13 Fla. L. Weekly Supp. 439a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Where reasonableness of charges for treatment, not reasonableness of treatment itself, was in dispute between parties, and medical provider filed affidavit of treating physician in support of motion for summary judgment which addressed reasonableness of treatment but failed to submit any proof as to reasonableness of charges, provider failed to satisfy burden for granting summary judgment
PROGRESSIVE EXPRESS INSURANCE CO., Appellant, vs. PHYSICAL MEDICINE CENTER, INC., (a/a/o Leslie Herbert), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 04-11631, Division X. L.T. Case No. 03-1687-CC. December 21, 2005. Review of a final order of the County Ct., Hillsborough County. Juris: Fla. R. App. P. 9.030(c)(1)(A). Counsel: Douglas M. Fraley, Tampa, for Appellant. Timothy Patrick, Tampa, for Appellee.
[Lower court order published at 12 Fla. L. Weekly Supp. 254c.]
OPINION AND ORDER
(RICHARD A. NIELSEN, Presiding J.) Appellant, Progressive Express Insurance Co., (defendant below) appeals a final judgment entered against it on the ground that Appellee, Physical Medicine Center, Inc., (a/a/o Leslie Herbert) was not entitled to summary judgment when it failed to support its contention that the charges for services rendered were reasonable, as distinguished from the reasonableness of the treatment. For the reasons stated below, the final judgment is reversed.
FACTS AND PROCEDURAL HISTORY
On January 22, 2003, Appellee, Physical Medicine Center Inc. (“PMC”), as assignee of Leslie Herbert (“Herbert”), filed a complaint against Appellant, Progressive Express Insurance Company (“Progressive”). PMC, as Herbert’s assignee, sought recovery of unpaid PIP benefits. Progressive filed an Answer and Affirmative Defenses.
On October 1, 2004, PMC filed a motion for final summary judgment with a supporting affidavit from its owner, Dr. Robert Lupo (“Lupo”). PMC’s motion contended that Progressive had the burden of proving the treatment charges were unreasonable. The Motion stated that through Lupo’ s affidavit, PMC presented uncontradicted evidence that the medical bills were reasonable, related and necessary and that the proper CPT code was billed. Progressive did not present any evidence contradicting Lupo’s affidavit.
Lupo’s affidavit stated he was the owner of and a physician at PMC, and possessed the most knowledge relating to Herbert’s care and treatment. The affidavit listed five dates of service with the CPT Code and the amount billed. Finally, it stated within a reasonable degree of medical probability and based upon the patient’s subjective complaints and objective findings that the medical treatment was reasonable, necessary and related to the motor accident. The affiant attested that each medical charge was “properly billed and coded pursuant to the 2000 CPT manual published by the American Medical Association and the Customized Fee Analyzer.”
The issues at the hearing were: (1) whether there was a genuine issue of material fact that remained in light of the affidavit offered by PMC as to reasonableness of the charges, and treatment being reasonable, related, and necessary, generally; and (2) the sufficiency of PMC’s evidence in support of its motion for summary judgment and (3) the sufficiency of PROGRESSIVE’s evidence or the lack thereof to oppose PMC’s motion. At the hearing on the motion for summary judgment, Progressive argued PMC had not met its burden of proving the charges for the medical bills were reasonable.
On November 30, 2004, the trial court entered an “Order Granting Final Summary Judgment for Plaintiff.” The order stated that Lupo’s affidavit specified the “medical bills were reasonable” and Progressive failed to file a counter affidavit or to respond to PMC’s affidavit. On January 5, 2005, the court entered final judgment, finding that the bills were reasonable, related and necessary. The final judgment awarded PMC $89.00 plus interest and attorney’s fees and costs.
On December 28, 2004, Progressive filed a Notice of Appeal of the Order Granting Final Summary Judgment for Plaintiff. On January 5, 2005, the lower court entered a Final Judgment. Pursuant to Fla.R.App.P. 9.110(l), the notice of appeal of the Order Granting Final Summary Judgment for Plaintiff vested jurisdiction in this court to review the Final Judgment.
