13 Fla. L. Weekly Supp. 842a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Affidavit of doctor who performed peer review is legally insufficient and may not be relied upon to rebut prima facie case that services rendered were reasonable, related and necessary and that charges were reasonable in amount where records or peer review report referenced in affidavit are not attached thereto, peer review is not supported by physical examination of insured, affidavit relies on hearsay peer review and makes conclusory allegations that charges were not correctly coded and exceeded usual and customary amounts, and affidavit presents double hearsay problem by relying on peer review not admissible as business record because prepared for purpose of litigation — Claim — Mailbox rule — Where medical provider attested that it is provider’s general practice to send copy of invoice after receiving request for invoice from insurer, and copy of invoice is in file for claim, presumption is raised that invoice was mailed to insurer — Adjuster’s testimony that he did not receive invoice is insufficient to rebut presumption of mailing where insurer failed to establish chain of custody of invoice between Tampa office where mail is received and adjuster located in Fort Lauderdale
GARY H. DIBLASIO, M.D., P.A., (Alisa Johnson) Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division ‘RD’. Case Nos. 50-2004-SC-008765-SB and 50-2004-SC-011967-SB. May 30, 2006. Debra Moses Stephens, Judge. Counsel: Glenn E. Siegel and Harley N. Kane, Boca Raton. Heather Wallace, West Palm Beach.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS ACTION was heard on May 3rd, 2006 on the Plaintiff’s Motion for Final Summary Judgment. Both sides were well represented by counsel and the Court being duly advised and having considered the evidence and argument finds as follows:
This case presents the following issues: (1) HAS THE PLAINTIFF SATISFIED ITS BURDEN OF PROVING THAT CPT CODE 99245, PERFORMED ON APRIL 12, 2004 AND BILLED AT $400.00 WAS REASONABLE, RELATED AND NECESSARY; AND IF SO, HAS THE DEFENDANT COME FORWARD WITH ANY ADMISSIBLE EVIDENCE TO REFUTE THE PLAINTIFF’S CLAIM?;
(2) WHETHER THE PLAINTIFF HAS SATISFIED THE PRESUMPTION SET FORTH UNDER THE “MAIL-BOX RULE” THAT THE PLAINTIFF SUBMITTED AN INVOICE FOR A LUMBAR SUPPORT PROVIDED ON APRIL 26, 2004, AND BILLED AT $30.00 UNDER CPT CODE L0500; AND IF SO, HAS THE DEFENDANT COME FORWARD WITH ANY ADMISSIBLE EVIDENCE TO REFUTE THIS PRESUMPTION?; AND
(3) HAS THE PLAINTIFF SATISFIED ITS BURDEN OF PROVING THAT THE OFFICE VISITS BILLED UNDER CPT CODE 99213 AT $220.00 FOR DATES OF SERVICE APRIL 26, 2004; MAY 10, 2004; MAY 24, 2004; JUNE 21, 2004; AND JULY 19, 2004 WERE REASONABLE, RELATED AND NECESSARY; AND IF SO, HAS THE DEFENDANT COME FORWARD WITH ANY ADMISSIBLE EVIDENCE TO REFUTE THIS CLAIM?
For the reasons set forth below, the Court finds that the Plaintiff has satisfied its burden, while the Defendant has not come forward with any admissible evidence to refute the Plaintiff’s claims. As such, Final Summary Judgment is appropriate for the Plaintiff.
Findings of Fact
1. This is an action for Personal Injury Protection (P.I.P.) benefits.
2. Alisa Johnson (JOHNSON) was involved in an automobile accident that occurred on May 19, 2004, of which the Defendant, Progressive Express Insurance Company (PROGRESSIVE) received notice.
3. PROGRESSIVE provided P.I.P. coverage to JOHNSON as a result of the May 19, 2004 automobile accident.
4. Following the automobile accident, JOHNSON received medical treatment from Gary H. DiBlasio, M.D., P.A. (DIBLASIO) for dates of service April 12, 2004; April 26, 2004; May 10, 2004; May 24, 2004; June 21, 2004; and July 19, 2004. These claims were timely submitted. At issue here is date of service April 12, 2004, for which DIBLASIO billed $400.00 for CPT Code 99245, and PROGRESSIVE downcoded to a 99243 level code; date of service April 26, 2004 for CPT code L0500 for a lumbar support for which DIBLASIO billed $30.00; and dates of service April 26, 2004; May 10, 2004; May 24, 2004; June 21, 2004; and July 19, 2004 for CPT code 99213 for which DIBLASIO billed $220.00 for each such date of service, and which PROGRESSIVE reduced to $92.00 for each of these five dates of service, and paid 80% accordingly.
