13 Fla. L. Weekly Supp. 177c
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Insurer cannot oppose motion for summary judgment regarding reasonable price for services by filing affidavit and peer review of physician that insurer did not rely upon in applying reductions to medical provider’s bills, rather than opposing motion with documentation that insurer actually relied upon to reduce bills — Withdrawal of benefits in reliance on peer review prepared by physician who did not examine insured is contrary to PIP statute — Insurer’s failure to comply with section 627.736(7)(a), by use of peer review which was obtained one year after claims were submitted and which was not supported by physical examination, results in waiver of insurer’s right to present countervailing expert testimony from physician — Summary judgment entered in favor of medical provider
GARY H. DIBLASIO, M.D., P.A., (Cheryl Baumann), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2004-SC-7775-SB-RD. November 14, 2005. Debra Moses Stephens, Judge. Counsel: Glenn E. Siegel, Boca Raton, for Plaintiff. Joseph Murasko, North Palm Beach, for Defendant.
REVERSED and REMANDED at 14 Fla. L. Weekly Supp. 1027a
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This action was heard on September 28, 2005 on Plaintiff’s Motion for Summary Judgment. Upon consideration, the Court makes the following findings of fact and of law:Finding of Fact
1. This is an action for Personal Injury Protection (P.I.P.) benefits.
2. The Defendant Progressive Express Insurance Company stipulates that the patient/insured in this matter was covered by a contract of insurance for the subject accident, which, provided Florida No-Fault insurance benefits.
3. Defendant stipulates that it has received timely notice of an alleged accident however, Defendant does not concede that an accident has actually occurred.
4. The Defendant stipulates and acknowledges timely receipt of bills from the Plaintiff.
5. Following the automobile accident, BAUMANN received medical treatment Gary H. DiBlasio, M.D., P.A. (DIBLASIO) for dates of service March 4, 2004, March 18, 2004, April 8, 2004, April 12, 2004, April 22, 2004 and May 20, 2004. The only dates of service still at issue in this case are March 18, April 8, April 22 and May 20, each of which the Plaintiff timely submitted its claim for $220.00 for CPT code 99213, and which PROGRESSIVE applied a $127.00 reduction to reduce each of these four dates of service to $93.001. PROGRESSIVE then paid 80% of each of the four $93.00 reduced amounts.
6. BAUMANN 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 four $127.00 reductions, or $127.00 times four dates of service = $508.00 at 80% = $406.40 plus statutory interest.
7. PROGRESSIVE’S adjuster, Miriam Jimenez, confirmed in her deposition taken January 27, 2005, and which has been filed in this case, that she relied upon the Mitchell’s System in applying the reductions to this claim. She also confirmed that she did not send any of DIBLASIO’S records or bills to a medical doctor to review, and did not request BAUMANN attend an Independent Medical Examination.
8. In support of DIBLASIO’S Motion for Summary Judgment, Plaintiff filed the affidavit of Gary H. DiBlasio, M.D., Mohan Gulatti, M.D. and Craig Lichtblau, M.D. who all opine that the subject medical treatment was reasonable, necessary and related.
9. In response to DIBLASIO’S Motion, on May 19, 2005 the Defendant filed an affidavit and peer review report of Michael Zeide, M.D. who opined that he “could not say, within a reasonable degree of medical probability that the injuries were indeed related to the accident . . .” Dr. Zeide also opined that he “question[ed] the medical necessity of the treatment . . .” Furthermore, Dr. Zeide opined that “Dr. DiBlasio’s bills were not reasonable in amount.” Also attached to Dr. Zeide’s report were photographs the Defendant claims to be of the vehicle involved in the accident.
10. The affidavit of Dr. Zeide obtained approximately one year after PROGRESSIVE received DIBLASIO’S claims is insufficient to create a genuine issue of material fact.Conclusions of Lawa. Reasonableness
A basic tenet of law in Florida is that “A party opposing a motion for summary judgment will not be permitted to alter the position of its previous pleadings, admissions, affidavits, depositions or testimony to defeat summary judgment.” Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla. 4th DCA 1970). This is what the Defendant has attempted to do in this case. PROGRESSIVE, through its adjuster, Miriam Jimenez, confirmed that it only relied upon the Mitchell’s System in applying the reductions to DIBLASIO’S bills submitted for this claim. The Defendant has produced nothing in opposition to Plaintiff’s Motion for Summary Judgment regarding its reliance upon Mitchell’s System in applying the reductions to this claim. DIBLASIO claims that PROGRESSIVE cannot now alter its position regarding its position on the reasonableness of its charges as PROGRESSIVE has already acknowledged that it only relied upon the Mitchell’s System in applying the reductions. Dr. Zeide’s affidavit and peer review report filed by PROGRESSIVE alters the Defendant’s prior position and reliance upon which the bills were reduced, and is solely an attempt to by the Defendant to defeat Plaintiff’s Motion for Summary Judgment.
