15 Fla. L. Weekly Supp. 1193a
Insurance — Personal injury protection — Declaratory judgment — Physician’s report that is based solely on review of insured’s treatment records and is not supported by physical examination conducted by another physician at request of insurer is not valid report under section 627.736(7)(a) — Objection to admissibility of peer review report is sustained, and summary judgment is entered in favor of medical provider — Question certified
Reversed. 34 Fla. L. Weekly D2216a (United Auto Ins. Co. v. Garrido, Fla. 3DCA, 10-28-09)
EDUARDO J. GARRIDO, D.C., P.A., as assignee of Angelica Rodriguez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 07-2697 CC 26 (2). September 5, 2008. Robin Faber, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of the General Counsel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT; FINAL DECLARATORY JUDGMENT;AND CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE
THIS ACTION came before the Court on August 7th, 2008 on Plaintiff’s motion for final summary judgment on reasonableness, relatedness and necessity; and upon hearing the arguments of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
FINDINGS OF FACT
1. This is an action for declaratory relief pursuant to the Florida Declaratory Judgment Act, Ch. 86, et seq.
2. At all times material, Defendant United Auto. Ins. Co., (hereafter “United”) and Angelica Rodriguez, entered into a contract of insurance for no fault insurance benefits.
3. At all times material, the policy was in full force and effect.
4. The effective dates of the policy are as follows: October 26th, 2006 through October 26th, 2007.
5. The claimant, Angelica Rodriguez, was involved in a motor vehicle accident on or about November 21st, 2007, and suffered personal injuries as a result of said accident.
6. Following said accident, the claimant began a course of chiropractic care with Plaintiff, EDUARDO J. GARRIDO, D.C. P.A.
7. Plaintiff submitted bills to United for reimbursement of personal injury protection benefits for chiropractic services rendered to the claimant.
8. Plaintiff submitted a total sum of $8,245.00 in chiropractic expenses to United for dates of service November 29th, 2006 through March 9th, 2007.
9. United received Plaintiff’s last set of bills on March 31st, 2007.
10. During the time the claimant was under Plaintiff’s care, United did not request the claimant to appear for an independent medical examination.
11. After United refused to pay the medical expenses, Plaintiff filed an action for declaratory relief on May 23rd, 2007 where Plaintiff alleged in the complaint that a bona fide dispute exists between the parties whether the bills constitute a covered loss under the policy — i.e., bills for services that were medically necessary and related.
12. United denied that the bills were reasonable, related and necessary in the answer to the complaint.
13. Plaintiff moved for summary judgment claiming that Plaintiff is entitled to summary judgment because there are no genuine issues of material fact regarding whether the bills in dispute are reasonable, related and necessary.
14. Plaintiff served an affidavit from the treating physician in support of Plaintiff’s motion in which the treating physician states that the care provided to the claimant was medically necessary and related from a chiropractic standpoint.
15. To defeat Plaintiff’s motion for summary judgment, United served an affidavit from Dr. Neil Fleischer D.C., who prepared a report on July 8th, 2008, which was obtained long after the claim was denied and suit commenced.
16. Dr. Fleischer’s report is solely based on his review of the claimant’s treatment records in the present case.
17. Dr. Fleisher did not review a report from another physician who examined the claimant at the request of United since United did not request the claimant to appear for an independent medical examination.
18. According to Dr. Fleischer’s opinion, which is based on his report, some of the treatment rendered by Plaintiff was neither medically necessary nor related.
19. Plaintiff, however, objects to the admissibility of Dr. Fleischer’s opinion on the grounds that Dr. Fleisher’s report is not avalid report under § 627.736(7)(a), Florida Statutes, (2003) where Dr. Fleischer’s report is solely based on his review of the claimant’s treatment records and is not supported by a physical examination of the claimant conducted by a physician at the request of United pursuant to § 627.736(7)(a).FINDINGS OF LAW
20. The moving party on a motion for summary judgment bears the burden of proving the nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The burden of proving the nonexistence of such issues is not shifted to the nonmoving party unless the movant has successfully met his burden. Id. at 43. If the burden is shifted, the nonmoving party may not merely assert that a genuine issue of fact does exist, but must come forth with evidence sufficient to demonstrate an issue of material fact. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences or if it tends to prove issues, then summary judgment is improper. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985).
21. Before deciding whether a genuine issue of material fact exists, the Court must first address Plaintiff’s objection to the admissibility of Dr. Fleischer’s expert opinion.
22. Section 627.736(7)(a), Florida Statutes (2003) states 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. 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).