5. JOHNSON assigned her rights and benefits of her policy of insurance with PROGRESSIVE to DIBLASIO relative to this claim. DIBLASIO filed this instant breach of contract suit against PROGRESSIVE for failure to cover 80% of the reduced expenses. Specifically, DIBLASIO claims that PROGRESSIVE is obligated to pay 80% of each of the total charges submitted for this claim in the amount of $1,725.00 at 80%, or $1,380.00, less payments made by PROGRESSIVE in the amount of $725.60, leaving a balance due in the amount of $654.40, plus statutory interest.
6. PROGRESSIVE’S adjuster, Barry Denson, confirmed in his deposition taken February 21, 2005, and which has been filed in this case, that he relied upon the Mitchell’s System in applying the reductions to this claim. The Defendant has produces no documentation or information supporting these Mitchell’s reductions applied. He also confirmed that he did not send any of DIBLASIO’S records or bills to a medical doctor to review, and did not request JOHNSON attend an Independent Medical Examination.
7. In support of DIBLASIO’S Motion for Summary Judgment, Plaintiff filed a detailed affidavit of Gary H. DiBlasio, M.D. who described in great detail the services performed and support for his opinion that the subject medical treatment rendered on April 12, 2004; April 26, 2004; May 10, 2004; May 24, 2004; June 21, 2004; and July 19, 2004 was reasonable, medical necessary, and related to the May 19, 2004 automobile accident.
8. In response to DIBLASIO’S Motion, on April 17, 2006 the Defendant filed an affidavit of Michael Zeide, M.D. This affidavit did not attach any records to which it referred. For the reasons set forth below, the Court finds that the affidavit of Dr. Zeide obtained nearly two years after PROGRESSIVE received DIBLASIO’S claims is insufficient to create a genuine issue of material fact.
In reaching its conclusion the Court has been presented and considered the documents contained in the Court file including but not limited to the affidavits of Gary H. Diblasio, M.D., Michael Zeide, M.D., F.S. §627.736, and the pleadings and discovery materials contained in the Court file.
Pursuant to Holl v. Talcott, 191 So.2d 40 (Fla. 1966) the moving party holds that the moving party bears the initial burden of proving there is no genuine issue of material fact and to establish its prima facia case for summary judgment. If that burden is met, it then shifts to the non-moving party to come forth with admissible evidence to show a question of material fact exists. Here the plaintiff has met its burden with the pleadings and the affidavit of Dr. Diblasio.Affidavit of Dr. Diblasio
In support of its motion the plaintiff filed the affidavit of Dr. Diblasio. In his affidavit Dr. Diblasio goes into great detail regarding his standing to bring the lawsuit, his treatment of his patient/Progressive’s insured including the issues of reasonableness, relatedness, and medical necessity. The Court finds Dr. Diblasio’s affidavit details each date of service provided to JOHNSON, provides support for the reasonableness, relatedness and necessity of each date of service performed, and is therefore, valid and acceptable. The Court finds that Dr. DiBlasio’s affidavit, establishes a prima facia case, and satisfies the Plaintiff’s burden of establishing that the services provided by DIBLASIO for this claim were medically necessary, related to the automobile accident of March 19, 2004, and that all charges were reasonable in amount. See Friedman, M.D., P.A. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 892a, 18th Jud. Cir., Seminole Cty. Ct., June 9, 2005; Godleski, M.D., P.A. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 891a, 18th Jud. Cir., Seminole Cty. Ct., June 10, 2005); United Automobile Ins. Co. v. Professional Medical Group, 11 Fla. L. Weekly Supp. 877a (11th Jud. Cir. App. Ct., Aug. 3, 2004); Garrido v. United Automobile Ins. Co., 12 Fla L. Weekly Supp. 372a (11th Jud. Cir., Miami-Dade Cty. Ct., Jan. 26, 2005); United Automobile Ins. Co. v. Neurology Assoc. Group Two, Inc., 11 Fla. L. Weekly Supp. 204b (11th Jud. Cir. App. Ct., Jan. 13, 2004).
