13 Fla. L. Weekly Supp. 381b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider filed affidavit of treating physician stating that treatment rendered was related to accident and medically necessary and that charges were reasonable in amount, provider met burden of moving party to establish non-existence of any genuine issue of material fact — Opposing affidavit of physician filed by insurer is insufficient to raise disputed issue of material fact where physician’s report was obtained untimely after withdrawal of benefits and physician is not licensed under same chapter as treating physician — Affidavit of actuary is legally insufficient where reference to information collected from providers does not demonstrate personal knowledge, Medicare data on which actuary also relies is proprietary to third party not shown to be authoritative source on issue, and fees paid by Medicare are insufficient to raise disputed issue of material fact as to reasonableness of fees charged in non-Medicare context — Final summary judgment entered in favor of provider
MITCHELL R. POLLAK, M.D., P.A. (a/a/o Brenton Farr), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-20245 COCE 53. February 1, 2006. Robert W. Lee, Judge. Counsel: Andrew Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Matt Hellman, Plantation, for Defendant.
AMENDED ORDER GRANTING PLAINTIFF FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 16, 2005 for hearing of the Plaintiff’s Motion for Partial Summary Judgment filed on October 5, 2005, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. The above-styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on July 31, 2003.
2. On or about September 27, 2005, Plaintiff filed its Motion for Partial Summary Judgment regarding whether treatment rendered by the Plaintiff to the insured was reasonable, necessary, and related to the insured’s accident on August 27, 2002.
3. In support of its Motion, the Plaintiff provided the sworn affidavit of Dr. Mitchell Pollak, an orthopedic physician, who concluded after an examination, that all of the treatment of the patient was related to his automobile accident, medically necessary, and reasonable in amount. The affidavit establishes the Plaintiff’s prima facie case on these issues.
4. On October 13, 2005, the Defendant filed the Affidavit of Darrell D. Spell, FSA, who offered the opinion that the fees charged by Dr. Pollak “exceed the reasonable charge for the services provided.”
5. On October 19, 2005, the Defendant filed the Affidavit of Dr. Joseph A. Costello, Jr., a chiropractor, who offered the opinion that various services provided by Dr. Pollak were “not medically necessary, reasonable, or related.”
6. On November 4, 2005, the Defendant filed its Amended Affidavit of Joseph A. Costello, D.C.
7. The Motion was heard before the Court on November 16, 2005.
8. On December 14, 2005, this Court entered its Order Granting Plaintiff’s Motion for Partial Summary Judgment. Thereafter, a pretrial conference was set for January 31, 2006.
9. At the pretrial conference, the Plaintiff argued that the “Partial Summary Judgment” should have actually been a “Final Summary Judgment,” based on the arguments made in the motion and at the hearing, as well as the sworn proof supporting and contravening the motion. In sum, the Court agrees that all issues were addressed.
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 Brenton Farr was reasonable, medically necessary, and related to the accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists on these issues.
The Plaintiff makes three arguments as to why the Defendant’s affidavits are insufficient to raise a disputed issue of material fact. First, the Plaintiff argues that the physician’s report was obtained untimely. Second, the Plaintiff argues that Dr. Costello cannot contradict the opinion of Dr. Pollak because they hold different specialty licenses. Finally, the Plaintiff argues that Darrell Spell’s affidavit should be disregarded because it is not based on personal knowledge.
Untimely Reports. Section 627.736(7)(a), Florida Statutes, provides in relevant part that “[a]n insurer may not withdraw payment of a treating physician without consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician. . . stating that treatment was not reasonable, related or necessary”(emphasis added). In the present matter, the Plaintiff presented prima facie evidence that the subject bills were covered medical expenses. After Plaintiff filed suit and approximately two years and 4 months after bills were first submitted, the insurer obtained Costello’s report; thus, the insurer is placing the “cart before the horse.” See United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1988).
