13 Fla. L. Weekly Supp. 378b
Insurance — Personal injury protection — Summary judgment — Medical provider is entitled to summary judgment regarding whether insured was injured in accident, use of correct CPT codes, and standing where insurer filed no affidavits to oppose those issues and there is no record evidence to oppose issues — Coverage — Medical expenses — Provider is also entitled to summary judgment on issues of reasonable, related and necessary treatment where peer review filed by insurer is stricken and record evidence does not raise disputed issue of fact — Peer review is deficient where reporting physician never physically examined insured, and report makes no mention of whether physician is in active practice, reviewed all medical records, or maintains own records for three years as required by section 627.736(7) — Further, report is deficient for failing to provide facts to support opinions regarding prices charged by medical provider and limits of necessary treatment
OCEAN HEALTH, INC., as assignee of Daniel Abraham, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-020083 COCE 54. December 19, 2005. Lisa Trachman, Judge. Counsel: Cris E. Boyar, for Plaintiff. Adolfo Podrecca, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE THE PEER REVIEW
THIS CAUSE came before the Court on December 8, 2005 for hearing on Plaintiff’s Motion for Summary Judgment, and the Court having: reviewed the Plaintiff’s Motions; reviewed the Defendant’s Memorandums of Law in Opposition; reviewed the entire Court file, heard argument of counsel, reviewed the relevant legal authorities including the case law cited by both parties, and been sufficiently advised in the premises, finds as follows:
Background: On or about September 20, 2004, the Plaintiff filed a PIP suit against the Defendant seeking payment of unpaid PIP benefits. On October 18, 2004, the Defendant served its Answer and affirmative defenses. On October 27, 2004, the Defendant served its First Amended And/Affirmative Defenses. On January 20, 2005, this Court entered an Agreed Order on Plaintiff’s Motion to Amend Complaint. The Plaintiff served its First Amended Complaint and on May 3, 2005, the Defendant served its Answer/Affirmative Defenses to Plaintiff’s First Amended Complaint. On August 11, 2005, this Court entered an Agreed Order on Plaintiff’s Motion to Strike Affirmative Defenses. On September 13, 2005, the Plaintiff served an affidavit of Dr. Frankl an employee of the Plaintiff who treated the patient, Daniel Abraham. On October 1, 2005, the Defendant served a notice of filing which included an affidavit of Dr. Mansdorf and an affidavit executed by Dr. Mansdorf. On October 7, 2005, the Plaintiff served it Motion for Summary Judgment which included the affidavit of Dr. Frankl and an affidavit of the patient, Daniel Abraham. On October 13, 2005, the Plaintiff served its Motion to Strike the Defendant’s Peer Review. On October 18, 2005, the Plaintiff noticed for hearing the Plaintiff’s Motion for Summary Judgment and the Plaintiff’s Motion to Strike the Peer Review.
The affidavits filed by the Plaintiff of Dr. Frankl reflects: he is a practicing, duly and properly licensed, chiropractic physician in the State of Florida; he is and has been employed by Ocean Health, Inc. as a Chiropractic Physician; Ocean Health Inc; he was properly licensed by the State of Florida and the County of Miami Dade; he was the treating chiropractic physician responsible for the care and treatment of Daniel Abraham, who was injured in an automobile accident on 5/22/04; the patient came under his care due to the injuries sustained in the accident of 5/22/04; he utilized the information about the reported car accident to formulate my medical diagnosis, treatment, and prognosis and knowing the mechanism of the injury of a car accident is important to assist a medical provider in formulating a treatment plan and diagnosis; he was the doctor responsible for the treatment rendered to this patient from 5/24/04-9/21/04 by Ocean Health, Inc; he is familiar with the objective injuries and subjective complaints of this patient as he conducted physical examinations of this patient on 5/24/04, 5/25/04, 7/1/04, 7/29/04 and 9/1/04; he is familiar with all of the care this patient received from 5/25/04-9/21/04; he has reviewed, all of this patient’s medical records from Ocean Health, Inc. before executing the affidavit; based on his medical education and experience, he is familiar with the medical protocols as to how and when it is reasonable and medically necessary to treat a patient who was injured in an automobile accident; based on this patient’s subjective complaints and objective findings it was his medical opinion, within a reasonable degree of medical certainty and probability, that the care and treatment rendered to this patient was reasonable, medically necessary and related to this patient’s automobile accident of 5/22/04; the specific treatment at issue in this case was enumerated in the ledgers attached to the affidavit; the amount charged for the services rendered to this patient for all dates of services as a result of the 5/22/04 automobile accident from Ocean Health, Inc. was $13,738; he has training and experience in selecting the appropriate Physician’s Current Procedural Terminology known as CPT codes for the services that are rendered to a patient; the billing statements provided to the Defendant for the services rendered to this patient was on the appropriate insurance forms; the charges followed the appropriate Physician’s Current Procedural Terminology codes for the services that were provided; he is familiar with what other doctors charge for similar services in the community because he spoke to many doctors in the community about their billing; he is familiar with what other insurers consider reasonable for the services that were rendered in this case; he states the amount charged for the services rendered to this patient by Ocean Health, Inc. is reasonable, usual and customary for the community.
