14 Fla. L. Weekly Supp. 888a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Opinion of doctor who performed independent medical examination that no further treatment would be reasonable, related or necessary fails to create genuine issue of material fact as to medical services rendered prior to IME — Although IME report would appear to create issue of material fact as to reasonableness, relatedness and necessity of treatment after date of IME, insurer waived right to suspend benefits as of date of IME by not notifying medical provider of intent to suspend until 4 months after treatment ended, nearly 6 months after IME — Affidavit of doctor who conducted peer review also fails to create genuine issue of material fact on reasonable, related and necessary issue because peer review that is based on review of incomplete records and not supported by examination of insured is not valid report — Further, insurer cannot create genuine issue of fact through IME report and peer review that contradict each other — Summary judgment entered in favor of provider
PALM REHABILITATION, INC. a/a/o Jose Quintanilla, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in Miami-Dade County, Civil Division. Case No. 06-13184 SP 25 (2). June 28, 2007. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead. Karen Trefzger.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, PALM REHABILITATION, INC. a/a/o Jose Quintanilla’s, Motion for Summary Judgment, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law in the issue of reasonable, related and medically necessary.
FINDINGS OF FACT
2. The Plaintiff sued the Defendant on 7/21/06 alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on 1/9/06.
3. The Plaintiff sued the Defendant for medical expenses in the amount of $7,799.00 for services provided 1/9/06 through 3/13/06.
4. On 3/2/07, the Defendant filed its Answer and Affirmative Defenses. (See Order dated 3/1/07).
5. As the Defendant’s first affirmative defense, it alleges the medical bills allegedly incurred by Plaintiff were not reasonable for the services rendered in that the charges were billed higher than those customarily charged in the community for similar services. Additionally, Defendant states the medical expenses incurred by the Plaintiff were not reasonable, related or necessary in that the treatment was excessive both in amount of treatment and in amount charged for the services. Therefore, Defendant had reasonable proof it was not responsible for payment of the subject bills in that expenses were not reasonable, related or necessary; accordingly, payment of said bills is not overdue.
6. As the Defendant’s second affirmative defense, it alleges it denied payment for medical expenses incurred, including diagnostic tests, as not being reasonable, related and/or necessary based on the opinions of Dr. Joseph Marfisi, D.C., and Dr. Marvin Merrit, D.C.
7. The Plaintiff filed affidavits of the treating physician, Dr. Charles Isidore, D.C. and the records custodian, Armando Herrera. The affidavit of Dr. Isidore established that he was the treating physician, he performed an initial examination of Jose Quintanilla, arrived at a diagnosis, ordered therapy outlined in his affidavit, and all of the treatment was related to the subject accident, reasonable and medically necessary and that the charges were reasonable, usual and customary in the community based on his experience in the community, as well as conferring with other providers in the area and his experience with what insurers are reimbursing for the subject medical expenses.
8. The Plaintiff also filed the deposition of the litigation adjuster Juan Reyes in support of its Motion for Summary Judgment. As stated in the deposition, the subject IME occurred on 2/8/06, however, United did not notify the claimant it decided to suspend chiropractic benefits until 7/26/06, over four months after the claimant’s treatment ended and nearly six months after the IME.
9. The Defendant filed two (2) affidavits in opposition to the Plaintiff’s motion.
10. The Defendant filed the Affidavit of Dr. Joseph Marfisi, D.C., who performed an IME on 2/8/06 and determined that no further treatment for the injuries sustained in the motor vehicle accident would be reasonable, necessary or related.
11. The Defendant also filed the Affidavit of Dr. Marvin Merrit, D.C., who conducted a peer review of Jose Quintanilla on 8/12/06. Dr. Merrit stated that he reviewed various documents outlined in his affidavit, however, there was no report of the initial evaluation. According to the doctor, since this documentation was not provided, there is “insufficient documentation to substantiate the medical necessity for chiropractic treatment rendered to this patient in regards to the motor vehicle accident.” It was Dr. Merrit’s “recommendation to deny payment for chiropractic treatment in regards to the motor vehicle accident of 1/9/06.”
12. The Plaintiff filed a Motion to Strike the Peer Review requested that this Court refuse to consider Dr. Merrit’s opinion on the basis that his alleged peer review was not a valid report and the affidavit was legally insufficient in many respects.
ISSUES OF LAW
13. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
14. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
15. The Defendant has failed to establish that it had reasonable proof that it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b). The Defendant is instead relying on the opinions of an IME doctor and Peer Review doctor.
16. In order for the insurer to withdraw “past or future” personal injury protection insurance benefits, it must comply with §627.736(7). If the insurer fails to obtain a “valid” report for a physician in the same licensing chapter as the treating physician, it cannot withdraw payment pursuant to Florida Statutes § 627.736(7) (“An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.”). A “valid” report is defined as follows: “. . . one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” Fla. Stat. § 627.736(7)(a).
17. Dr. Marfisi performed an IME on 2/8/06 which stated that no further treatment would be reasonable, related or necessary, however, Dr. Marfisi’s opinion failed to address any services rendered prior to that date. Therefore, Dr. Marfisi’s opinion fails to create a genuine issue of material fact for medical services rendered prior to 2/8/06 on the issue of reasonable, related and necessary.
