13 Fla. L. Weekly Supp. 433a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Affidavit of treating physician was sufficient to meet medical provider’s burden of demonstrating absence of genuine issue of material fact regarding medical necessity and relatedness of treatment — Affidavit was conclusory and insufficient with regard to reasonableness of amount claimed where affidavit stated that amount of bill was reasonable and what is customarily charged for similar medical services in the community but did not provide foundation of provider’s personal knowledge and/or expertise regarding community billing practices, did not recite any admissible facts or physician’s guide on which statement regarding reasonableness of amount billed was based, and did not make an affirmative showing that provider was competent to testify regarding his billing statement
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. QUALITY DIAGNOSTIC INC., As assignee of ELDA AVILES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-208 AP. February 14, 2006. On appeal from the County Court for Miami-Dade County, Judge Teretha Lundy Thomas. Counsel: Douglas H. Stein, for Appellant. Armando A. Brana and Mari Sampedro-Iglesia, for Appellee.
[Editor’s note: See also 13 Fla. L. Weekly Supp. 684b.]
(Before LEESFIELD, PINIERO and LOPEZ, JJ.)
(PINIERO, J.) This case involves a Final Summary Judgment entered in favor of the Appellee, the medical provider, as assignee of the insured, on the issue of reasonableness, relatedness, and medical necessity of the services rendered. Although the Appellant, Progressive Express Insurance Company, raised several points on appeal, this Court chose only to address the following point.
Progressive argues that the medical provider’s affidavit from the treating physician did not conclusively demonstrate the absence of any issue of material fact involving the issues of reasonableness, relatedness, and medical necessity of the services rendered to Progressive’s insured. Progressive contends that the affidavit was insufficient to satisfy the medical provider’s burden because it consisted of conclusory, self-serving statements from the treating physician without including any statement of the underlying facts which gave rise to the conclusions. Further, the affidavit was not substantially based on the physician’s personal knowledge. Therefore, partial summary judgment should have been denied.
The pertinent question before this Court is whether the affidavit of the treating physician, Dr. Vazquez, is conclusory, and therefore insufficient to meet the medical provider’s burden of demonstrating the absence of any genuine issue of material fact regarding the reasonableness, relatedness and medical necessity of the bills generated.
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Montejo Investments v. Green Companies, Inc. of Florida, 471 So. 2d 158, 159 (Fla. 3d DCA 1985). Thus, pursuant to Montejo, affidavits must satisfy three requirements: (1) personal knowledge; (2) facts that would be admissible in evidence; and, (3) a showing of competency to testify to the matters stated therein. Id.
When examining Dr. Vazquez’ affidavit, paragraph four states that “the medical treatment rendered to Elda Aviles was medically necessary and related to the injuries that she suffered in the above mentioned accident.” This would be considered conclusory except for the fact that in paragraph three, Dr. Vazquez states that he was the treating physician for Elda Aviles and he “. . .reviewed her entire medical file as it relates to her automobile accident of April 20, 1998.” Because he reviewed her entire file, he made the statement in paragraph four from his personal knowledge, thereby satisfying the first requirement. Regarding the second requirement, paragraph three is slim on facts that would be admissible in evidence. The doctor states only that he reviewed the file and that he treated Ms. Aviles. Having said that, the second requirement, although weak due to a lack of substantive facts, appears to be present. Regarding the third requirement, the doctor shows competency to testify to his statement in paragraph four based on the fact that he reviewed the file and treated Ms. Aviles. For this reason, it would seem that paragraph four regarding “medically necessary and related” would not be deemed conclusory.
When reviewing paragraph five of the affidavit, it states that “the medical bill from Quality Diagnostic, Inc., date of service, June 9, 1998, in the amount of $3,050.00 is reasonable and what is customarily charged for similar medical services in the community.” However, Dr. Vazquez’ affidavit does not preface paragraph five with any foundation of personal knowledge and/or expertise regarding the billing practices of the community, thereby failing to satisfy the first requirement of Montejo. Regarding the second requirement, the doctor does not recite any facts or physician’s guide on which he bases his statement regarding the reasonableness of the amount billed that would be admissible in evidence. Thus, the second requirement was not satisfied. Finally, the doctor makes no affirmative showing that he is competent to testify regarding his billing statement. “[G]eneral statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue”. Heitmeyer v. Sasser, 664 So. 2d 368, 360 (Fla. 4th DCA 1995). Consequently, the third requirement does not appear to have been met. Because the requirements of Montejo have not been met in paragraph five, Dr. Vazquez’ affidavit concerning the issue of reasonableness of the amount billed is conclusory.
Since we find that the treating physician’s affidavit is conclusory with respect to the reasonableness of the bills (what is customarily charged for similar medical services in the community), the affidavit is insufficient to meet the medical provider’s burden of demonstrating the absence of any genuine issue of material fact regarding the issue of reasonableness of the bills.
In light of the above, we hereby AFFIRM the lower court’s ruling granting partial summary judgment as to the relatedness and medical necessity of the same, and REVERSE the lower court’s ruling granting partial summary judgment regarding the issue of the reasonableness of the bills.
Further, taken as a whole, we find that the Appellee is the prevailing party on appeal. Therefore, we hereby GRANT Appellee’s motion for appellate attorney’s fees conditioned upon the insured ultimately prevailing with a recovery on the policy. See Tench v. American Reliance Ins. Co., 671 So. 2d 801, 802 (Fla. 3d DCA 1996).
Accordingly, this cause is hereby REMANDED to the trial court for proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED. (LEESFIELD AND LOPEZ, JJ., concur.)