Therefore the burden to show a question of material fact has shifted to the defendant. In opposition to the plaintiff’s motion the Defendant filed the affidavit of Michael Zeide, M.D. referenced above.Affidavit of Dr. Zeide
To contest and rebut the Plaintiff’s claim that the 99245 level code, billed at $400.00, and performed on April 12, 2004 was reasonable, related and necessary (issue number one provided above); and to contest and rebut the Plaintiff’s claim the office visits billed by DIBLASIO under CPT code 99213 and at the rate of $220.00 for dates of service April 26, 2004, May10, 2004, May 24, 2004, June 21, 2004 and July 19, 2004 (issue number 3 provided above), the Defendant filed the affidavit of Michael Zeide, M.D. Dr. Zeide attested that he “performed a peer review in the above styled case, which included, but was not limited to, reviewing the billing statements and medical reports of Dr. Gary DiBlasio for the medical services provided to Alisa Johnson and billed to Progressive Express Insurance Company.” Dr. Zeide also noted that he disagreed with the level 5 code billed by Dr. DiBlasio for date of service April 12, 2004, that the records for dates of service April 26, 2004; May 10, 2004; May 24, 2004; June 21, 2004; and July 19, 2004 only supported a 99212 level code, and that the charges submitted by DIBLASIO exceeded usual and customary amounts. Dr. Zeide offers no basis or other support for his conclusion. The plaintiff argues that Dr. Zeide’s affidavit is inadmissible and should be struck for four separate reasons. The Plaintiff argues that (1) Dr. Zeide’s affidavit is legally insufficient pursuant to F.R.C.P. 1.510(e) because it fails to attach any documents to which it refers; (2) because F.S. §627.736(7)(a) precludes it, (3) the rational in Frasher v. Fox Distributing regarding Dr. Zeide’s conclusory allegations as to Dr. DiBlasio’s actions precludes it, and (4) the rational in McElroy v. Perry regarding Dr. Zeide’s report prepared for the sole purpose of litigation precludes it.
(1) First the Plaintiff argues that the Defendant did not comply with F.R.C.P. 1.510(e) because the Defendant did not attach documents referred to by Dr. Zeide in his affidavit. F.R.C.P. 1.510(e) requires that “[s]worn or certified copies of all papers of parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Id.; Ferris v. Nichols, 245 So.2d 660 (Fla. 4th DCA 1971); Zoda v. Hedden, 596 So.2d 1225 (Fla. 2nd DCA 1992). Since the Defendant did not attach the records or peer review referenced in Dr. Zeide’s affidavit, the Court finds that this affidavit is legally insufficient. While it is not necessary to address the final three arguments made by the Plaintiff, the Court addresses these issues below.
(2) Second, the Plaintiff points to F.S. 627.736(7) which states 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 aFlorida 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.
Plaintiff contends that since Dr. Zeide did not perform a physical examination of the patient, his “peer review” report is not a valid report as required by the subsection (7) of the statute. Plaintiff argued that such “paper reviews” have long been a controversial issue in Florida. In 2000 the 4th DCA decided Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So.2d 229 (Fla. 4th DCA 2000), which held that a Physician’s report that treatment was medically unnecessary could be based on a review of medical records without aphysical examination and justified a refusal to pay personal injury protection (PIP) benefits to a medical provider. After that decision the “valid report” language was added to the PIP statute in 2001 as part of the amendment contained in CS/CS/SB 1092. Prior to the amendment the “valid report” language did not exist. The plaintiff points out that after the Nationwide decision made “paper reviews” valid the legislature would have no reason to change the language of the statute except to outlaw such reviews. In support of that interpretation, the Plaintiff cites to several cases and opinions for support, the most comprehensive of which is a persuasive county court decision from Miami-Dade County, Eduardo J. Garrido, D.C., P.A. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 970a (11th Jud. Cir., Miami-Dade Cty. Ct., July 12th, 2005). In Garrido the court held:
Plaintiff’s argument with regard to the invalidity of Dr. Fleischer’s report is supported by the plain meaning of the statute. Section 627.736(7)(a), Florida Statutes, (2001) defines a valid report as “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.” Id. (emphasis added) The legislature’s prerogative to use the term “and” instead of “or” before the phrase “is factually supported by the examination” is significant for the term is defined by the dictionary as “[t]ogether with or along with; also; in addition; as well as.” American Heritage Dictionary, 49 (1976) (emphasis added). . . The plain meaning of “and” clarifies that the legislature intended that a medicalrecords review must be supported by the examination findings from the IME physician. Id.
