14 Fla. L. Weekly Supp. 1020a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Although trial court that entered summary judgment in favor of medical provider on claim for MRI may have erred in not considering affidavit of physician who performed independent medical examination because IME was performed more than 30 days after submission of claim, summary judgment is affirmed because affidavit that focused on treatment and services rendered after MRI did not create genuine issue of material fact as to whether MRI was reasonable, related or necessary
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. OPEN MRI OF MIAMI DADE, LTD., a/a/o DIONISIO PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-381 & 06-581 (Consolidated). L.C. Case No. 2004006498 SP 26. September 5, 2007. On appeal from Final Summary Judgment by the County Court of the Eleventh Judicial Circuit of Miami-Dade County. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Mari Sampedro-Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before Roberto M. Pineiro, Kevin M. Emas, and Ivan F. Fernandez, JJ.)
(PER CURIAM.) DIONISIO PEREZ (“PEREZ”) was involved in an automobile accident on December 30, 2003. Following the accident, Dr. Marucci treated PEREZ and recommended an MRI. On January 29, 2004, PEREZ underwent an MRI at OPEN MRI OF MIAMI-DADE (“OPEN MRI”). OPEN MRI sought payment from PEREZ’s PIP insurer, UNITED AUTOMOBILE INSURANCE COMPANY (“UNITED AUTO”) for the January 29, 2004, MRI. UNITED AUTO refused payment of the bill and this lawsuit ensued.
In June 2006 the trial court held a hearing on OPEN MRI’s motion for summary judgment. The sole issue before the court was the reasonableness, relatedness and necessity of the January 29, 2004, MRI. No other bill or treatment was at issue. In support of its claim, OPEN MRI filed an affidavit of Dr. Marucci, which provided several adequate reasons for prescribing the January 29, 2004, MRI following the December 30, 2003, accident.
In opposition to the motion for summary judgment, UNITED AUTO filed the affidavit of Dr. Luis Castillo. At the summary judgment hearing, OPEN MRI argued that the trial court should not consider the affidavit of Dr. Castillo because Dr. Castillo’s independent medical examination (IME), upon which the affidavit was based, was performed more than 30 days after the claim was submitted.1 The court did not consider Dr. Castillo’s affidavit and granted summary judgment for OPEN MRI.
This Court reviews the grant of summary judgment de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). Although the trial court may have erred in not considering the affidavit of Dr. Castillo, that affidavit does not create a genuine issue of material fact, and therefore we find no error in the granting of OPEN MRI’s motion for summary judgment. “The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used. Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999); Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979).
The affidavit of Dr. Marucci established that the January 29, 2004, MRI was reasonable, related and necessary. The burden then shifted to UNITED AUTO to present some evidence to create a genuine issue of material fact regarding that particular MRI. UNITED AUTO attempted to do this by presenting the affidavit of Dr. Castillo. Dr. Castillo’s affidavit, however, does not, in a legally sufficient manner, contradict or challenge Dr. Marucci’s opinion that the January 29, 2004, MRI was reasonable, related or necessary. Rather, Dr. Castillo’s affidavit focuses on treatment or services rendered following the January 29, 2004, MRI. Castillo’s affidavit provides, in pertinent part:
5. On 01/29/04 an MRI of the Thoracic Spine was performed; a few weeks later an MRI of the cervical spine was performed on 2/25/04.
6. As reported in the past medical history in Dr. Marucci’s records, Mr. Perez had a slip and fall accident 4 months prior to the motor vehicle accident in question and a herniated nucleus pulposus by history was reported.
7. It is my opinion that the positive results of the thoracic MRI, was a result of a pre-existing condition and it is not causally related to the motor vehicle accident of 12/20/03.
8. It is my opinion the MRI of the cervical spine done on 2/25/04 was unnecessary and it should be denied for payment for the following reasons:
a. No subjective complaint of radiculopathies or paresthesias were present. Throughout the entire records there was no mention of cervical radiculopathies until the final examination report.
b. There were no objective finding to substantiate the need for an MRI of the cervical spine. The neurological component of the examination states that the deep tendon reflexes were normal and symmetric, there was no evidence of motor loss in the upper and lower extremities and finally no sensory deficits were found in the upper and lower extremities.
9. Throughout the entire record there is mention of acceptable progress towards resolution of the chief complaint. This corroborates the fact that there was no need to resort to such diagnostic studies, since improvement was being shown.
10. Due to the overwhelming lack of clinical findings which would have conveyed a medical necessity for these diagnostic studies, these procedures were not reasonable, related, or medically necessary.
Castillo’s affidavit fails to create a genuine issue of material fact regarding whether the January 29, 2004, MRI was reasonable, related or necessary.2 While Dr. Castillo does opine that the results of that MRI led him to conclude that the injuries were the product of a preexisting condition, this opinion would be relevant to whether treatment or services subsequent to the January 29, 2004, MRI were reasonable, related, or necessary, not the reasonableness, relatedness or necessity of the MRI itself.3
Therefore, this Court need not reach the question of the timeliness of Dr. Castillo’s affidavit (or the timeliness of the underlying IME); even if the trial court had considered Dr. Castillo’s affidavit, summary judgment would have been proper. Because the sole affidavit filed in opposition to the motion for summary judgment fails to address in a legally sufficient manner the reasonableness, relatedness and necessity of the January 29, 2004, MRI, there is no genuine issue as to that material fact and OPEN MRI was entitled to judgment as a matter of law.
AFFIRMED.
Attorneys’ fees are awarded to Appellee pursuant to §627.428, Fla. Stat., and the cause REMANDED for a determination of the amount. (KEVIN M. EMAS, ROBERTO M. PINEIRO and IVAN F. FERNANDEZ, JJ., CONCUR.)
__________________
1Relying upon Fla. Stat. §627.736(4)(b), OPEN MRI contends that any evidence relied upon by an insurer to deny a PIP claim must be obtained within 30 days after notice of the claim is submitted to the insurer.
2In stark contrast to the fact-specific allegations in paragraph eight of the affidavit, the assertions in paragraphs nine and ten amount to little more than a conclusory opinion on an ultimate issue without any supporting facts. These so-called “net opinion” affidavits are legally insufficient. See Charlonne v. Rosenthal, 642 So. 2d 632, 635 n.2 (Fla. 3d DCA 1994); North Broward Hosp. Dist. v. Royster, 544 So. 2d 1131 (Fla. 4th DCA 1989); Gruber v. Mt. Sinai Hospital, 487 So. 2d 76 (Fla. 3d DCA 1986).
3In fact, the January 29, 2004, MRI, was certainly reasonable and necessary because without it there would not have been a determination that the injuries were the result of a pre-existing condition. The MRI was certainly related because it was prescribed as a result of Dr. Marucci’s physical examination (and PEREZ’s subjective complaints) following the December 30, 2003, accident. The fact that another doctor later opines that the injuries are from a pre-existing condition (based on the results of the MRI) does not render the MRI itself “unrelated.”