Plaintiff asserts that a report based on a review of records is invalid under § 627.736(7)(a) unless the report is factually supported by an examination conducted by a physician at the request of the insurer. The Court agrees. Although the physician who prepares a report based on a review of records need not personally examine the insured for the report to be valid, see Bermudez, infra, there must be, at a minimum, an examination conducted by another physician at the request of the insurer to support the review of records. The statute cannot be construed to suggest, as United asserts, that a review of records is valid where the review is solely based on the treating doctor’s records despite the absence of an independent medical examination. Such a conclusion could only be reached if the sentence defining a valid report under § 627.736(7)(a) is read in isolation. See § 627.736(7)(a) (“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 . . . .”) (emphasis added). Further, by reading that sentence in isolation creates an ambiguity because the word ‘examination’ can either mean the examination by the IME physician or treating physician. But United’s analysis of the statute fails because neither the sentence defining a valid report under § 627.736(7)(a) nor the word ‘examination,’ can be read in isolation to determine the intent of the legislature. The Supreme Court in Meile v. Prudential-Bache Securities Inc., 656 So.2d 470, 472 (Fla. 1995) explained that when construing a statute, a word must not be read in isolation, but instead within the context in which the word lies to determine the meaning the legislature intended to ascribe to the word:
“Prudential argues that the definition of “civil action” in Black’s Law Dictionary includes all types of actions other than criminal proceedings. While dictionaries are beneficial in determining the meaning of individual words, we should not “make a fortress out of the dictionary”. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d 325 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Words often take on a different meaning from their individual definitions when viewed in context with the other words in the text. As Judge Learned Hand once observed, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934) aff’d 293 U.S.465, 55 S.Ct., 266, 79 L.Ed. 596 (1935). Moreover, the context in which a term is used may be referred to in ascertaining the meaning of that term. City of Tampa, 445 So.2d at 579-80. Thus, although Prudential contends that the language within other subsections of the statute should not be considered in making our determination, we find that the plain meaning of “civil action” must be derived from the context in which the language lies.”(emphasis added).
See also Jones v. ETS New Orleans Inc., 793 So.2d 912, 914 (Fla. 2001) (“[S]tatutory phrases are not to be read in isolation, but rather within the context of the entire section.”)
23. The Supreme Court’s discussion in Meile concerning how to interpret a word by considering the context in which it is used, requires the Court in the present case to read the word ‘examination’ in § 627.736(7)(a) in the context in which it lies to determine whether the term ‘examination’ refers to the examination by the IME physician or treating doctor. When § 627.736(7)(a) is read as a whole, the word ‘examination’ in the sentence where a valid report is defined refers to the exam by the IME doctor, not the treating doctor because the word ‘examination’ through subpart (7)(a) only refers to the exam by the IME physician:
“(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. Such examination shall be conducted within the municipality where the insured is receiving treatment, or in a location reasonably accessible to the insured, which, for purposes of this paragraph, means any location within the municipality in which the insured resides, or any location within 10 miles by road of the insured’s residence, provided such location is within the county in which the insured resides. If the examination isto be conducted in a location and if there is no qualified physician to conduct the examination in a location reasonably accessible to the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits. 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. 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, unless the physician is physically disabled. . . . .” (emphasis added)
“(b) If requested by the person examined, a party causing an examination to be made shall deliver to him or her a copy of every written report concerning the examination rendered by an examining physician, at least one of which reports must set out the examining physician’s findings and conclusions in detail . . . If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.” (emphasis added)
See also Eduardo J. Garrido D.C., P.A., a/a/o Blanca Milian v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 970a (Fla. Dade Cty. Ct. 2005) (The term examination in (7)(a) does not refer to the treating doctor’s exam.) If the legislature intended the word ‘examination’ to mean the treating doctor’s exam where the legislature defined a valid report, the legislature would know how to express that intention considering they expressly used the word “examination” in the context of the treating doctor’s exam in other subparts of the PIP statute.1
24. Even if we assume for the sake of argument that there is an ambiguity, legislative history clarifies what the legislature intended. See Winthrop & Joseph Inc. v. Marriott Hospitality Corp., 695 So.2d 789, 791 (Fla. 5th DCA 1997) (“When a statute is unclear, the courts may look to legislative history to resolve any ambiguity.”) citing Weber v. Dobbins, 616 So.2d 956 (Fla. 1993). Legislative history reveals that § 627.736(7)(a) was amended to help
“remedy the current practice of PIP insurers utilizing what are termed “paper IMEs” in which the insurer merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.”
Senate Staff Analysis & Economic Impact Statement to Senate Bill 1092 at p. 13. (emphasis added). The report prepared by Dr. Fleischer in the present case is a ‘paper IME’ as described by the Senate Staff Analysis report, which the legislature intended to prohibit when it amended the statute to define a valid report.