Furthermore, in reading Florida Statute §627.736(4) and (7)(a) in pari materia, Plaintiff contends that pursuant to Garrido, “[w]hen read as a whole, §627.736 is unsupportive of the proposition that an insurer may contest reasonable, necessary and related with a countervailing medical opinion produced at any time.” Garrido at 974. Plaintiff further contends that when, as in this case, the insurer only relies upon a physician’s countervailing opinion as reasonable proof under §627.736(4) as a means to dispute the medical necessity and relatedness of the Plaintiff’s medical services performed, such evidence and reasonable proof must comply with §627.736(7); otherwise, §627.736(7) would be without meaning.
Plaintiff argues that, since Dr. Ziede’s “peer review” report, (which was not attached to Dr. Zeide’s affidavit), is not valid, his affidavit based upon his “peer review” is also invalid and cannot be presented as contrary evidence here. Other cases cited by the Plaintiff include United Automobile Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999); 735 So.2d 1289 (Fla. 1999) (Rev. Denied); United Automobile Ins. Co. v. Professional Medical Group, 11 Fla. Weekly Supp. 877a (11th Jud. Cir., Miami-Dade App. Ct., Aug. 3, 2004); Mursuli v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 95a (11th Jud. Cir., Miami-Dade Cty. Ct., Sept. 30, 2004); DiBlasio v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 177c (15th Jud. Cir., Palm Beach Cty. Ct., Nov. 14, 2005); United Automobile Ins. Co. v. Wechsel Pain & Rehab Centre, Inc., 12 Fla. Law Weekly Supp. 1035a (17th Jud. Cir., Broward Cty. Ct., July 19, 2005); Ocean Health, Inc. v. U.S. Security Ins. Co., 13 Fla. L. Weekly Supp. 378b (17th Jud. Cir., Broward Cty. Ct., December 19, 2005); United Automobile Ins. Co. v. Damadian MRI in Pompano, P.A., 13 Fla. L. Weekly Supp. 244a (17th Jud. Cir., Broward App. Ct., December 19, 2005); Gomez v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 790a (13th Judicial Cir., Hillsborough Cty. Ct., May 12, 2005); Pollack Progressive Express Ins. Co., 13 Fla. L Weekly Supp. 381b (17th Jud. Cir., Broward Cty. Ct., Feb. 1, 2006). This Court alsofinds that the Defendant failed to comply with Fl. Stat. §627.736(7) in its reliance upon Dr. Zeide’s affidavit which was not supported by a physical examination, and therefore, PROGRESSIVE did not satisfy the condition precedent requirement to first “obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related or necessary in order for the insurance carrier to defend a suit for reduction, withdrawal or denial of further payment on the grounds of reasonableness, necessity or relationship.” United Automobile Ins. Co. v. Viles, 726 So.2d 320, 321 (Fla. 3rd DCA 1999); 735 So.2d 1289 (Fla. 1999) (Rev. Denied).
(3) Plaintiff’s third argument why Dr. Ziede’s affidavit is inadmissible relies on Frasher v. Fox Distributing of SW Florida, Inc., 813 So.2d 1017 (Fla. 2nd DCA 2002). There, the 2nd DCA held that “[a]n affidavit that relies on either hearsay or the plaintiff’s conclusory allegations as to the defendant’s actions or intentions is insufficient as a matter of law.” Here plaintiff claims both that Dr. Ziede’s affidavit relies on hearsay and his ultimate conclusion is merely a conclusory allegation of the Dr. Diblasio’s action. Dr. Ziede’s affidavit relies on a “peer review” which is not attached and is therefore hearsay and merely concludes that he disagreed with the level 5 code billed by Dr. DiBlasio for date of service April 12, 2004, that the records for dates of service April 26, 2004; May 10, 2004; May 24, 2004; June 21, 2004; and July 19, 2004 only supported a 99212 level code, and that the charges submitted by DIBLASIO exceeded usual and customary amounts. This is precisely such a conclusory allegation of Dr. Diblasio’s charges.
