13 Fla. L. Weekly Supp. 200b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Summary judgment — Opposing affidavit — Medical provider’s motion to strike physician’s affidavit filed in opposition to motion for partial summary judgment, based on argument that it is not competent evidence because it is only acknowledged and not made under oath, is denied — Where affidavit of treating physician establishes that amounts charged are usual, customary and reasonable and that services rendered were reasonable, necessary and related to accident and opposing affidavit does not address whether services rendered were reasonable, related and necessary but disputes the reasonableness of only some of charges claimed, provider is entitled to partial summary judgment regarding bills for which opposing affidavit does not create question of fact — Where PIP benefits have been exhausted since filing of suit, provider is only entitled to recover interest on past due amounts, from date insurer received bills to date of exhaustion, and statutory penalties
ST. GERMAIN CHIROPRACTIC, P.A., as assignee of SUSAN O’BERRY, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-002703. September 12, 2005. John R. Sloop, Judge. Counsel: David B. Blessing, The Coury Law Firm, P.A., Lake Mary. Stacy R. Morris.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This case was before the court on August 15, 2005, on Plaintiff’s Motion for Partial Summary Judgment and Entitlement to Attorney’s Fees and Costs (served June 29, 2005). The court, having heard argument of counsel, having reviewed the pleadings and file materials, and being otherwise fully advised in the premises, hereby FINDS, ORDERS and ADJUDGES as follows:
1. This case involves claims for personal injury protection benefits arising out of a motor vehicle accident that occurred on or about July 8, 2002.
2. The assignor, Susan O’Berry, had personal injury protection benefits coverage through a policy of insurance issued by Progressive Consumers Insurance Company, which policy was in full force and effect on July 8, 2002. The personal injury protection benefits were exhausted on August 21, 2003. This action was filed with the court on August 22, 2002, before any benefits were exhausted.
4. The dates of service, CPT codes, amounts charged by St. Germain Chiropractic, P.A., and the amounts allowed by Progressive Consumers Insurance Company at issue for purposes of the plaintiff’s motion are as follows:
Date of Service CPT Code Plaintiff's Charge Defendant's Allowed Amount 07/10/02 99203 $200.00 $142.00 07/10/02 72052 $280.00 $187.00 07/11/02 97124 $45.00 $43.00 07/12/02 97124 $45.00 $43.00 07/15/02 97124 $45.00 $43.00 07/16/02 97124 $45.00 $43.00 07/19/02 97124 $45.00 $43.00 07/22/02 97124 $45.00 $43.00 07/24/02 97124 $45.00 $43.00 07/25/02 97124 $45.00 $43.00 08/05/02 97124 $45.00 $43.00 08/12/02 97124 $45.00 $43.00 10/22/02 99213 $95.00 $82.00 10/22/02 97124 $45.00 $43.00 12/04/02 98941 $50.00 $0.00 12/04/02 97010 $30.00 $0.00 12/04/02 97014 $30.00 $0.00 12/04/02 97124 $45.00 $0.00 12/05/02 98941 $50.00 $0.00 12/05/02 97014 $30.00 $0.00 12/11/02 98941 $50.00 $0.00 12/11/02 97010 $30.00 $0.00 12/11/02 97014 $30.00 $0.00 12/13/02 98941 $50.00 $0.00 12/30/02 98941 $50.00 $0.00 12/30/02 97010 $30.00 $0.00 12/30/02 97014 $30.00 $0.00 12/30/02 99213-25 $95.00 $0.00 01/03/03 98941 $50.00 $0.00 01/03/03 97010 $30.00 $0.00 01/03/03 97014 $30.00 $0.00 01/14/03 98941 $50.00 $0.00 01/14/03 97010 $30.00 $0.00 01/14/03 97014 $30.00 $0.00 01/30/03 98941 $50.00 $0.00 01/30/03 97010 $30.00 $0.00 01/30/03 97014 $30.00 $0.00 03/13/03 98941 $50.00 $0.00 03/13/03 97010 $30.00 $0.00 03/13/03 97014 $30.00 $0.00 03/27/03 98941 $50.00 $0.00 03/27/03 97010 $30.00 $0.00 03/27/03 97012 $30.00 $0.00 04/11/03 98941 $60.00 $0.00 04/11/03 97010 $30.00 $0.00 04/11/03 97014 $30.00 $0.00 04/11/03 97124 $45.00 $0.00 04/24/03 98941 $60.00 $0.00 04/24/03 97010 $30.00 $0.00 04/24/03 97014 $30.00 $0.00 05/08/03 98941 $60.00 $0.00 05/08/03 97010 $30.00 $0.00 05/08/03 97012 $30.00 $0.00 06/02/03 98941 $60.00 $0.00 06/02/03 97010 $30.00 $0.00 06/02/03 97014 $30.00 $0.00 TOTALS: $2775.00 $884.00
6. The above chart shows that there are 26 dates of service at issue for this motion and 8 distinct CPT codes as follows: 99203; 72052; 97124; 99213; 98941; 97010; 97014; and 97012. Progressive Consumers Insurance Company reduced some billed amounts and paid benefits based on the reduced amounts for dates of service of July 10, 2002 through October 22, 2002. Progressive Consumers Insurance Company did not pay any benefits for billing for dates of service December 4, 2002 through June 2, 2003.
