13 Fla. L. Weekly Supp. 244a
Insurance — Personal injury protection — Summary judgment — Evidence — Peer review — No abuse of discretion in excluding peer review report from consideration on motion for summary judgment where there is no indication that physician who prepared report actually examined insured or reviewed complete treatment records or that physician met record keeping requirements of section 627.736(7)(a) — Further, insurer has failed to demonstrate report would be admissible as affidavit where record fails to indicate that it was made under oath or that records referenced therein were authenticated and attached
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. DAMADIAN MRI IN POMPANO, P.A., d/b/a STAND-UP MRI OF FT. LAUDERDALE, a/a/o Khooblall Dwarika, Appellee(s). Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-15205 CACE 08. November 30, 2005. Counsel: Michael J. Neimand. Dean A. Mitchell.
OPINION
(J. LEONARD FLEET, J.)THIS CAUSE comes before the Court upon Appellant’s, United Automobile Insurance Company (hereinafter “United Automobile”), appeal of the Order granting Final Judgment. The Court having considered the matter, reviewed relevant law and being otherwise advised in the premises, affirms the ruling of the trial court for the following reasons.
Appellee, Damadian MRI in Pompano, P.A., d/b/a Stand-Up MRI of Ft. Lauderdale, as Assignee of Khooblall Dwarika, (hereinafter “Damadian”), filed suit against United Automobile for breach of contract of Personal Injury Protection benefits arising from injuries following an October 26, 2002 automobile accident. On May 10, 2004 Damadian filed a Motion for Summary Disposition. At the June 16, 2004 hearing on this Motion, United Automobile indicated it would file an affidavit of its adjuster with an attached peer review. The trial court refused to consider the affidavit and the peer review, and granted partial summary disposition in favor of Damadian on the issue of medical necessity. The record indicates the peer review, dated March 14, 2004, was filed two days after the hearing on June 18, 2004. As reasonableness of the MRI charge was not at issue, the case was tried before a jury on the sole issue of relatedness. After both sides rested, Damadian moved for a directed verdict, which was granted. A Final Judgment in favor of Damadian was entered, and this appeal timely followed.
The standard of review on the exclusion of evidence is abuse of discretion. Sexton v. State, 697 So.2d 833 (Fla. 1997). A judgment shall not be reversed on the improper rejection of evidence unless, after an examination of the case in its entirety, a miscarriage of justice has occurred. §59.041, Fla. Stat. (2004).
United Automobile’s sole point on appeal is the trial court abused its discretion by excluding the peer review from consideration on the Motion for Summary Disposition. United Automobile argues such exclusion was improper since the peer review contained a non notarized verification and was signed by a physician, Dr. Merritt, who stated under oath the report was true and represented his own evaluation.
However, the key issue is not whether the peer review was verified, rather the issue is whether the report complied with the relevant statutory provisions of Section 627.736(7)(a), Florida Statutes and would be admissible in evidence.
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 and is factually supported by the examination and treatment records if reviewed. . .The physician preparing the report must be in active practice [as further defined by the statute and] shall maintain, for at least 3 years, copies of all examination reports as medical records. . . and records of all payments for the examination and reports.
§627.736(7)(a), Fla. Stat. (2004).
In the instant case, the record fails to indicate whether Dr. Merrit actually examined the patient or reviewed his complete treatment records. There has also been no indication Dr. Merrit meets the record keeping requirements set forth in Section 627.736(7)(a).
Additionally, United Automobile has failed to demonstrate the peer review would be admissible in evidence in the form of an affidavit. Affidavits filed in opposition to summary judgment must set forth facts as would be admissible in evidence, must show the affiant is competent to testify and must attach sworn or certified copies of all papers referenced therein. Fla.R.Civ.P. 1.510(e); Bifulco v. State Farm Mutual Automobile Insurance Co., 693 So.2d 707 (Fla. 4th DCA 1997). Here, the review cannot be properly treated as an affidavit admissible in evidence since the record fails to indicate the review was made under oath or the records referenced therein were authenticated and attached. In light of the aforementioned considerations, there was no abuse of discretion on the part of the trial court in excluding the peer review from consideration. Accordingly, it is hereby
ORDERED AND ADJUDGED the trial court’s Order granting Final Judgment is AFFIRMED.
