13 Fla. L. Weekly Supp. 1157a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Medical provider’s affidavit in support of summary judgment that contained nothing other than conclusory and self-serving statements that treatment was reasonable, related and necessary and that proper code was used to bill insurer was not sufficient to support summary judgment — Further, where affidavit directly contradicted statements made in provider’s deposition, affidavit raised factual issues which should have precluded entry of summary judgment — Trial court also erred in ruling that insurer was not entitled to rely on computer-based database to support reduction in payment of charges
PROGRESSIVE EXPRESS INSURANCE CO., Appellant, vs. FRANCISCO M. GOMEZ, M.D., P.A., (a/a/o Zoe Andrusyshyn), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County, Civil Appeals Division. Case No. 05-10947, Division X. L.C. Case No. 03-5077-SC. September 8, 2006.1 Review of a final order of the County Ct., Hillsborough County; the Hon. Elizabeth Rice, County Court Judge. Counsel: Michael C. Clark, Tampa, for Appellant. Timothy A. Patrick, Tampa, for Appellee. V. Rand Saltsgaver, Orlando, for Appellee.
(PERRY A. LITTLE, J.) Progressive appeals a final summary judgment entered in favor of Appellee Francisco Gomez, M.D., P.A., for bills he alleges Progressive underpaid. Because weconclude that the trial court erred in granting summary judgment, wereverse.
The underlying case was a fairly routine personal injury protection coverage (PIP) case. In support of his motion for summary judgment, Gomez prepared an affidavit stating that, “based upon a reasonable degree of medical certainty and probability,” the charges for the treatment he provided were reasonable and the treatment was related and necessary to the covered incident. In essence, Gomez attempted to render an expert’s opinion in his affidavit. He set forth no factual basis for his conclusions. The affidavit also stated that Gomez used the proper CPT billing code in each instance of treatment. In response to the contention that the charges were reasonable, Progressive argued, without benefit of an affidavit, that its payments were reasonable based upon the Mitchell computerized billing system (“Mitchell database”).
At the hearing, Progressive argued that Gomez’s affidavit was insufficient as a matter of law because the statements were conclusory and self-serving. Progressive also argued that statements Gomez made in his deposition conflicted with statements made in his affidavit creating issues of fact. Notwithstanding the obvious disagreement as to the reasonableness of the charges as well as the other outstanding factual and legal issues, the trial judge accepted Gomez’s affidavit, stating that it met the bare minimum requirements to sustain summary judgment in Gomez’s favor. The trial court rationalized that, as an expert, Gomez could render an opinion without disclosing the underlying facts supporting the opinion. The trial court relied upon the out of state case of Boyle v. Welsh, 589 N.W. 2d 118 (Neb. 1999) to support its conclusion. In addition, the trial court rejected Progressive’s reliance upon the Mitchell database on the ground that it could not rely upon a third party database to support the reduction of payment for the charges. Ultimately, the trial court entered summary judgment in favor of Gomez.
We review this summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760So.2d 126 (Fla., 2000). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the non-moving party. McKenna v. Camino Real Village Association, Inc., 877 So.2d 900 (Fla. 4th DCA 2004). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the trier of fact as a question of fact to be determined. Id. at 900-901.
The burden to prove that charges are reasonable, related, and necessary lies with the insured or the insured’s assignee. State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So.2d 1244 (Fla. 2d DCA 2002). We conclude that the trial court did not hold Gomez to that burden in this case.
This case presents a number of issues on appeal. Gomez’s affidavit suffers from several problems, both legal and factual. We agree with Progressive that the affidavit contains nothing more than conclusory, self-serving statements. That Gomez asserts that the treatment was reasonable, related, and necessary in his opinion, does not constitute proof of that it was, in fact, reasonable, related, or necessary. Nor does his assertion that he used the proper code to bill the insurer constitute proof thereof. Considering his complaint, it begs the question: what else would he say?
Courts in this state have held that assertions such as those Gomez propounded in his affidavit are not sufficient to support or defeat summary judgment. See Holl v. Talcott, 191 So.2d 40, 45 (Fla. 1966) (affidavit which amounts to little more than a plea of “not guilty” i.e. a “net opinion” is insufficient to establish absence of genuine issue of material fact); Spradley v. Stick, 622 So.2d 610, 612 (Fla. 1st DCA 1993) (affidavit which lacks specificity is insufficient to shift burden to the opposing party); and Progressive Express Ins. Co. v. Physical Med. Ctr. (a/a/o Leslie Herbert), appellate case no. 04-11631 (Fla. 13th Jud. Cir. December 28, 2005). In each of the foregoing cases, the affidavit was propounded by a party, as opposed to a fact or expert witness.
