15 Fla. L. Weekly Supp. 924a
Insurance — Personal injury protection — Withdrawal of benefits — Reasonable proof — Peer review report is valid despite fact that peer review doctor did not personally examine insured where report is factually supported by treatment records and independent medical examination conducted by another doctor — However, where insurer did not obtain report before withdrawing treatment authorization and benefits, report is inadmissible to support claim that treatment was not medically necessary or related — Insurer did not forfeit right to assert lack of necessity or relatedness as defense and may rely on other reasonable proof to support defense — Requirement to obtain reasonable proof prior to action applies regardless of whether refusal to pay is labeled as “withdrawal” or “denial”
OPEN MRI OF MIAMI DADE LTD., as assignee of Rafael Perez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 05-6976 SP 25 (2). July 16, 2008. Lawrence D. King, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of the General Counsel, for Defendant.
AMENDED ORDER DENYING DEFENDANT’SMOTION FOR RECONSIDERATION ON PLAINTIFF’S MOTION IN LIMINE AND FINAL JUDGMENT
THIS ACTION came before the Court on June 2nd, 2008 on Defendant’s motion for reconsideration of the Court’s prior ruling granting Plaintiff’s motion in limine to exclude the expert opinions of Dr. Peter J. Millheiser M.D. in the present action; and upon considering same, the Court makes the following findings of fact and law:
FINDINGS OF FACT
1. This is a breach of contract action for personal injury protection benefits governed by § 627.736, Florida Statutes (2003).
2. At the request of Defendant, Dr. Peter J. Millheiser M.D. prepared a report on or about October 22nd, 2004 based on a review of records where Dr. Millheiser reviewed the insured’s treatment records; and the independent medical examination report of Dr. Wilensky M.D.
3. According to his report, Dr. Millheiser opined that the MRI service at issue was not medically necessary.
4. It is undisputed that Defendant did not first obtain Dr. Millheiser’s report before Defendant withdrew the treating physician’s treatment authorization for the MRI.
5. Defendant in the present case advised the claimant on July 30th, 2004 that it would not be paying for the MRI bill where Defendant suspended benefits based on the IME report of Dr. Michael Wilensky M.D., for services rendered after June 30th, 2004.
6. The MRI service at issue was rendered by Plaintiff on July 23rd, 2004.
7. During the proceedings in this case, Plaintiff first moved in limine to preclude the admissibility of Dr. Millheiser’s opinion on the grounds that Dr. Millheiser’s report is invalid under § 627.736(7)(a) where Dr. Millheiser did not personally examine the insured at the request of Defendant. The Court granted Plaintiff’s motion on February 19th, 2008.
8. Plaintiff subsequently moved for summary judgment on the grounds that there is no genuine issue of material fact whether the MRI was medically necessary or related; Plaintiff’s motion was heard and argued on June 2nd, 2008.
9. In response to Plaintiff’s motion for summary judgment, Defendant served an affidavit from Dr. Millheiser attaching his report.1 According to the affidavit, Dr. Millheiser stated that the MRI was neither medically necessary nor related.
10. When Plaintiff’s motion for summary judgment was heard, Defendant moved for reconsideration of the Court’s prior ruling on Plaintiff’s motion in limine; and asserts that the order granting Plaintiff’s motion in limine is erroneous in light of the Third District’s recent decision in United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3rd DCA 2008); and as such, the affidavit of Dr. Millheiser should be considered.
CONCLUSIONS OF LAW
11. This Court finds that the basis for the Court’s prior ruling on Plaintiff’s motion in limine was erroneous. In Bermudez, the Third District held that a physician preparing a report at the request of the insurer under § 627.736(7)(a) which is based on a review of records need not be the same physician who personally conducted an independent medical examination of the insured. In the present case, Dr. Millheiser’s report is valid because his report is factually supported by the treatment records and the independent medical examination of Dr. Wilensky. Dr. Millheiser reviewed both the treatment records and IME report.
12. Plaintiff, on the other hand, argues that reconsideration should be denied because the Court reached the right result because Defendant did not first obtain Dr. Millheiser’s report before withdrawing the treating physician’s treatment authorization for the MRI in violation of the predicate under § 627.736(7)(a).
13. The Court in deciding whether Dr. Millheiser’s opinion is admissible to support Defendant’s claim that the MRI was not medically necessary, finds that question is not controlled by whether Dr. Millheiser’s report was obtained within thirty days under § 627.736(4)(b); but instead, whether Defendant first obtained Dr. Millheiser’s report before withdrawing the treating physician’s treatment authorization for the MRI under § 627.736(7)(a).2 The PIP statute requires that where the insurer is seeking to withdraw the treating physician’s treatment authorization or payment based on a medical opinion, the insurer must first obtain a valid report from a physician licensed under the same treating chapter as the treating physician stating treatment was not reasonable, related or necessary:
“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.”
§ 627.736(7)(a), Florida Statutes (2003) (emphasis added).
14. The Court does not need to decide in this case when Defendant withdrew the treating physician’s treatment authorization in order to decide whether Dr. Millheiser’s report was ‘first obtained.’ It is undisputed in the present case that Defendant did not first obtain Dr. Millheiser’s report where Defendant advised the claimant’s counsel in writing that it was suspending benefits for the MRI including other bills based on the IME report of Dr. Wilensky. When Defendant advised the insured of this action, Defendant did not have Dr. Millheiser’s report. The report, instead, was generated months after the fact. Considering these facts and the plain language under § 627.736(7)(a), the Court finds that Defendant’s purported termination of benefits based on Dr. Millheiser’s report is ineffective under § 627.736(7)(a) because Dr. Millheiser’s report was not ‘first obtained’ by Defendant before the treatment authorization and benefits for the MRI were withdrawn; and as such, Dr. Millheiser’s opinion is inadmissible to support Defendant’s claim that the MRI was not medically necessary or related. To rule otherwise, would allow Defendant to circumvent the statute.