The intent of the P.I.P. statute is to guarantee swift payment for claims submitted, and that PROGRESSIVE’S complete reliance upon the Mitchell’s System in applying reductions to DIBLASIO’S claims, and then filing an affidavit and peer review of Dr. Zeide approximately one year after the submissions of DIBLASIO’S claims only to oppose Plaintiff’s Motion for Summary Judgment defeats the purpose and intent of the P.I.P. statute.
DIBLASIO has posed the following question to the Court in determining whether to grant Plaintiff’s Motion for Summary Judgment regarding the issue of reasonableness:
In a P.I.P. case, can the Defendant oppose a Motion for Summary Judgment regarding reasonable price by filing an affidavit and peer review of a doctor that the Defendant confirmed was not relied upon in applying reductions to the Plaintiff’s timely submitted claims; and the documentation that was actually relied upon in applying those reductions was not filed or relied upon in opposition to Plaintiff’s Motion for Summary Judgment?
The answer to above question is no. The law in Florida is clear. The purpose of the P.I.P. Statute is to guarantee prompt and swift payment to valid claims for benefits. Allowing the Defendant to change its position, and what it relied upon to support their opposition to the reasonableness of the Plaintiff’s charges would run contrary to the purpose of the P.I.P. statute, as well as the basic tenet set forth in Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota referenced above. In this instant case the Defendant, by solely relying upon the Mitchell’s System in applying reductions to DIBLASIO’S bills; and then abandoning this reliance in opposition to Plaintiff’s Motion for Summary Judgment, and attempting to file a report and affidavit of Dr. Zeide nearly one year after DIBLASIO’S claims were submitted, circumvents the purpose of the P.I.P. statute. Therefore, Plaintiff’s Motion for Summary Judgment regarding the issue of reasonableness is granted in this regard.b. Medical Necessity and Relatedness
The court may not consider evidence which is otherwise inadmissible solely to defeat a Motion for Summary Judgment. Garrido v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 970, 972 (Fla. 11th Jud. Circuit in and for Miami-Dade County, County Court, July 21, 2005); citing Ivey v. Allstate, 774 So.2d 679, 684 (Fla. 2000). PROGRESSIVE has filed the affidavit and peer review report of Michael Zeide, M.D. in opposition to DIBLASIO’S position that the services rendered were medically necessary and related to the January 23, 2004 automobile accident. PROGRESSIVE has also attached unauthenticated photographs of the claimant’s vehicle related to the accident, and claims that there was minimal damage which would create a factual issue relating to the necessity and relatedness of DIBLASIO’S treatment rendered to BAUMANN.
DIBLASIO contends that these unauthenticated photographs may not be considered as there is no allegation that Dr. Zeide has any expertise as an accident reconstructionist, and furthermore, that Dr. Zeide’s affidavit and peer review to which the photographs are attached are inadmissible for purposes of opposing Plaintiff’s Motion for Summary Judgment.
DIBLASIO argues that Dr. Zeide’s affidavit and peer review report are inadmissible for the following two reasons:
1. The Defendant may not present evidence to alter its adjuster, Miriam Jimenez’s prior confirmation that the only issue she had with DIBLASIO’S claims for CPT codes 99213 was with the amount of their price, for which she only relied upon the Mitchell’s System to determine. DIBLASIO now contends that PROGRESSIVE should now not be permitted to dispute this prior admission and testimony, (See Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, at pg. 526), especially when the affidavit and peer review was filed approximately one year after the claims were submitted, and for the sole purpose of litigation and to refute Plaintiff’s Motion for Summary Judgment.
Although the Plaintiff has filed the affidavits of Gary H. DiBlasio, M.D., Mohan Gulatti, M.D. and Craig Lichtblau, M.D., who all opine that the subject medical treatment was medically necessary and related to the automobile accident of January 23, 2004, DIBLASIO argues that the issues of medical necessity and relatedness are not really at issue in this case. Miriam Jimenez, who was the adjuster who was assigned to this claim prior to suit being filed confirmed in her deposition taken on January 27, 2005 that she agreed with the with the level of coding submitted by DIBLASIO, and never requested an Independent Medical Examination or Peer Review of DIBLASIO’S records to question the medical necessity or relatedness of the treatment.
2. DIBLASIO also contends that the affidavit and peer review of Dr. Zeide are inadmissible as being untimely, and in violation of Florida Statute §627.736(7). The Plaintiff has cited Crooks v. State Farm Mutual Automobile Insurance Company, 659 So.2d 1266 (Fla. 3rd DCA 1995) which cites Florida Statute §627.736(4) requiring the prompt payment of claims. Specifically,
“Personal injury protection benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of the same. . . However, any payment shall not be deemed to be overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer.” (See Crooks, 659 So.2d at 1268, citing Florida Statute §627.736(4)(b)).