Under Florida law, PIP benefits are “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 same.” Fla. Stat. §627.736(4)(b). This 30-day period provides the insurer a safe harbor to avoid payment of any penalties, interest and attorney’s fees. However, failure to pay or obtain reasonable proof within 30 days does not operate as a waiver of the insurer’s right to thereafter contest the bills as being unreasonable, not related to the accident, or not medically necessary. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). The problem for the insurer is not the failure to authenticate the claim within 30 days, but rather the failure to obtain a medical report prior to the withdrawal of PIP benefits in this case. Fla. Stat. §627.736(7). So, while the insurer does not lose its right to contest whether a bill is reasonable, related or medically necessary if it fails to obtain “reasonable proof” within 30 days, it still must obtain a medical report before it can thereafter withdraw benefits. See Viles, 726 So.2d at 320. See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente, J., concurring); Optima Health & Rehab v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty. Ct. 2003); A-1 Mobile MRI v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 1097 (Broward Cty. Ct. 2005). The undisputed facts establish that the Defendant decided not to pay the claim well before it obtained the physician’s report.
Pursuant to the case law and above-cited statute, obtaining a physician’s report after the fact does not create a disputed issue of material fact on the issues of relatedness or medical necessity. Defendant cannot challenge the necessity or relatedness of Dr. Pollak’s treatment since no report was obtained to support this contention prior to withdrawing PIP benefits.
Different Specialties. Defendant has filed the affidavit of Joseph A. Costello, Jr., D.C., a “licensed doctor . . . of chiropractic medicine” in opposition to Plaintiff’s Motion for Summary Judgment. Dr. Mitchell R. Pollak is, however, a board certified orthopedic physician, and in accordance with Fla. Stat. §627.736(7)(a), Progressive was required to 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 insurer to defend itself.
Here, Defendant has obtained a report by a chiropractor, not an orthopedic physician. On a related issue, this Court has previously held that “when the insured files an affidavit of the treating orthopedic physician stating that treatment rendered is reasonable, related and necessary, and the insurer submits an affidavit of a physician of undisclosed specialty . . . there is no competent evidence of record to dispute that any orthopedic treatment was reasonable, related and necessary.” Garcia v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 888b (Broward Cty. Ct. 2005). In accordance with Fla. Stat. §627.736(7)(a) and Garcia, Progressive’s submission of the report of a chiropractor is legally insufficient and untimely and cannot be considered in opposition to Plaintiff’s Motion for Summary Judgment.
Insufficient Affidavit. The Plaintiff also argues that the affidavit of Darrell Spell is legally insufficient on its face. Spell, who is an actuary, prepared a report with his opinions in which he stated the Plaintiff’s charges exceeded what he considered to be reasonable. Spell rendered his opinion based on percentiles obtained from outside sources, and further supported his position in conjunction with a Medicare conversion factor and a survey of HMOs that is propriety to his employer, Milliman Inc. The Plaintiff argues that Spell’s affidavit is legally insufficient pursuant to Fla. R. Civ. P. 1.510 and Fla. Stat. §627.736.
Pursuant to Florida Rule of Civil Procedure 1.510(e), supporting and opposing affidavits for summary judgment must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. See Harrison v. Consumers Mortgage Co., 154 So.2d 194, 195 (Fla. 1st DCA 1963).
The Plaintiff argues that paragraphs 4, 5, 6, 7 and 8 of Spell’s affidavit are not based upon personal knowledge and must therefore be stricken. Spell’s opinion is based solely upon a review of the Explanation of Benefits forms and “a review of a range of billed charges for the applicable CPT codes” derived from “providers in the area in and around Coral Springs,” and supported by Medicare and HMO data. Spell fails, however, to demonstrate the personal knowledge necessary to explain how he collected this data from “providers in and around Coral Springs.” The Court agrees with the Plaintiff’s position that, without more, the mere reference to this information being collected from “providers” is insufficient to demonstrate personal knowledge on this issue.
Nevertheless, Spell further notes that he is relying on Medicare and HMO data to offer his opinion that the Plaintiff’s fees are not reasonable. As for the Medicare information, the affiant bases his opinion on “data that is proprietary to Milliman.” Spell offers no information whatsoever to establish a foundation that Milliman is an authoritative source on the issue. Moreover, the Court holds that the fees paid by Medicare are insufficient on their own to raise a disputed issue of material fact that the fees charged by Dr. Pollak are reasonable in a non-Medicare context.
Therefore, as to the matters at issue in this Motion, the Court finds that there are no disputed issues of material fact. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion is GRANTED, and a final summary judgment is hereby entered in favor of the Plaintiff.
