14 Fla. L. Weekly Supp. 83b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Affidavit and report by peer review physician filed in opposition to medical provider’s motion for summary judgment on reasonableness, relatedness and necessity of MRIs was not valid report where report was not supported by physical examination of insured and was not prepared prior to denial of benefits — Requirement to obtain report from like physician applies when benefits are withdrawn as well ass when benefits are denied at the outset
SOUTH FLORIDA OPEN MRI, a/a/o SANDRA LOPEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 04-6955 SP 26 03. October 26, 2006. George A. Sarduy, Judge. Counsel: Stuart L. Koenigsburg, Miami. Majid Vossough, Coral Gables.
ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF AS TO REASONABLE RELATED AND NECESSARY
THIS CAUSE came before the Court on July 20, 2006, upon Plaintiff’s Motion for Summary Judgment. The Court, after carefully considering the arguments of the attorneys, and after examining all pertinent pleadings, affidavits and other matters of record in regard to the Motion makes the following findings and legal rulings.I. Procedural History and Facts
1. This action arises from an automobile accident which is alleged by Plaintiff to have occurred on February 22, 2003.
2. At the time of the accident, assignor, Sandra Lşpez, was insured by Defendant’s No-Fault insurance policy.
3. Ms. Lşpez assigned her rights to benefits under the insurance policy to Plaintiff, South Florida Open MRI, for treatment rendered by South Florida Open MRI for injuries allegedly caused by the automobile accident.
4. The bills at issue are for magnetic resonance imaging (“MRI”) tests of Ms. Lşpez’s cervical and thoracic spine, performed by South Florida Open MRI on May 6, 2003.
5. The bills for the MRI tests were sent via certified mail and received by Defendant on June 2, 2003.
6. Plaintiff filed suit on September 9, 2004, and its Motion for Summary Judgment on June 10, 2005.
7. On July 18, 2006, Defendant filed the affidavit of Marvin J. Merrit, D.C., dated July 18, 2006, with an attached “Peer Review” dated June 17, 2005.
8. On July 20, 2006, the Court heard Plaintiff’s Motion for Summary Judgment. However, due to time constraints, the Court only heard argument as to reasonable, related and necessary and therefore, Plaintiff’s Motion for Summary Judgment is treated as a motion for partial summary judgment.
II. Standard for Summary Judgment
Upon Motion for Summary Judgment, the movant has the burden of conclusively demonstrating the non-existence of any genuine issue of material fact. Moore v. Moore, 475 So. 2d 666 (Fla. 1985); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Fla. R. Civ. P. 1.510. When the moving party tenders sufficient evidence to support its motion for summary judgment, then the opposing party must come forward with counter-evidence sufficient to create a genuine issue of material fact. DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986). If the opposing party fails to come forward with a sufficient affidavit or other proof in opposition to the motion, the court may enter summary judgment if the moving party has established a prima facie case. Latour v. Stromerg-Carlson Leasing, 335 So. 2d 600 (Fla. 3rd DCA 1976).
III. Plaintiff’s Burden of Proof
Plaintiff has the burden of proving that the services rendered to Ms. Lşpez were reasonable, related and necessary. Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998). Plaintiff established its prima facie case by filing the affidavits of Barbara Falcon and Mark A. Silverman, D.C. In an effort to create an issue of fact, Defendant filed the affidavit of Marvin J. Merrit, D.C., with an attached “Peer Review.”IV. Requirements of Fla. Stat. §627.736(7)(a) (2001)
Section 627.736(7)(a), Florida Statutes (2001), sets forth the procedure that must be followed by an insurer before it may withdraw payment for treatment rendered to an insured based on the reasonableness, relatedness or necessity of the treatment. The statute provides, in pertinent part:
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.
Florida courts have interpreted Section 627.736(7)(a) to require an insurer to first obtain a report by a like physician before withdrawing, denying or reducing benefits on the grounds that the services were not reasonable, related or necessary. See, United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3rd DCA 1998); rev. den., 735 So. 2d 1289 (Fla.1999) (“an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective.”); Progressive Express Ins. Co. v. Quality Diagnostic, Inc. a/a/o Dora Batista, Case No.: 05-052, (Fla. 11th Circuit Court, Appellate Division, March 28, 2006) (“[t]he Viles case clearly stands for the proposition that §627.736(7)(a) applies in instances where the insurer either ‘withdraws, denies or reduces’ medical treatment.”).V. Affidavit and Attached Peer Review by Dr. Merrit
The Court declines to consider the affidavit and “Peer Review” report of Dr. Merrit for several reasons. First, the report is deficient pursuant to Section 627.736(7)(a) and Florida case law interpreting same, since it was not prepared before Defendant denied benefits, but rather, two years later.
Second, the report is not valid, as required by Section 627.736(7)(a). As quoted above, Section 627.736(7)(a) provides that an insurer may not withdraw benefits, absent consent of its insured, without first obtaining a valid report from a like physician. 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 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.
(Emphasis added).
Florida courts have consistently held that “legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2002); Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000). Similarly, statutes are to be given their plain and obvious meaning, and courts should assume that the legislature knew the plain and ordinary meaning of the words when it chose to include them in the statute. Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000). Where the wording of a statute is clear and amenable to a logical and reasonable interpretation, “a court is without power to diverge from the intent of the legislature as expressed in the plain language of the Law.” Rodriguez, 808 So. 2d at 85.
When examining the plain meaning of Section 627.736(7)(a), it is clear that the word “and” before the phrase “factually supported by the examination” evidences the legislature’s intent that a record review by a non-treating physician must be supported by a physical examination. Any doubt as to the legislature’s intent is immediately removed upon a reading of the Senate Staff Analysis and Economic Impact Statement, dated March 26, 2001. There, the Florida legislature explains the effect of relevant changes to Section 627.736(7)(a) as they relate to the requirement of a valid report:
The effect of this provision is to help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.
Nowhere in his affidavit or report does Dr. Merrit reference that his peer review was supported by the physical examination of Ms. Lşpez as required by Section 627.736(7)(a), in conjunction with the Senate Staff Analysis and Economic Impact Statement. Accordingly, the Court strikes the report as not being valid as required by Section 627.736(7)(a) before withdrawing benefits, in the absence of the insured’s consent.
VI. Interpretation of Viles
Defendant argues that Section 627.736(7)(a), and the Third District’s interpretation under Viles apply only when benefits are withdrawn rather than denied from the outset. However, Judge Platzer addressed this very issue in her well reasoned opinion in Batista. There, Judge Platzer noted that “the Viles case clearly stands for the proposition that §627.736(7)(a) applies in instances where the insurer. . .denies . . . medical treatment.” (Emphasis added).
In addition, to accept Defendant’s argument would encourage insurers to deny all claims so as to circumvent the requirements of the statute. This would be an unreasonable interpretation of the legislature’s intent. In Florida, it is well settled that the interpretation of a statute which leads to an unreasonable conclusion or result obviously not designed by the legislature will not be adopted. Koile v. State, 934 So. 2d 1226 (Fla. 2006); Drury v. Harding, 461 So. 2d 104 (Fla. 1984); Palm Springs Gen. Hosp., Inc. v. State Farm Mut. Auto. Ins. Co., 218 So.2d.793 (Fla. 3rd DCA 1969), aff’d, 232 So. 2d 737 (Fla. 1970); City of St. Petersburg v. Siebold, 48 So. 2d 291 (Fla. 1950); Allied Fidelity Ins. Co. v. State, 415 So. 2d.109 (Fla. 3rd DCA 1982).
Accordingly, it is therefore
CONSIDERED, ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment as to reasonable, related and necessary is hereby GRANTED.
