13 Fla. L. Weekly Supp. 1016a

Insurance — Personal injury protection — Standing — Issues of lack of standing and defective assignment not raised in pleadings are not impediment to summary judgment — Notice of loss — HCFA form — Signature of medical provider — Where provider provided all information on HCFA form necessary to process claim, form is substantially complete and substantially accurate as to all material elements despite typewritten signature of provider — No merit to argument that earlier version of statute, which required complete and accurate completion of all provisions of form, not merely material provisions, applies because policy was issued prior to statutory amendment where legislature made it clear that amendment applies to treatment and services occurring on or after effective date — Summary judgment — Where adjuster stated in deposition that bills were not paid because they were applied to deductible, and in affidavits opposing motion for summary judgment insurer averred that treatment was not reasonable, related or necessary, insurer did not impermissibly alter position since positions are not inconsistent — Affidavit of adjuster, which attempted to authenticate independent medical examination report that was hearsay, is disregarded as hearsay — Where IME physician refers to and attaches hearsay IME report to his affidavit, but also independently sets forth findings as result of examination and opinion that further treatment would not be reasonable, related or necessary, affidavit is not hearsay — As there remains disputed issue of material fact as to reasonableness, relatedness and necessity of treatment after IME date, provider’s motion for summary judgment is granted in part on all issues except that treatment

DR. RAMI J. TOUEG (a/a/o Nery Pineda), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-19424 COCE 53. August 1, 2006. Robert W. Lee, Judge. Counsel: Todd S. Link, Fort Lauderdale, for Plaintiff. Ben Soo-Hoo, Coral Gables, for Defendant.

ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on July 14, 2006 for hearing of Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:¹

Background. On November 17, 2004, the Plaintiff filed his Complaint seeking unpaid PIP benefits. On February 18, 2005, the Defendant filed its Answer and Affirmative Defenses, asserting two defenses: (1) failure to meet deductible; and (2) improperly completed HCFA forms. On June 5, 2006, the Plaintiff served his Motion for Summary Judgment on all issues. The matter was set before the Court for hearing for July 14, 2006. The Plaintiff’s Motion included a copy of the Declaration Page; a copy of the Assignment of Benefits; a copy of the No-Fault Payment Register; and the original Affidavit of Michael Surdis, D.C., which included a copy of the patient’s chart.

On June 23, 2006, the Plaintiff served his Notice of Filing which included the Affidavit of Crystelle Goodin, records custodian for Dr. Rami J. Toueg. On July 6, 2006, the Defendant served its Notice of Filing of Affidavit of Dulce Munoz, litigation adjuster for United Automobile. The affidavit purports to authenticate the independent medical examination of Dr. Neil Fleischer, and asserts that the bills through March 24, 2004 are under the $2000.00 deductible. On July 11, 2006, the Defendant served its Notice of Filing of Affidavit of Dr. Neil Fleischer. Based on his independent medical examination of the patient on March 25, 2004, Dr. Fleischer concluded that any further treatment was not reasonable, related, or necessary.

At the hearing on July 14, 2006, the parties stipulated to coverage; the accident; and the timely submission of bills. The Defendant, however, claimed that it was disputing standing due to the Plaintiff’s failure to sign the submitted bills. Additionally, the Defendant argued that the Assignment of Benefits was invalid. The Plaintiff pointed out in response that the Defendant had raised neither standing nor a defective assignment as a defense. Further, the Plaintiff argued that the Affidavit of Dr. Fleischer should be disregarded for three reasons: (1) it is inconsistent with the Defendant’s prior position set forth in the pleadings and depositions; (2) it includes hearsay; and (3) it relies on his own IME report which is hearsay.

Conclusions of Law. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.

The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Nery Pineda was reasonable, medically necessary, and related to the accident, and whether the Defendant’s proffered defenses have been sufficiently rebutted.

As for the issues of lack of standing and defective assignment of benefits, the Court agrees with the Plaintiff that these are no impediment to summary judgment because the Defendant failed to raise them in the pleadings. The Plaintiff is not required to rebut defenses that are not framed by the pleadings.

Proof of Notice of a Covered Loss. Next, the Court considers the Defendant’s defense based on improperly completed HCFA forms. The Defendant argues that because Dr. Toueg failed to sign the HCFA forms, United Automobile has not been provided with written notice of a covered loss as required by the PIP statute. The undisputed record reflects that the HCFA forms at issue were not physically signed by any party. Rather, Dr. Toueg’s name was typewritten in Box 31.

