14 Fla. L. Weekly Supp. 624a
Insurance — Personal injury protection — Coverage — Medical expenses — Failure to obtain reasonable proof within 30 days — PIP statute does not require insurer to obtain medical report within 30 days of notice of claim to dispute reasonableness, relatedness or medical necessity of treatment — Peer review — Error to hold that affidavit that alleges doctor “performed review of medical records … known as peer review” was based on conclusions not facts — Affidavit is sufficient despite failure to attach medical records where records were filed in case, and peer review report attached to affidavit referenced records in detail — Error to enter summary judgment in favor of medical provider
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP (a/a/o Raquel Guitierrez), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-221 AP & 06-427 AP. L.C. Case No. 04-2495 SP 25. May 7, 2007. On appeal from the County Court, Miami-Dade County, Schwartz, Jacqueline, J. Counsel: Michael J. Neimand, Office of the General Counsel for United Automobile Insurance Company, for Appellant. Mari Sampedro-Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before ESQUIROZ, CARDONNE ELY, COHEN LANDO, JJ.)
(COHEN LANDO, Judge.) This is an appeal of a summary judgment order entered by the County Court in Miami-Dade County. The Appellee, Professional Medical Group, Inc., a/a/o Raquel Gutierrez (“Professional”), filed a breach of contract suit against the Appellant, United Automobile Insurance Company (“United Auto”), for failure to submit payment on a Personal Injury Protection (“PIP”) claim. During the course of the litigation, Professional filed a ‘Motion for Partial Summary Judgment as to Liability and/or Reasonableness, Relation, and Medical Necessity.’ In its motion, Professional claimed that United Auto was precluded from defending any issue as to the reasonableness, necessity, and relatedness of the medical bills since it failed to provide a medical report within 30 days of notice of its claim.
In opposition to the above motion, United Auto relied on its ‘Affidavit of Peter Millheiser, M.D.’ which it submitted prior to Professional’s partial summary judgment motion. The lower court entered an Order Granting Professional’s partial summary judgment motion because: (a) United Auto’s peer review of Dr. Millheiser failed to comply with §627.736(7)(a), Fla. Stat. (2004) because it was filed 30 days past United Auto’s first written notice of the medical bills claims; and, (b) Dr. Millheiser’s affidavit did not comport with Florida Rules of Civil Procedure 1.510(e) in that it failed to state upon which facts it was based and failed to include the medical records, thus rendering the affidavit conclusory. Professional submitted its ‘Ex-Parte Motion for Entry of Final Judgment as to the Liability of Medical Bills.’ Thereafter, the lower court entered ‘Final Judgment’ in favor of Professional. Subsequently, this appeal ensued.
The standard of review for a lower court’s order granting summary judgment is de novo. Lander v. Smith, 906 So. 2d 1130, 1132 (Fla. 4th DCA 2005). To analyze summary judgment properly this court must determine (1) whether there is a genuine issue of material fact, and (2) whether the trial court correctly applied the rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 163-164 (2006 ed., West 2005).
The first prong of summary judgment review requires this court to determine whether there exists a genuine issue of material fact. While United Auto’s first issue on appeal indicates that a genuine issue of material fact exists, the substance of its argument focuses on the second prong of summary judgment review, misapplication of the law. Therefore, this court need not consider the first prong of summary judgment review.
The second prong of summary judgment review requires this court to determine whether there was a misapplication of the law. The lower court decided not to consider the peer review of Dr. Millheiser based on § 627.736(7)(a), Fla. Stat. (2004). The transcript of the motion for summary judgment indicates that the lower court believed that a peer review/medical report was required within 30 days of the insurer’s first written notice of a medical claim in order to refute the reasonableness, necessity, and relatedness of the medical bills. United Auto argues that the lower court’s interpretation of §627.736(7)(a) is not supported by case law and as such, should be reversed.
A plain reading of §627.736 indicates that the statute is devoid of any requirement which requires an insurer to submit a medical report/peer review in 30 days of the notice of claim in order to dispute the reasonable, necessary, and relatedness of a medical claim. Rather, §627.736 promulgates that an insurer must obtain a medical report stating that the medical treatment was unreasonable, unnecessary, and unrelated in order to withdraw medical benefits. A medical report is required to withdraw payment of benefits. United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998). Therefore, the lower court misapplied the law when it entered an order finding that the medical report/peer review does not comport with §627.736(7)(a), Fla. Stat. (2004) because it was filed 30 days past United Auto’s first written notice of this medical bills claims. Accordingly, we reverse.
Affidavit. The lower court’s order also held that the affidavit submitted by Dr. Millheiser failed to comply with the requirements of Fla. R. Civ. P. 1.510(e) since it did not state which records were reviewed nor were the records incorporated by reference or attached to the affidavit. Florida Rule of Civil Procedure 1.510(e) states in its entirety:
“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.”
Moreover, the lower court also held that the affidavits were based on conclusions, not facts. A review of the record indicates that Dr. Millheiser alleged in number 3 of his affidavit that “on April 30, 2004, I performed a review of the medical records of the treatment rendered to Raquel Guitierrez. This review is also know[n] as a ‘Peer Review’.” We find that the review was sufficient to comply with the statutory requirements.
Next, we turn to the lower court’s finding that the affidavit failed to reference or incorporate the reviewed records. United Auto argues that the previously filed medical records and the doctors’ reference to the records in the peer review were sufficient to survive summary judgment. A review of the records, of the case at bar, indicates that the medical records were filed by Professional on January 10, 2006. Furthermore, the record reveals that the peer review, which was attached to the affidavit, referenced the medical records in explicit detail. There is no confusion as to the identity of each of the above mentioned medical records. Therefore, the lower court should have declined to enter a summary judgment order on this issue. See Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958).
If Professional prevails upon remand, then it will be entitled to trial and appellate attorney’s fees and costs pursuant to §627.428, Fla. Stat. (2006).
FOR THESE REASONS, the summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (ESQUIROZ, CARDONNE ELY, JJ. concur.)
