the subject accident and all treatment prescribed was reasonable, related and necessary.
A jury of lay persons cannot totally disregard an expert medical opinion. The question presented to the jury was whether or not Dexter Hepburn received any medical care from Plaintiff, Dade Injury Rehab Center, and whether said care was reasonable, related and necessary as well as the amount of said bills. During deliberations, the jury submitted a written question asking if Mr. Hepburn had received authorization from the defendant to go for treatment at Dade Injury Rehab. This court gave a written answer to the jurors advising them that this was not an issue for their consideration. About 30 minutes later the jury returned a zero verdict stating Dade Injury Rehab had not provided any treatment which was reasonable, related and necessary. The written question sent out by the jury was completely outside the realm of the issue submitted to the jury for consideration. The role of the Court in granting a Motion for New Trial is to determine whether the verdict is unjust. See Michelin Tire Corporation v. Milbrook, 799 So.2d 248 (Fla. 3rd DCA 2001). The Court finds the jury’s action of returning a zero verdict is unjust and against the weight of the evidence presented at trial and a new trial should be granted to Plaintiff. In reaching this decision, this Court has considered the credibility of the witnesses along with the weight of all the other evidence.
Wherefore, Plaintiff’s Motion for New Trial is GRANTED.
