14 Fla. L. Weekly Supp. 504b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Summary judgment — Insurer’s affidavits in opposition to motion for summary judgment on reasonableness of amount charged are not sufficient to rebut medical provider’s prima facie case where insurer uses information from third party database to make reasonableness determinations, and claims representatives and consulting actuary who made affidavits and were deposed have no personal knowledge of how calculations are made by third party
SPINE & REHAB MEDICINE, P.A., a/a/o ROSE GIANOTTI, Plaintiff, v. DAIRYLAND INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2006-270. March 23, 2007. Kurt E. Hitzemann, Judge. Counsel: Counsel: Timothy Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. David A. Boulos, Allen, Kopet & Associates, PLLC, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER having come before the Court on the Plaintiff’s Motion for Summary Judgment and the Court having reviewed the file, the pleadings, heard the arguments of counsel and the Court being otherwise fully advised in the premises, finds as follows:
1. The single issue in this case is the reasonableness of the amount charged by Plaintiff for medical services provided to Ms. Gianotti.
2. The Plaintiff has filed two affidavits in support of its Motion for Summary Judgment. The first is from Suhas Kulkarni, M.D., the owner of the Plaintiff and also treating physician of Ms. Gianotti. The second affidavit is that of David P. Kalin, M.D.
3. Dr. Kulkarni’s affidavit states that he is the treating physician, that the charge at issue has been largely unchanged in eight years of practice and that other insurance companies have paid the charge when submitted.
4. Dr. Kahn’s affidavit states that he is a physician licensed to practice in Florida, that he is familiar with the usual and customary charges in the Tampa Bay area, that he has reviewed Ms. Gianotti’s file and that he finds the charges to be reasonable.
5. The Court finds that the Plaintiff’s affidavits are sufficient to meet its burden of proving the absence of a genuine issue of material fact and that the burden to show such a genuine issue of fact shifts to the Defendant. Holl v. Talcott, 191 So.2d 49 (Fla. 1966)
6. The Defendant filed affidavits in opposition to Summary Judgment of Lisa Ann Britt and Darrell D. Spell. In addition the Court file contains the deposition transcripts of Sylvia Hunt Jennings, Rebecca Thorton Murrell and Lisa Ann Britt.
7. Sylvia Hunt Jennings, Rebecca Thorton Murrell and Lisa Ann Britt are claims representatives of the Defendant. Each is familiar to a certain extent with this matter, however, none of these individuals has any personal knowledge of how the Defendant makes a determination as to the reasonableness of a particular charge. Each one of them referred back to information from Mitchell Medical and Ingenix.
8. The Court finds that the Defendant uses information from Ingenix by way of Mitchell Medical to make reasonableness determinations but that no one in the employ of the Defendant understands how that information is generated by Ingenix.
9. Similarly, the Affidavit of Darrell Spell, a consulting actuary, in based, in part, on information provided by Ingenix. Nothing in Mr. Spell’s affidavit suggests that he has any personal knowledge of the methods used by Ingenix.
10. Rule 1.510(e) Fla.R.Civ.P. requires that affidavits in opposition to summary judgment “be made on personal knowledge. . .”
11. None of the Defendant’s affidavits in opposition were made on the personal knowledge of the affiant as to how the calculations are made by Mitchell Medical/Ingenix. As such, the Defendant’s affidavits are not sufficient to rebut the Plaintiff’s prima facia case for summary judgment.
ORDERED AND ADJUDGED that the Plaintiffs Motion for Summary Judgment is GRANTED.