ANALYSIS
The standard of review of the entry of summary judgment is de novo. McKenna v. Camino Real Village Association, Inc., 877 So.2d 900 (Fla. 4th DCA 2004). 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. Id. at 900. 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.
Progressive appeals a county court order granting summary judgment. Progressive contends that PMC did not meet its burden of proof as to the reasonableness of the charges. Derius v. Allstate Indemnity Co., 723 So.2d 271, 272 (Fla. 4th DCA 1998). This argument has merit. First, even the complaint is very vague as to the relief sought. It is not possible to determine whether the dispute between the parties was over unpaid bills, reduced bills, or denied claims. Complicating the issues is that the motion for summary judgment argued that the insurer (Progressive) had the burden of proving that the treatment charges were unreasonable. PMC’s assertion in the trial court, and before this court, is not a correct statement of the law. Derius v. Allstate Indemnity Co., id.; State Farm Mutual Automobile Ins. Co. v. Sestile, 821 So.2d 1244 (Fla. 2d DCA 2002) (insured bears the burden of proving the reasonableness of healthcare charges).
The central issue in this appeal is the sufficiency of the affidavit filed in support of the motion for summary judgment. PMC filed an affidavit of the treating physician stating that the treatment rendered was reasonable, necessary, and related to the covered incident. However, during the hearing, and as related above, it appeared that it was the charges for the treatment that the parties disputed, not the treatment itself. Pursuant to section 627.736(5)(a), Florida Statutes, healthcare providers may charge only a reasonable amount for their services. The statute goes on to list what may be considered in determining what is a reasonable charge for services. In this instance, PMC failed to submit any proof as to the reasonableness of the charges. The affidavit addressed only the reasonableness of the treatment. Although it may seem like a fine distinction, it is a significant distinction nonetheless.1
The trial court considered it significant that Progressive did not file an affidavit opposing the one PMC filed. However, there was no need for Progressive to file an opposing affidavit. The necessity and reasonableness of treatment was not disputed, and no proof was offered as to the reasonableness of the charges. PMC did not satisfy its burden for the granting of summary judgment. Such failure could be raised by Progressive at the hearing on the motion for summary judgment with or without an opposing affidavit.
It is worth emphasizing again that the statute cited above sets forth a number of different items a court may consider in determining the reasonableness of charges. None appears in the record.
Section 627.736 mandates an insurance company pay eighty percent of reasonable expenses for necessary medical services.2 Derius v. Allstate Indemnity Company, 723 So.2d 271 (Fla. 4th DCA 1998). PMC has the burden of proving the expenses were reasonable. Lupo’s affidavit only avers that the medical treatment was reasonable. The case law clearly establishes that reasonableness of medical bills is a separate and distinct issue the insured has to prove. Common sense and logic dictate that reasonable medical bills and reasonable medical treatment are not the same thing. Consequently, the lower court erred in granting summary judgment because PMC did not meet its burden of proving the reasonableness of the medical charges.
CONCLUSION
Based upon the foregoing, the summary judgment is REVERSED and the case is REMANDED for further proceedings. Accordingly, Appellee’s motion for appellate attorney’s fees is DENIED. (HONEYWELL and BARBAS, JJ., Concur.)
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1Even had the affidavit stated that the charges were reasonable, such a self-serving statement is lacking of proof. Such an affidavit would have been insufficient to prove the essential allegations. Frasher v. Fox Distributing of S.W. Florida, Inc., 813 So.2d 1017 (Fla. 2d DCA 2002) (conclusory affidavit as to plaintiff’s subjective beliefs insufficient as a matter of law).
2Fla. Stat. Section 627.736 provides in pertinent part as follows:
(1) Required benefits — Every insurance policy . . . shall provide personal injury protection. . .as follows:
(a) Medical benefits — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . .
. . .
(5) Charges for treatment of injured persons. —
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered. . . (Emphasis supplied.)