25. United, however, argues that the Third District’s decision in United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3rd DCA 2008) is controlling precedent, and as such, Dr. Fleischer’s report is valid under Bermudez. The Court disagrees because the Third District in Bermudez did not decide whether a report prepared by a physician at the request of the insurer that is solely based on a review of the insured’s treatment records is valid where the report is not supported by an examination conducted by another physician pursuant to § 627.736(7)(a). The Third District, instead, only decided whether the physician who prepares a report pursuant to § 627.736(7)(a) based on a review of records must also personally examine the insured for the report to be valid.2 Id., at 1213. Needless to say, “[a] prior decision is not binding precedent on points or propositions not raised in briefs or argument, nor considered by the court or discussed in the opinion.” 21 C.J.S., Courts § 220 (2008) (emphasis added) (footnotes omitted.). See also Speedway SuperAmerica LLC v. Tropic Enterprises Inc., 966 So.2d 1 (Fla. 2nd DCA 2007) (“[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.”) quoting State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 S. 4, 6 (1930).
26. United also argues that to accept Plaintiff’s interpretation of the statute will yield an absurd result or unreasonable consequence in that the insurer cannot obtain a records review under § 627.736(7)(a) where the insured fails to appear for an independent medical examination. The Court disagrees because the PIP statute affords a remedy where the insured unreasonably refuses to attend an IME. See U.S. Security Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3rd DCA 1997); § 627.736(7)(b) (“If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.”) Further, an insurer’s reasonable proof to support a defense based on necessity and relatedness is not solely limited to a physician’s report. See United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). Thus, an insurer does not necessarily require a physician’s report under § 627.736(7)(a) to challenge necessity and relatedness.
27. WHEREFORE it is hereby ORDERED & ADJUDGED that by this Court
(a) That Plaintiff’s objection to the admissibility of Dr. Fleischer’s expert opinions is SUSTAINED on the grounds that Dr. Fleischer’s report is invalid under § 627.736(7)(a) where his report is not factually supported by another physician’s examination conducted at the request of the insurer pursuant to § 627.736(7)(a);
(b) That Plaintiff’s motion for summary judgment on reasonable, related and necessity is GRANTED because there is no genuine issue of material fact. The Court, upon review of the deposition of the treating physician, has determined that Defendant did not severely impeach the treating physician to create a genuine issue of material fact on necessity and relatedness;
(c) That the medical expenses in the sum of $8,245.00 submitted by Plaintiff, EDUARDO J. GARRIDO D.C., P.A., to Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, for services rendered to Angelica Rodriguez, dates of service November 29th, 2006 through March 9th, 2007, constitutes a covered loss under the policy in that the bills are reasonable, related and necessary; as such, Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, is liable on the policy to the Plaintiff, EDUARDO J. GARRIDO D.C., PA., for eighty percent of $8,245.00 subject to the application of the policy deductible.
(d) That Plaintiff is entitled to a money judgment for the benefits as supplement relief pursuant to § 86.061, Florida Statutes, (2007); and the Court reserves jurisdiction to award Plaintiff such relief.
(e) The Court also finds that Plaintiff is entitled to attorney fees and costs for prosecution of this action pursuant to §§ 57.401 and 627.428; and Plaintiff shall recover the reasonable amount of same from Defendant. The Court reserves jurisdiction to fix the reasonable amount of Plaintiff’s attorney’s fees & costs incurred for prosecution of this action.
28. There is no binding precedent from the District Courts where the question has been decided whether a physician’s review of records under § 627.736(7)(a) is a valid report where the report is not supported by a physical examination conducted by another physician at the request of an insurer pursuant to § 627.736(7)(a). Considering the voluminous number of PIP cases in the County Court; and because there is a strong likelihood of inconsistent decisions from the circuit appellate division on this question due to the lack of en banc mechanism, precedent is needed from the District Courts to guide the lower courts on this issue. Accordingly, this Court pursuant to Fla. R. App. P. 9.160 hereby certifies the following question of great public importance to the Florida Third District Court of Appeal:
WHETHER A PHYSICIAN’S REPORT BASED ON A REVIEW OF RECORDS THAT IS PREPARED AT THE REQUEST OF THE INSURER UNDER § 627.736(7)(a), FLA. STAT. (2003) SATISFIES THE STATUTORY CRITERIA OF A VALID REPORT WHERE THE REPORT IS NOT FACTUALLY SUPPORTED BY A PHYSICAL EXAMINATION CONDUCTED BY ANOTHER PHYSICIAN AT THE REQUEST OF THE INSURER PURSUANT TO § 627.736(7)(a)?
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1See e.g., 627.736(5)(c)(1)(4), Florida Statutes, (2003) (“(1) [T]he insurer is not required to pay for charges or treatment or services rendered more than 35 days
before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement . . . .* * *
(4) With respect to any treatment or services, other than certain hospital and emergency services, the statement of charges furnished by the provider may not include charges for and the insurer and the injured party are not required to pay treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement.”) (emphasis added)
2Though the Bermudez Court did not decide the question at issue here, the Court notes that in Bermudez, there was an independent medical examination; and the review of records in Bermudez was also based on a review of the independent medical examination report in addition to the treatment records.