The Defendant argues that the HCFA forms are therefore facially deficient, and as a result, fail to put the insurer on notice of a covered loss as required by Fla. Stat. §627.736(5)(d). The pertinent portion of this statute reads: “an insurer shall not be considered to have been furnished with notice of the loss or medical bills due unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein” (emphasis added). The statute further requires the use of the CMS 1500 form (or its equivalent), which for a provider other than a hospital must also include the provider’s signature in the signature box.

As pertains to the medical services, the Defendant points out a deficiency: the provider used the typewritten, rather than signed, name of Dr. Toueg in Box 31. In analyzing the Defendant’s argument, the Court first considers the statutory definition of “properly completed.” The Legislature has defined this term as meaning “providing truthful, substantially complete, and substantially accurate responses to all material elements to each applicable request for information or statement” (emphasis added). Fla. Stat. §627.732(13). This definition was added by Fla. Session Law 2003-411, §7, which took effect on October 1, 2003, prior to the dates of service in this case.

No reported appellate case law has apparently yet discussed the parameters of this provision. One treatise explains the provision as follows:

The provision is new and untested, and moreover – painfully unclear. Though it would appear that by the use of terms such as “substantially complete,” “substantially accurate,” and “all material elements,” and by providing a means for waiver by “agreement of the parties,” the legislature seemed to have intended a common sense test to determine if a bill is properly completed – that is, if the insurer has all of the information needed to process the claim, or agreed to accept the information, the bill is “properly completed.”

R. Lazega, Florida Motor Vehicle No-Fault Law §5:10 (2004) (emphasis in original).

Proceeding to the question of the use of a typewritten “signature,” the Court notes that federal regulations governing use of CMS forms likewise provide that the form is to be “signed by the provider, supplier, or hospital.” 42 CFR §424.33(b)(2005). See also 20 CFR §10.801(e) (2006). Administrative regulations further elaborate that the “Physician (Supplier) Signature Requirement” may be met by “authoriz[ing] an employee (e.g., nurse, secretary) to enter the physician’s signature in item 31 [. . . :] (1) Manually; (2) By stamp-facsimile or block letters; [or] (3) By computer. Carriers Manual Part 3, §3057(B)(1)(d)(2004). In the instant case, the signature is provided as typewritten.

In an analogous situation, one circuit appellate court has ruled that the absence of a physician’s license number does not put the insurer on “notice of a covered loss” as required by statute. Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla L. Weekly Supp. 637, 637 (13th Cir. Ct. 2005). Other cases also address the absence of the information. See Top Chiropractic v. Nationwide Mutual Ins. Co., 12 Fla L. Weekly Supp. 152 (Orange Cty. Ct. 2004); Miami Medical Group v. Progressive Southeastern Ins. Co., 11 Fla. L. Weekly Supp. 246 (Miami-Dade Cty. Ct. 2004). The decision in these three cases is understandable in light of the Legislature’s specific inclusion of the license requirement in the statute. As a result, the license requirement is “material” under Fla. Stat. §627.736(5)(d). To determine whether the omission of the signature of the physician is material, the Court next considers how Florida courts have construed “substantially complete” in analogous contexts.

A review of Florida cases involving construction of expressions similar to “substantial completion” indicates that a court should overlook mere technical deficiencies and instead look at whether the party is provided with all material information necessary to permit clear review. Fla. Jur. 2d Words & Phrases S-Z, 288 (2005). Therefore, the omission of the physician’s signature on the CMS form does not, standing alone, mean that the insurer was not provided proof of notice of a covered loss. The Defendant does not claim that this defect caused it any difficulty in reviewing the claim. Unlike the physician’s license number, the physician’s signature is not specifically required by the PIP statute itself.

The Defendant was clearly provided all information needed to process the claim. As a result, the Court finds that the typewritten signature in Box 31, without any other defects in the form, lead to the conclusion that the CMS form is “substantially complete, and substantially accurate [. . .] as to all material elements.” Therefore, the Court holds that the Plaintiff is entitled to summary judgment on the Defendant’s affirmative defense concerning the signature requirement. This ruling is consistent with this Court’s prior ruling on an analogous issue in Garcia v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 888 (Broward Cty. Ct. 2005).