7. The Affidavit of Patrick St. Germain, D.C., has been filed in support of the motion. His affidavit establishes that the amounts billed were usual, customary and reasonable and that the health care services rendered were reasonable, necessary, and related to the motor vehicle accident.
8. The Affidavit of David Bennett, D.C., has been filed in opposition to the motion. This affidavit only addresses the reasonableness of certain charges and does not address whether the health care services rendered were reasonable, necessary, and related to the motor vehicle accident.
9. The court denies the plaintiff’s ore tenus motion to strike Dr. Bennett’s affidavit based on the argument that it cannot be considered by the court and is not competent evidence as it was not made under oath, but has only been acknowledged. Therefore, the court has considered and relied upon Dr. Bennett’s affidavit to support this order.
10. The defendant has also not filed any competent evidence in opposition to the motion regarding whether the health care services rendered were reasonable, necessary, and related to the motor vehicle accident.
11. Dr. Bennett’s affidavit create’s a question of fact for some — but not all — of the billing at issue.
A. Paragraph 6 of the affidavit sets forth the charges for some but not all of the CPT codes at issue that Dr. Bennett feels are reasonable.
B. There is a question of fact precluding partial summary judgment on the following CPT codes: 72052, 99213, 97124, and 98941.
12. However, Dr. Bennett’s affidavit does not create a question of fact and partial summary judgment is entered regarding the following CPT codes:
A. 99203: Plaintiff Charged:$200.00
Defendant’s Allowed Amount:$142.00
Dr. Bennett’s Affidavit:$150.00
Therefore, the plaintiff is entitled to partial summary judgment for the $8.00 difference between what was then allowed by the defendant and what the defendant now says is reasonable.
B. 97010: Plaintiff Charged:$30.00
Dr. Bennett’s Affidavit:$30.00
Therefore, the parties are in agreement as to a reasonable charge and the plaintiff is entitled to partial summary judgment.
C. 97014: Plaintiff Charged:$30.00
Dr. Bennett’s Affidavit:$30.00
Therefore, the parties are again in agreement as to a reasonable charge and the plaintiff is entitled to partial summary judgment.
D. 97012: Plaintiff Charged:$30.00
Dr. Bennett’s Affidavit:Silent
Therefore, the plaintiff is entitled to partial summary judgment because there is nothing creating a question of fact.
13. As there is no question of fact, the plaintiff is entitled to partial summary judgment as a matter of law regarding the billing set forth in paragraph 12 above. However, as the personal injury protection benefits have been exhausted, the plaintiff is only entitled to recover interest on the past due amounts from the date that the defendant received the subject bills to the date of exhaustion (i.e., August 21, 2003) and the statutory penalties.
14. The court, therefore, enters partial summary judgment in favor of the plaintiff and against the defendant as a matter of law finding and adjudging that (1) except for CPT 99203, the plaintiff is entitled to partial summary judgment as a matter of law regarding the billing set forth in paragraph 12 above as the charges are usual, customary, and reasonable for the stated dates of service and the health care services rendered; (2) as to CPT 99203, the plaintiff is entitled to partial summary judgment for the $8.00 difference between what was then allowed by the defendant and what the defendant now says is reasonable; (3) the health care services rendered at St. Germain Chiropractic, P.A., to Susan O’Berry were reasonable, related, and necessary for injuries sustained in the motor vehicle accident of July 8, 2002; (4) the plaintiff, due to the exhaustion of benefits, is entitled to recover interest on the past due amounts from the date that the defendant received the subject bills to the date of exhaustion (i.e., August 21, 2003); (5) that the statutory interest rate for 2002 was 9% and 6% in 2003; and (6) the plaintiff is entitled to recover attorney’s fees, paralegal fees, and costs pursuant to sections 627.736, 627.428, 57.104, and 57.041, Florida Statutes.
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