14 Fla. L. Weekly Supp. 132a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Opposing affidavit — Validity — No error in entering summary judgment in favor of medical provider where affidavit and peer review report filed in opposition to motion did not comport with statutory requirements that they be based upon examination of patient or factually supported by examination and treatment records and prepared by physician in active practice
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. JUANA ANDRADE, as parent and guardian of EVELYN ANDRADE, a minor, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-062/06-294 AP. L.T. Case No. 05-999 (CC-26). December 6, 2006. An appeal from the County Court in and for Miami-Dade County, Bronwyn C. Miller, J. Counsel: Helaine S. Goodner, for Appellant. Dean A. Mitchell, for Appellee.
(Before GERALD D. HUBBART, VICTORIA PLATZER and ROBERT N. SCOLA, JR., JJ.)
(VICTORIA PLATZER, J.) United Automobile Insurance Company (“United”) appeals the trial court’s order granting summary judgment in favor of Juana Andrade, as parent and guardian of Evelyn Andrade, a minor, (“Andrade”) on the issue of whether the medical bills and treatment Andrade received were reasonable, related and medically necessary. We affirm for the reasons expressed below.
The standard of review of a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo. Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005).
Andrade was insured for personal injury protection benefits under a policy of insurance with United. After an accident involving injury in June of 2003, Evelyn Andrade received treatment from Dr. Judy Jacobs, a chiropractor. Bills for medical treatment, which the insured received from July 1, 2003 to October 9, 2003, were sent to United. The total amount of the bills was $9,657.00. United failed to pay the bills.
Andrade filed suit against United in February 2005 seeking payment of the bills. United claimed that the amounts due and treatment rendered were not reasonable, related or medically necessary. In December 2005, Andrade moved for summary judgment on the issue of reasonable, related and medically necessary. Attached to its motion for summary judgment was the affidavit of Dr. Jacobs attesting that the bills incurred were reasonable, related and medically necessary to the accident of June 26, 2003.
At the time of the hearing on Andrade’s motion for summary judgment, United conceded the issues of related and medically necessary, and as such, the only contested issue was whether the medical bills were reasonable. In response to Andrade’s motion, United submitted the affidavit of Dr. Neil Fleischer, which incorporated a document referred to in the affidavit as a “peer review”. Andrade argued in her motion for summary judgment that United could not contest the bills because United received the bills more than 30 days prior to obtaining a report upon which it was basing its denial. In addition, Andrade argued that even if timely, the report is not a valid report pursuant to Florida Statute 627.736(7)(a), which states in pertinent part:
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. The physician preparing the report must be in active practice. . . .Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records, the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions. . . .
A review of the record indicates that neither the affidavit nor the attached “peer review” comport with the requirements of the statute. There is no indication that Dr. Fleischer either examined the patient or that his review is factually supported by the examination and treatment records. There is no indication that Dr. Fleisher is in active practice as defined by the statute. Simply put, the affidavit submitted by United in response to Andrade’s motion was clearly insufficient to defeat Andrade’s motion for summary judgment in that the report was not valid and therefore not competent evidence which the trial court should consider.
Although the trial court based its order granting summary judgment on what we believe to be a misapplication of Florida Statute 627.736, we nonetheless affirm based upon the “tipsy coachman” doctrine. (“The ‘tipsy coachman’ doctrine allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ as long as there is any basis which would support the judgment in the record.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002), quoting Dade County School Board v. WQBA, 731 So. 2d 638, 645 (Fla. 1999).
The Appellee’s Motion for Appellate Attorneys Fees pursuant to Fla. R. App. P. 9.400(b), Sections 59.46, 627.428 and 627.736(8) is granted and the case remanded to the trial court to fix the amount.
Affirmed; remanded with instructions. (SCOLA, J. concurs.)
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(HUBBART, J., dissenting.) For the reasons stated below, I respectfully dissent from the above opinion.
At the outset, I concur with the majority that the trial court’s reason for rejecting the Appellant’s affidavit in opposition to the Appellee’s motion for summary judgment was incorrect. See United Insurance Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001). It is for that reason that I would reverse and remand for a trial.
The majority, however, states it affirms because the trial court reached the correct conclusion, albeit for the wrong reason. The correct reason was that the affidavit of Doctor Fleisher, submitted in opposition by the Appellant, was effectively a nullity under Section 627.736(7)(a), Fla. Stats. This is so, the majority states, because Doctor Fleisher failed to allege in his affidavit examined the patient or to show how that his findings were factually supported by the examination and treatment records. Additionally, he failed to allege in that affidavit that he was a practicing physician.
There are two problems with the majority’s opinion. First, the basis for its ruling is that in order for the Appellant to defeat the Appellee’s motion for summary judgment, it would have to submit an affidavit of a physician which strictly complies with the requirements of Section 627.736(7)(a), Fla. Stats. Significantly, the majority cites no authority for this proposition. This strikes me as a highly technical requirement to defeat a motion for summary judgment. As Judge Rosemary Barkett noted in her opinion for the Fourth District Court of Appeal in Swift Independent Packing Co. v. Basic Food International, Inc., 461 So.2d 1017 (Fla. 4th DCA 1985):
[W]hen considering such a motion [for summary judgment], the court should take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party. 461 So.2d 1018.
Summary judgment is, after all, in derogation of the constitutional right to a trial. See Holl v. Talcott, 191 So.2d 40, 48 (Fla. 1966).
Given the lack of authority for the majority’s position, I would decide this matter on the usual summary judgment analysis. That is, did the affidavit of Doctor Fleisher submitted by the Appellant contradict the material factual allegations made in the motion? Under that analysis, the motion should have been denied because the affidavit stated that several treatments were unnecessary and that certain charges were excessive.
Second, and more importantly, the majority’s opinion is based on grounds not fully raised or discussed before the trial court. Concerning Section 627.736(7)(a), Fla. Stats., the Appellee argued only that the affidavit was insufficient as a report under the statute because it was not based on an examination of the patient. But a report is also valid under the statute if it is based on an examination of the patient’s records. And Dr. Fleisher alleged in his affidavit that his report was based on just such an examination. In any event, no argument was made that the affidavit was insufficient because it failed to show that Dr. Fleisher’s findings were factually supported by the examination and the treatment records or that the affidavit failed to allege that he was a practicing physician for three years prior to the date of his examination of the records.
The importance of the failure to raise those issues before the trial court is this. Had they been raised, the Appellant may very well have asked for an opportunity to submit an amended affidavit and the trial court would have been required to afford the Appellant that opportunity. In Stephens v. Dichtenmuller, 216 So.2d 448 (Fla. 1968), summary judgment was granted in part because the nonmoving party’s affidavit was deficient. The Supreme Court reversed stating that it was error not to allow the nonmoving party’s ore tenus motion to amend and supplement that affidavit. See also McCoy v. Hoffmeister, 435 So.2d 989 (Fla. 5th DCA 1983), cited with approval in Charlonne v. Rosenthal, 642 So.2d 632 (Fla. 3d DCA 1994), wherein the Court stated:
[S]ummary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit. The deficiency in this case, even if essential, is correctable, and appellants should have been permitted to make the correction. 435 So.2d 990. (Emphasis supplied.)
Any deficiency in the Appellant’s affidavit noted in the majority’s opinion could have been cured by an amended affidavit.
For the above reasons, I respectfully dissent.