The affidavit of Mr. Abraham states: on 5/22/04, he was injured in a car accident and sustained injuries due to this accident; he suffered pain in his left neck, back, left shoulder, and pain through both hands and fingers; at the time of the accident my automobile insurance with U.S. Security Insurance Company was in full force and effect; on 5/24/04, he signed an assignment of benefits; it was his intention to assign my personal injury protection benefits to Ocean Health, Inc.; a copy of the assignment of benefits was attached to the affidavit as “Exhibit 1”; on 5/24/04 due to his injuries, the patient began receiving medical care from Ocean Health, Inc.; a. copy of the bills he received was attached as Exhibit “2” to his affidavit and it accurately explains the services he received due to my injuries; and that he received copies of all the bills.
The Affidavit filed by the Defendant of its peer review doctor, Dr. Mansdorf, states only his name, that he is over the age of 21, he is testifying of his own personal knowledge; he attached a copy of the peer review; and his opinions as reflected in the attached peer review was true and correct. No other information was contained in the affidavit.
The Plaintiff sought Summary Judgment as to all issues including a) whether Daniel Abraham was injured in an accident on 5/22/04; b) whether the treatment was reasonable; c) whether the treatment was medically necessary; d) whether the treatment was related to the accident; e) whether the price for the treatment was reasonable for the community; f) whether Dr. Frankl used the correct CPT code; and g) standing.
This matter is ripe to be decided by way of Summary Judgment. There were no motions to continue filed or outstanding discovery.
Conclusions of law: First, the Court finds the Plaintiff is entitled to Summary Judgment as to whether Mr. Abraham was injured in an accident on 5/22/04, whether Dr. Frankl used the correct CPT codes, and standing. The Defendant filed no affidavits to oppose these issues and there was no record evidence to oppose these issues. Accordingly, the Plaintiff’s Motion is granted as to these issues without any genuine opposition.
Second, as it relates to the remaining issues of whether the treatment was reasonable, medically necessary, related to the accident, and whether the prices were reasonable, the Court finds the pleadings on file and the record evidence submitted herewith demonstrates conclusively that no genuine issue of material facts exists.
Specifically, the Plaintiff filed affidavits to support this finding. The Defendant filed only an affidavit which contains no opinions whatsoever. The affidavit filed by the Defendant does attach a peer review. The peer review is dated May 18, 2005, and it was not filed with the Court until October 6, 2005. The last date of service in this case was 9/21/04, which means the peer review was generated one day before suit was filed and eight months after the last date of service.
The peer review is hereby stricken because Dr. Mansdorf, D.C., never physically examined the patient in violation of Section 627.736(7), Fla. Stat. which states:
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 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 if reviewed and that has not been modified by anyone other than the physician. The physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program. The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examinations and reports.
The Court, in support of the Plaintiff’s motion, relies on the appellate cases of 17th Circuit in and for Broward County of United Auto v. Damadian (Dwarika), Case Number 04-15205 CACE 08 (Fla. 17th Cir. Court 2005, Judge Fleet) [13 Fla. L. Weekly Supp. 244a]; United Auto v. Wechsel (Posada), Case Number 04-18908 CACE 25 (Fla. 17th Cir. Court 2005, Judge Rosenberg) [12 Fla. L. Weekly Supp. 1035a] and the other cases cited by the Plaintiff from Dade and Broward County.
Further, the peer review itself makes no mention of whether Dr. Mansdorf is in active practice, reviewed all the medical records or whether he maintains his records for three years as required by F.S. Section 627.736(7). The Court also finds the peer review to be conclusory as Dr. Mansdorf failed to provide facts to support his opinions regarding the prices charged by the Plaintiff or why the patient should not have had treatment beyond eight weeks with 16 visits. As a result of the above, the peer review is stricken and there is no other record evidence to oppose the Plaintiff’s Motion for Summary Judgment.
Accordingly, it is ORDERED AND ADJUDGED, the Plaintiff’s Motion for Summary Judgment and the Plaintiff’s Motion to Strike the Peer Review is hereby granted. The Court retains jurisdiction to award the Plaintiff attorney’s fees and costs.