The Plaintiff argues that the affidavit and peer review of Dr. Zeide is untimely since it was not obtained until approximately one year after DIBLASIO’S claims were submitted. The Plaintiff also argues that since the Defendant is now attempting to rely upon Dr. Zeide’s affidavit and peer review report as a means to dispute Plaintiff’s claims based on medical necessity and relatedness, PROGRESSIVE must have first complied with Florida Statute §627.736(7)(a).
Florida Statute §627.736(7)(a) reads, in pertinent part, as follows:
“Whenever the mental or physical condition of an injured person covered by personal injury protection coverage is material to any claim that has been or may be made for past or future personal injury protection benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. . . An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by personal injury protection, 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. 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. . .”
DIBLASIO’S contention is that if PROGRESSIVE questioned BAUMANN’S physical condition, and whether the treatment performed by DIBLASIO was medically necessary or related to the January 23, 2004 automobile accident, it was incumbent upon the Defendant to have complied with §627.736(7)(a) in disputing the medical necessity and relatedness with the report of another physician. DIBLASIO has also brought to this Courts attention the legislative history of this statutory provision as provided by the March 26, 2001 Senate Staff Analysis and Economic Impact Statement for Senate Bill 1092 which provides that purpose of amending §627.736(7)(a) is to “help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.” This is precisely what PROGRESSIVE has attempted to do through Dr. Zeide, which is directly contrary to §627.736(7)(a).
This Court agrees with Garrido v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 970 (Fla. 11th Jud. Circuit in and for Miami-Dade County, County Court, July 21, 2005), as persuasive authority that the Defendant’s failure to comply with §627.736(7)(a) results in the waiver of an insured’s right to present countervailing expert testimony from a physician.” Id. PROGRESSIVE responded that under §627.736(4) if it does not have reasonable proof to establish that it is not responsible for payment, it still has the right to contest payment. In this case however, PROGRESSIVE has only presented the affidavit and peer review report of Dr. Zeide to refute Plaintiff’s Motion for Summary Judgment. In reading Florida Statute §627.736(4) and (7)(a) in pari materia, this Court agrees with Garrido in that “[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 v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. at 974. 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. Since the Defendant has presented no other countervailing evidence this Court may consider as proof in opposition to Plaintiff’s Motion for Summary Judgment, it is hereby ORDERED AND ADJUDGED that:
Final summary judgment is hereby entered in favor of the Plaintiff, GARY H. DIBLASIO, M.D., P.A., and against the Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY.2 Plaintiff, GARY H. DIBLASIO, M.D., P.A., as assignee of Cheryl Baumann, shall recover from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, the principal amount of $406.40, plus statutory interest at the annual rate of 7% in the amount of $22.60, for the total sum in the amount of $429.00, that shall bear interest at the rate of 7% for let execution issue.
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1For the March 4, 2004 date of service DIBLASIO billed $400.00 for CPT code 99245 which was properly paid at 80%, and this Court previously granted Plaintiff’s Motion for Partial Summary Judgment regarding CPT codes 72040-26, 72110-26, and 72148-26 in the amount of $140.00. [13 Fla. L. Weekly Supp. 179a] Date of service April 12, 2004 is also not at issue as it was also paid properly at 80%.
2The Defendant’s affirmative defenses one and two address the reasonableness, relatedness and medical necessity issues which are addressed in this Order above.
The Defendant’s third affirmative defense asserts that the Plaintiff failed to respond to Defendant’s request for additional information; however, the adjuster, Miriam Jimenez confirmed in her deposition (p.44) that there was never a request for additional information sent to DIBLASIO.
The Defendant’s fourth affirmative defense asserts that the Plaintiff failed to comply with §627.736(5) “including but not limited to untimely billing and billing that fails to comply with the Physicians Current Procedural Terminology (CPT), ICD-9 standards and; failure of Plaintiff in furnishing the signatures required, upcoding; and unbundling of bills.” As noted in footnote number 1 above, only CPT 99213 code remains at issue as the other such codes have either been paid properly at 80%, and this Court has previously granted Plaintiff’s Motion for Partial Summary Judgment regarding CPT codes 72040-26, 72110-26, and 72148-26. The adjuster, Miriam Jimenez confirmed in her deposition (p.44) that all DIBLASIO’S claims were timely and that 99213 was the proper CPT code.
The Defendant’s fifth affirmative defense asserts that “the Plaintiff has failed to comply with the Pre-Suit Notice requirements of Florida Statute 627.736(11);” however, the adjuster, Miriam Jimenez confirmed in her deposition (pp.41-43) that she is able to compare the bills received from DIBLASIO with PROGRESSIVE’S P.I.P. payout log and determine the reductions applied for this claim.