18. Although it appears that Dr. Marfisi’s opinion would create a genuine issue of material fact for medical services rendered after 2/8/06 on the issue of reasonable, related and necessary, the Defendant waived its right to rely on the date of the IME as it failed to notify the claimant of its decision to suspend further benefits based upon its own conduct. Alzate v. United Auto. Ins. Co., 11 Fla L. Weekly Supp. 878a (Fla. 11th Jud. Cir. 2004); Tiedtke v. Fidelity & Casualty Co. of New York, 222 So. 2d 206 (Fla. 1969).
19. The subject IME occurred on 2/8/06. However, the Defendant did not notify the claimant it decided to suspend chiropractic benefits until 7/26/06, over four months after the claimant’s treatment ended and nearly six months after the IME. (See deposition transcript of Juan Reyes taken on 1/10/07, p. 7, 1. 10-17).
20. The Defendant is also equitably estopped from suspending benefits as of the date of the IME.
21. Dr. Merrit’s opinion in his affidavit also fails to create a genuine issue of material fact on the issues of reasonable, related and necessary. The “peer review” referenced in his affidavit is not a valid report pursuant to Fla.Stat. 627.736(7)(a). Further, the peer review is fatally flawed inasmuch as the reviewing doctor’s opinion is premised on incomplete medical records by his own testimony. Dr. Merrit’s “recommendation” to deny payment for chiropractic treatment for all treatment contradicts Dr. Marfisi’s opinion wherein he states that no “further” treatment after 2/8/06 would be reasonable, related and necessary.
22. Dr. Merrit failed to examine the claimant nor did he indicate the treatment records he reviewed were complete. Therefore, his opinion cannot be considered by this Court in opposition to the motion on the issue of reasonable, related and necessary. United Automobile Ins. Co. v. Weschel Pain & Rehab, Inc., a/a/o Maria Posada, 12 Fla. L. Weekly Supp. 1035a (Fla. 17th Jud. Cir., Opinion dated July 19, 2005); United Auto. Ins. Co. v. Damadian MRI in Pompano, PA, d/b/a Stand-Up MRI of Ft. Lauderdale, a/a/o Khooblall Dwarika, (Fla. 17th Jud. Cir., Case No.: 04-15205 CACE 08, November 30, 2005) [13 Fla. L. Weekly Supp. 244a].
23. United Auto cannot use a peer review opinion which does not comport with the “valid report” requirements of § 627.736(7)(a) as a legal means to deny, withdraw or not pay the subject medical expenses, because it does not comport with United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3rd DCA 1998) (See Progressive Express Ins. Co. v. Quality Diagnostic Inc. a/a/o Dora Batista)(Fla. 11th Cir. App. Case No: 05-052); United Auto. Insur. Co. v. Andrade, (Fla. 11th Cir. App., Case No.: 06-62/06-294 AP; Opinion filed December 6, 2006).
24. Moreover, Dr. Merrit did not conclude the subject treatment was not reasonable, related or necessary based upon the substantive findings contained in the medical records he reviewed. The sole basis provided in Dr. Merrit’s peer review to support his recommendation to deny payment for the subject services is because he was not provided a copy of the initial report for date of service 1/9/06. The affidavit states in pertinent part:
“In reviewing documentation presented, there was no report of this evaluation and management service. . .since this documentation was not provided, there is insufficient documentation to substantiate the medical necessity for chiropractic treatment rendered to patient in regards to the motor vehicle accident of 1/9/06.”
25. The peer review (dated 8/12/06) contradicts Dr. Marfisi’s IME report and findings (dated 2/8/06).
26. Dr. Marfisi stated in the “Summary and Conclusions” section in the IME report: “It is my opinion that based on the examinee’s history and examination findings no future chiropractic care, treatments, examinations and diagnostic studies are reasonable, related or necessary for the M.V.A.”
27. The Defendant suspended chiropractic benefits via a suspension letter dated 7/26/06 for chiropractic services rendered after 2/8/06. (See deposition transcript of Juan Reyes taken on 1/10/07 and filed with Court).
28. The Defendant should not benefit (i.e. create a genuine issue of material fact) by filing documents which contradict each other in order to avoid a summary judgment. Ellison v. Anderson, 74 So.2d 680 (Fla. 1954); Kramer v. Landau, 113 So.2d 756 (Fla. 3rd DCA 1959); Inman v. The Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3rd DCA 1977) (“a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.” at 1070); Professional Medical Group, Inc., a/a/o Albert Martinez v. United Auto. Insur. Co., Case No. 04-8616 SP 25 (Order dated 3/23/05).
29. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2nd DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2nd DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992). It has failed to do so in this case.
30. The Defendant does not have any basis under its contract or § 627.736(4) or (7) to establish that it is not responsible for the medical expenses in the amount of $7,799.00 for services provided 1/9/06 through 3/13/06.
31. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Jose Quintanilla, and submitted to UNITED AUTOMOBILE by the subject provider, Palm Rehabilitation, and the Defendant’s failure to pay the Plaintiff’s medical bills at full 80% pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
32. The Plaintiff has complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgment as a Matter of Law regarding payment of the subject bills at 80% minus the deductible plus interest from 30 days after receipt of each bill up to and including the present.
33. The Plaintiffs are entitled to Final Summary Judgment in the amount of $7,799.00 at 80% plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
34. The Plaintiff shall submit a Final Judgment accordingly.
35. The Court finds that the Plaintiff is entitled to attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly.