In accepting Gomez’s affidavit, the trial court reasoned that Gomez could render an opinion as to the reasonableness of the charges and the relatedness and necessity of the treatment without setting forth a factual basis because he is an expert. Rather than looking to Florida law relating to the general deficiencies of the affidavit (that the allegations were conclusory and self-serving), the trial judge supported her decision to give the statements the expert treatment by relying upon the out-of-state case Boyle v. Welsh, 589 N.W. 2d 118 (Neb. 1999), which allows a party who happens to be a professional to render an “expert” opinion in his own favor.2 It is curious that, in so doing, the trial court disregarded a Florida case that the Boyle court cited as disagreeing with its position on this issue. See Boyle, at 125, citing Heitmeyer v. Sasser 664 So.2d 358 (Fla. 4th DCA 1995) (expert affidavit by attorney expressing his opinion that husband’s counsel did not breach standard of care was conclusory when it did not explain why no breach arose) (emphasis added). Such affidavits are considered insufficient even when propounded by an expert witness on behalf of a party, which arguably removes the self-serving dynamic. Heitmeyer v. Sasser, supra. See also Sweet v. Sheehan, — So.2d — ; 31 Fla. L. Weekly D892; 2006 WL 739775 (Fla. 2d DCA 2006), citing Holl, at 45 (“net opinion” does not satisfy a party’s burden of establishing conclusively the absence of genuine issues of material fact. A “net opinion” as one that is a “naked assertion,” lacking in an explanation of its basis or the reason it was reached). In short, an opinion, without more, is no substitute for proof.
For PIP cases, §627.736(5)(a), Florida Statutes, sets forth what is required to prove the reasonableness of charges for particular treatments. Acceptable proof under the statute includes “evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” Gomez has presented no meaningful evidence to support his claims as to the charges.
Gomez’s affidavit raises a number of factual issues, as well. Several statements he made in the affidavit directly contradict statements he made in his deposition. In his affidavit he stated that the treatment was reasonable, related and necessary [to the covered incident]. However, in his deposition, he admitted that the insured had been under his care for a prior accident and that some treatments related to that prior incident. Also in his deposition, Gomez stated that he upcoded3 charges to avoid underpayment, while his affidavit states that he used the correct CPT codes. While material facts remained at issue, the trial judge should not have entered summary judgment. McKenna v. Camino Real Village Association, Inc., 877 So.2d 900 (Fla. 4th DCA 2004).
Because Gomez’s affidavit did not exclude all material questions of fact, Progressive was not obligated to come forward with an affidavit refuting that of Gomez. Progressive Express Ins. Co. v. Physical Med. Ctr. (a/a/o Leslie Herbert), appellate case no. 04-11631 (Fla. 13th Jud. Cir. December 28, 2005). Had Progressive filed an affidavit, decisional authority tells us that the trial court need not have considered it. Holl v. Talcott, at 45 (where movant’s affidavit fails to demonstrate the absence of a genuine issue of fact, the sufficiency of opposing party’s affidavit should never have been reached). We nonetheless briefly address the issue of the trial court’s
rejection of Progressive’s argument based upon its reliance upon the Mitchell database.4 An insurer is entitled to rely upon a computer-based database. State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So.2d 1244 (Fla. 2d DCA 2002); Progressive Express Ins. Co. (a/a/o Billy Wood) v. Francisco Gomez, M.D., P.A., appeal no. 05-5190 (Fla. 13th Jud. Cir. Feb. 23, 2006). Therefore, it was error for the trial court to reject it.
It is therefore ORDERED that the decision of the trial court is REVERSED and the cause REMANDED for further proceedings. It is further ORDERED that Progressive’s motion for appellate attorney’s fees is GRANTED, conditioned upon its prevailing in the trial court proceedings and the submission of a valid proposal for settlement. Appellee’s motion for appellate attorney’s fees is DENIED. (CRENSHAW and STODDARD, JJ. Concur.)
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1Opinion amended to correct scrivener’s errors in the caption and award of appellate attorney’s fees.
2In Boyle v. Welsh, the defendant was an attorney sued for malpractice. The trial court held, and the Nebraska Supreme Court upheld, that party defendant’s expert opinion that he did not breach the professional standard of practice was sufficient to state a prima facie case that he was not negligent, thus requiring the plaintiff to present evidence to the contrary to defeat summary judgment. The Boyle court acknowledged that other jurisdictions do not agree with its reasoning, citing as an example the Florida case Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995)
3Upcoding involves the billing of a more complicated procedure in place of a simpler exam. The purpose is to obtain higher compensation for simpler procedures.
4Because of the insurance industry’s heavy reliance upon such tools, we address this issue in an attempt to, we hope, avoid repetitious litigation of it.
