13 Fla. L. Weekly Supp. 893b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Where insurer failed to obtain valid report stating treatment was not reasonable, related or necessary prior to denying payment of benefits, peer review report obtained after denial of benefits was not valid report and cannot be used to refute medical provider’s prima facie showing that treatment was reasonable, related and necessary — No merit to argument that requirement of prior valid report applies only to benefits withdrawn and not to those withheld or denied
HIALEAH DIAGNOSTIC, INC. as assignee for NELSA VEGA, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-4936 SP 21. June 29, 2006. Ana Maria Pando, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami. Angela Williams.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS MATTER having come before the Court for hearing on June 20, 2006 on Plaintiff’s Motion for Partial Summary Judgment, and the Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises, the Court makes the following rulings:
1. This action arises out of an automobile accident that occurred on July 14, 2004. Following the accident, the assignor, Nelsa Vega, sought treatment from the Plaintiff, HIALEAH DIAGNOSTIC, INC.
2. This Court finds that the Plaintiff, HIALEAH DIAGNOSTIC IMAGING, INC., has standing to bring this breach of contract action for personal injury protection (“PIP”) benefits and the Court grants summary judgment with respect to same. The Defendant did not raise this issue as an affirmative defense.
3. This Court finds that the assignor, Nelsa Vega, was involved in a motor vehicle accident in Florida on July 14, 2004; that she was insured with the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, on the date of accident for “PIP” benefits; that said policy was in effect on the date of loss, and Court grants summary judgment with respect to same. The Defendant did not raise this issue as an affirmative defense.
4. This Court finds that the Plaintiff, HIALEAH DIAGNOSTIC IMAGING, INC., submitted its bills to the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, in a timely manner and on a proper HCFA-1500 form (“written notice of a covered loss”) and the Court grants summary judgment with respect to same. The Defendant did not raise this issue as an affirmative defense.
5. This Court finds that the Plaintiff, HIALEAH DIAGNOSTIC IMAGING, INC., properly complied with the pre-suit demand letter requirement of Florida Statute 627.736(11) and the Court grants summary judgment with respect to same. The Defendant did not raise this issue as an affirmative defense.
“REASONABLE, RELATED & NECESSARY”
6. On the issues of whether the services rendered were reasonable, medically necessary, and related, (“RRN”) the Plaintiff filed the affidavit of Andrew Schmer, D.C. who opined that the services rendered were reasonable, medically necessary and related to the motor vehicle accident of July 14, 2004. Dr. Schmer also opined that all charges for services rendered were reasonable and within the parameters of usual and customary charges for like services in the local medical community. The Court finds that the Plaintiff met its prima facie burden on the issue of RRN. See, Cicero Ortho-Med Center a/a/o David Almeida v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 81a (Fla. 11th Circuit App. 2004).
7. In opposition to the Plaintiff’s motion for summary judgment, the Defendant filed an affidavit of Marvin Merritt, D.C. dated June 16, 2006. Dr. Merritt performed a “peer review” of the records from the Plaintiff on November 16, 2004. The Court declines to consider the peer review report and affidavit of Dr. Merrit.1
8. Defendant acknowledged as exhibited by its PIP payout sheet that it received its first claim from the Plaintiff on August 5, 2004. A review of the PIP payout sheet reveals that UNITED AUTOMOBILE INSURANCE COMPANY paid no benefits on this claim submitted by the Plaintiff.2
9. Pursuant to F.S. 627.736(7)(a) “An 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 Court does not have before it the valid report of a physician obtained prior to the suspension of benefits.3
10. Florida appellate courts have already addressed Florida Statute 627.736(7)(a) to apply to any reduction in benefits and further held that a physician’s report is required prior to such reduction. See, United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA, 1998). This Court adopts the reasoning in Viles and holds that Dr. Merrit’s report is not a valid report under 627.736(7)(a). This Court is also persuaded by other opinions presented by the Plaintiff from sister courts that are in accord with the Viles decision. See, Progressive Express Insurance Company v. Quality Diagnotics, Inc. a/a/o Dora Batista, (Fla. 11th Circuit App., 2006); Quality Medical Group a/a/o Roswell Thompson Bodden v. United Automobile Insurance Company, case number 04-2057 CC 26 (Miami-Dade County Court opinion of Judge Nuria Saenz of April 20, 2006); Metro Injury Rehab Center a/a/o Dwain Kasperin v. United Automobile Insurance Company, case number 05-1680 CC 26, (Miami-Dade County Court opinion of Judge Nuria Saenz of April 25, 2006); Stand-Up MRI of Miami, P.A., a/a/o Maria Carruyo v. United Automobile Insurance Company, case number 05-2747 SP 26 (Miami-Dade County Court opinion of Judge Brownyn Miller of April 6, 2006); MGA Massages Rehabilitation Center, Inc., a/a/o Bertha Cortina v. Mercury Insurance Company of Florida, case number 05-1422 CC 24, (Miami-Dade County Court opinion of Judge Darrin Gayles of June 20, 2006).
11. The Defendant having failed to “first obtain a valid report” prior to Plaintiff’s bill becoming due, the Defendant cannot now use the peer review physician’s report, affidavit, or testimony to refute the services rendered as being reasonable, related and necessary.
12. The Defendant attempts to argue that Florida Statute 627.736(7)(a) applies only to benefits that are “withdrawn” and not withheld (or denied in whole). To accept such an interpretation of the statute would lead to an absurd or ridiculous result. Insurers would be encouraged to withhold payment under all circumstances so as to circumvent the intent of the legislature in setting a procedural requirement. It is well-settled that statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended by the legislature. Drury v. Harding, 461 So.2d 104 (Fla. 1984). This Court has heard this Defendant attempt to advance this esoteric argument before and the Court remains unpersuaded. See, Eduardo J. Garrido, D.C., P.A., a/a/o Blanca Milian v. United Automobile Insurance Company, 12 Fla. L. Weekly 970a (“A strict interpretation of “withdraw” leads to a ridiculous result where an insurer who ‘out-right’ denies coverage absent a physician’s report may circumvent Fla. Stat. 627.736(7)(a) whereas the insurer who covers a claim must obey to the strict letter of Fla. Stat. 627.736(7)(a) to deny further coverage”).
13. Accordingly, summary judgment is granted in favor of Plaintiff on the issue of reasonable, medical necessity, and related.
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1The Defendant failed to attach the actual peer review report to the affidavit of Dr. Merrit and attempted to introduce the peer review for the first time at the hearing. However, even if properly attached to the affidavit, it would not have affected the outcome of the Court’s decision because the insured’s benefits were “withdrawn” (in this case denied in whole) prior to the Defendant being in possession of the physician’s report. See, United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998).
2The payout sheet reveals that Defendant paid nothing to any of the other providers that submitted claims in this case. However, the Plaintiff, HIALEAH DIAGNOSTIC, INC., is the only provider whose claim is before the Court at this time.
3Defendant concedes that it was not in possession of the peer review from Dr. Merrit until at least November 16, 2004.