Even if the signature were material, however, persuasive authority exists that the typewritten designation can constitute a “signature.” Under Florida law,

in the absence of a statute prescribing the method of affixing a signature, it may be affixed in many different ways. It may be written by hand, and, generally, in the absence of a statute otherwise providing, it may be printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another.

Wemett v. State, 536 So.2d 349, 351 (Fla. 1988) (emphasis added). See also State v. Hickman, 189 So.2d 254, 258 (Fla. 2d DCA 1966); In re Estate of Levitt, 172 So.2d 466, 467 (Fla. 3d DCA 1965); Hillstrom v. Gosnay , 188 Mont. 388, 395, 614 P.2d 466, 470 (1980). The Court recognizes that, in such a case, evidence is required to demonstrate under these authorities that the party intended the typewritten name to constitute the affixing of his signature. The Court need not, however, reach this question because the Court has already found that the absence of the provider’s signature is not, standing alone, material to defeat a claim for treatment after October 1, 2003.

The treatment at issue in this case all occurred after October 1, 2003, the effective date of the revised statute. The Defendant argues, however, that the earlier version of the statute should apply because the insurance policy was originally issued prior to the effective date of the revision. Arguably the earlier version of the statute is more favorable to United Automobile because it is not limited to “material provisions” only. The Court rejects the Defendant’s argument on the applicability of the earlier version because the Florida Legislature clearly made the new version of the statute “apply to treatment and service occurring on or after October 1, 2003.” Ch. 2003-411, § 16 (4), Laws of Fla. (emphasis added).

Change of Position. The Court next considers the Plaintiff’s argument that the Defendant has improperly altered its position in order to attempt to defeat summary judgment. In the deposition of the Defendant’s adjuster, the Plaintiff elicited testimony that the initial bills were not paid because they were applied to the policy deductible. In its affidavits filed to contravene the Plaintiff’s Motion for Summary Judgment, however, the Defendant averred that the treatment rendered after March 25, 2004 were not reasonable, related, or necessary. The Plaintiff argues that this is an impermissible change in position merely to defeat summary judgment. The Court disagrees.

Under Florida law, a party opposing a motion for summary judgment is not permitted to “alter the position of his previous pleadings, admissions, depositions or testimony in order to defeat a summary judgment.” Home Loan Co. Inc. of Boston v. Sloane Co. of Sarasota, 240 So.2d 526, 526 (Fla. 2d DCA 1970). However, the Court does not find an impermissible altering of position in the instant case. The Defendant’s claim that the initial treatment was not paid because it was under the deductible is not inconsistent with the Defendant’s later position that the treatment was not reasonable, related, or necessary. The Court sees no reason for an insurer to have to evaluate the reasonableness, relatedness, or medical necessity of treatment if it will not be paid by the insurer anyway because it falls under the deductible. See B. Berman, Florida Civil Procedure ¶510.7[5] (2006) (“if what seems contradictory can be credibly explained or reconciled, this principle will not be applied”).

Reasonable, Related, and Necessary Treatment. Finally, the Court notes that the Plaintiff’s affidavits establish a prima facie case on the issue of reasonableness, relatedness, and medical necessity. Initially, the Court notes that the Defendant does not contest treatment for March 25, 2004 and prior. For treatment thereafter, the Defendant filed two affidavits, litigation adjuster Dulce Munoz and chiropractor Dr. Neil Fleischer. The Court agrees with the Plaintiff that the affidavit of Munoz should be disregarded as hearsay. The litigation adjuster’s attempt to authenticate a report prepared after an independent medical examination is unavailing, as the report is pure hearsay. McElroy v. Peiry, 753 So.2d 121, 126 (Fla. 2d DCA 2001). The same is not true of Dr. Fleischer’s affidavit, however.

While Dr. Fleischer does refer to and attach his IME report, he also independently sets forth in his affidavit his findings as a result of his examination which occurred on March 25, 2004. His opinion was that any further treatment would not be reasonable, related, or medically necessary. The Plaintiff has not contested the affidavit on any other grounds. As a result, there continues to be a disputed issue of material fact as to whether treatment after March 25, 2004 was reasonable, related, or medically necessary. Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED IN PART on all issues except for treatment after March 25, 2004. At trial, the issues are limited to whether any treatment after March 25, 2004 was reasonable, related, or medically necessary.

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¹The Court thanks legal intern Lourdes Velez of Florida International University for her research assistance in preparing this Order.

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