(4) Plaintiff’s fourth argument draws an analogy from McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA 2000). Plaintiff argues that there is a double hearsay problem in admitting Dr. Zeide’s report. Under McElroy “an IME report prepared for the purpose of litigation lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception.” This is what the Defendant has done in attempting to rely upon a peer review referenced in Dr. Zeide’s affidavit. Regardless of the fact that this report was not attached to Dr. Zeide’s affidavit, it is analogous to the situation in McElroy, and is inadmissible as “lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception.” Id.
Based on the arguments of the Plaintiff, this Court finds that Dr. Zeide’s affidavit is legally insufficient, and therefore, may not be relied upon by the Defendant in an attempt to rebut the presumption established by the Plaintiff that the services rendered for this claim were reasonable, related and medically necessary.Mailbox Rule
As reflected above in the second issue, the Plaintiff claims that it submitted an invoice for a lumbar support provided on April 26, 2004, and billed $30.00 under CPT code L0500 for this supply code. This bill was not paid as PROGRESSIVE claims it did not receive a copy of the invoice requested.
Gary H. DiBlasio, M.D. attested to the following in his affidavit:
“It is the standard procedure and normal course of business at Gary H. DiBlasio, M.D., P.A. to submit an invoice to an insurance company upon request, and to keep a copy of the invoice in the patient’s file after such an invoice is sent. I do show such a request being received from Progressive in the form of their Explanation of Benefits relative to this date of service for this claim. I also show a copy of the invoice for this lumbar support in Ms. Johnson’s file for this claim, indicating that this invoice was sent to Progressive after receiving their request. The invoice indicates a charge to Gary H. DiBlasio, M.D., P.A. from Scrip Chiropractic Supply in the amount of $12.99. The $30.00 charge submitted to Progressive from Gary H. DiBlasio, M.D., P.A., includes any administrative and storage costs, and is reasonable in amount and customarily charged in the community.”
The fact that Dr. DiBlasio attested that it is the Plaintiff’s general business practice to send a copy of an invoice after receiving a copy of such a request from an insurance company, and that a copy of this invoice is in the file for this claim, indicating that the invoice was in fact sent to Progressive after receiving such a request, satisfies the presumption that this invoice was in fact mailed to PROGRESSIVE. See Brown v. Giffen Industries, Inc. 281 So.2d 897 (Fla. 1973).
PROGRESSIVE has attempted to rely upon its adjuster, Barry Denson’s testimony that he did not receive this invoice to rebut the presumption of mailing established by the Plaintiff. This adjuster is located in Fort Lauderdale, Florida; however, his testimony is that the mail is first received in an office in Tampa, the explanations of benefits are generated, and then they are sent to the adjusters. PROGRESSIVE has therefore failed to establish any chain of custody for this claim regarding this invoice in order to rebut the presumption of mailing, and therefore this Court also finds that based on the affidavit of Gary H. DiBlasio, M.D., the Plaintiff has satisfied
its burden of proving that this invoice was mailed to the Defendant, and was reasonable, related and medically necessary.
As such, the Plaintiff, Gary H. DiBlasio, M.D., P.A.’s Motion for Final Summary Judgment is hereby GRANTED. Gary H. DiBlasio, M.D, P.A. shall recover from the Defendant 80% of the $1,725.00 in total charges submitted for this claim, or $1,380.00, less payments made by PROGRESSIVE in the amount of $725.60, for a total amount payable by PROGRESSIVE of $654.40, plus statutory interest in the amount of $106.24, for which let execution issue. The Court reserves jurisdiction to award reasonable attorneys fees and costs to the Plaintiff, and anything else necessary to effectuate this ruling.
