13 Fla. L. Weekly Supp. 899a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Where insurer failed to obtain peer review physician’s report prior to medical provider’s bill coming due, insurer cannot use peer review report, affidavit and testimony to refute prima facie showing that services rendered were reasonable, related and necessary — Partial summary judgment granted in favor of provider
MGA MASSAGES REHABILITATION CENTER INC., as assignee for BERTHA CORTINA, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-1422 CC 24 (1). June 20, 2006. Darrin P. Gayles, Judge. Counsel: Richard Shuster. Scott E. Danner.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS MATTER having come before the Court for hearing on June 6, 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.
It is hereby ORDERED and ADJUDGEDasfollows:
1. On the issue of standing Summary Judgment is granted.
2. On the issue of timely billing and billing on the proper form (Proper Billing) the Defendant did not raise these issues as an affirmative defense and did not contest the issues at the hearing, therefore timely billing and proper billing will not be issues for trial.
[Editor’s Note: There was no paragraph numbered 3. on the slip sheet.]
4. On the issue of compliance with demand letter statute, Summary Judgment is deferred by agreement of counsel.
5. On the issue of whether an accident occurred, Defendant’s counsel argued that the assignor failed to attend pre-suit and post-suit examinations under oath and requested the Court defer ruling on the issue. Plaintiff’s counsel argued that the summary judgment motion was filed in November 2005 and the Court record showed that the Defendant has not attempted to set the assignor’s deposition in the eleven (11) months since the complaint was filed and the seven (7) months since summary judgment was filed. The Court shall defer adjudication of this issue of whether an accident occurred and instructs the Defendant’s counsel to complete the assignor’s deposition within sixty (60) days.
6. On the issue of whether services were lawfully rendered Summary Judgment is granted.
7. On the issues of whether the services rendered were reasonable, medically necessary, and related, (RRN) the Plaintiff filed the affidavit of Maria Mustelier, M.D. that attested that the services rendered were reasonable, medically necessary and related. The Plaintiff also filed the affidavit of the assignor/patient which attested to involvement in the subject accident and sustaining injury therein to the patient’s neck and back.
8. In opposition to the Plaintiff’s motion for summary judgment the Defendant filed an affidavit of Peter Millheiser, M.D. dated May 31, 2006. The affidavit did not express an opinion as to RRN, but merely referenced an attached “Peer Review” report dated April 29, 2005.
9. Plaintiff’s counsel raised the following objections to Dr. Millheiser’s report: (1) That the report was hearsay, (2) That the affidavit of Dr. Millheiser did not contain any opinion on RRN and could not boot-strap impermissible hearsay, (3) the report was not a valid report because there was no records evidence that the report was in the Defendant’s possession within thirty (30) days of the Defendant’s receipt of Plaintiff’s bills or was relied upon by the Defendant when it denied payment, (4) that the report was invalid because it was not supported by the records reviewed, and (5) the report was invalid because Dr. Millheiser failed to maintain records of his prior Peer Review/IME reports and earnings for the previous three years.
10. The Defendant argued that pursuant to United Automobile Insurance Company v. Asclepius Medical Inc. a/a/o Palaez, 13 Fla. L. Weekly Supp. 425a, (Fla. 11th Circuit, 2006) an insurance company is not required to file a peer review within 30 days from the date of the notice of loss in order to establish or contest the reasonable, related, and necessity of a PIP claim.
11. This Court is aware of the split of authority between the conflicting Eleventh Circuit opinions issued in Asclepius Medical Inc. a/a/o Palaez, and the Eleventh Circuit’s opinion in Progressive Express v. Quality Diagnostic a/a/o Batista (Fla. 11th Circuit, 2006). This Court, relying upon United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA, 1998), resolves this issue of law in accord with the Batista Court, and holds that Millheiser’s report is not a valid report under 627.736(7)(a).
12. 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 report by a 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.”
13. The Defendant having failed to “first obtain a report” prior to Plaintiff’s bill becoming due, the Defendant cannot use the peer review physician’s report, affidavit, or testimony to refute the services rendered were reasonable, related and necessary.
14. Accordingly, summary judgment is granted on the issue of reasonable, medical necessity, and related.