15. Defendant argues that controlling case law from the eleventh circuit court and Florida Supreme Court holds that an insurer can use a report obtained by the insurer at any time notwithstanding the requirements of § 627.736(7)(a) to support a defense based on lack of necessity and relatedness. The Court disagrees. The Supreme Court in United Auto. Ins. Co. v. Rodriguez808 So.2d 82 (Fla. 2001) narrowly held that an insurer need not obtain reasonable proof within thirty days in order to contest a claim. The Rodriguez Court did not, on the other hand, decide whether a physician’s report obtained by the insurer which contravenes § 627.736(7)(a) is admissible to support the insurer’s defense on necessity and relatedness. Likewise, the case law from the eleventh circuit did not decide that question either where instead the circuit appellate court reversed a number of summary judgments that were granted on the basis that the insurer forfeited the right to defend on necessity and relatedness for failure to obtain a report within thirty days.3
16. The Court in the present case does not find that Defendant must obtain a physician’s report within thirty days to contest payment; but instead, that where the insurer is relying on an expert opinion based on a valid report to support its defense on necessity and relatedness, the report must be one that was ‘first obtained’ before the treatment authorization or benefits were withdrawn under § 627.736(7)(a). Defendant, moreover, is not, for reasons explained hereafter, precluded from contesting payment; and nor has Defendant forfeited its right to assert lack of necessity or relatedness as a legal defense in this action.
17. The Court’s finding that Dr. Millheiser’s opinion is inadmissible is based on the Court’s interpretation of § 627.736(7)(a). There is no precedent from the District Courts where the question has been considered whether an expert opinion based on a valid physician’s report that was not ‘first obtained’ before the insurer withdrew or denied benefits is inadmissible to support the insurer’s defense on necessity and relatedness on the grounds that it contravenes § 627.736(7)(a). The District Court cases have only found that there is no statutory requirement that an insurer must obtain a report within thirty days to contest payment or defend a lawsuit on the grounds of necessity and relatedness.4 The question here, however, is not whether such a report must be obtained within thirty days; or whether the insurer forfeited the right to defend on necessity or relatedness for failure to obtain same within thirty days; but instead whether an expert opinion based on a report that was not first obtained before benefits or treatment authorization were withdrawn is admissible to support such a defense? The Third District’s ruling in United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1998), moreover, is not directly on point either. The Viles Court, instead, only decided whether an insurer must obtain a physician’s report as a condition precedent to asserting lack of necessity and relatedness as a legal defense in a PIP suit.5 Id. The Viles Court, on the other hand, did not decide whether such a report must be one that was ‘first obtained’ before the insurer withdrew the treatment authorization or benefits for testimony thereon to be admissible to support such defense.6
18. Although there is no statutory requirement that an insurer must obtain a medical report or other reasonable proof within thirty days to defend a claim on any grounds, including medical necessity and relatedness, the issue here, as stated earlier, is not whether the report was obtained within thirty days or whether Defendant was required to do so. In the Court’s view, the thirty day statutory window under § 627.736(4)(b) is not dispositive or relevant to the Court’s analysis on whether Dr. Millheiser’s opinion is admissible because the thirty day window under § 627.736(4)(b) only acts as a mechanism for imposing interest penalties for late payments if liability is established. AIU Insurance Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000). The analysis, instead, turns on whether Dr. Millheiser’s report was ‘first obtained’ before Defendant withdrew the treating physician’s treatment authorization for the MRI, not whether it was obtained within thirty days.
19. In the present case, the Court finds that because Defendant did not ‘first obtain’ Dr. Millheiser’s report, the only remedy the Court can impose for the report’s noncompliance with § 627.736(7)(a) is to bar the admissibility of Dr. Millheiser’s opinion; but Defendant, on the other hand, did not forfeit the right to assert lack of necessity or relatedness as a legal defense to the present action. Defendant, instead, may rely on other reasonable proof, assuming such proof was obtained and is admissible, to support such defense.
20. Further, it cannot be said that Defendant is barred from defending based on lack of necessity and relatedness as a result of the Court’s ruling. That premise would be true if the legislature limited an insurer’s reasonable proof on necessity and relatedness to a physician’s report; which is not the case. See Rodriguez, 808 So.2d at 87 (PIP statute does not limit reasonable proof to a physician’s report.) Reasonable proof to demonstrate lack of necessity and relatedness can be something other than a physician’s report. For instance, after the Court ruled that Dr. Millheiser’s opinion was inadmissible, the Court entertained Defendant’s argument during the summary judgment hearing that it possessed reasonable proof that the MRI was not related or necessary where Defense counsel argued that the treating doctor was severely impeached during deposition; which creates a question of fact regarding necessity and relatedness for the jury to decide. The Court, however, upon reviewing the deposition transcript of the treating physician in the present case, determined that Defendant did not severely impeach the treating physician; but assuming for the sake of argument that Defendant was successful in that regard, summary judgment would be improper because such evidence is reasonable proof that would allow a jury to base a verdict for Defendant on necessity and relatedness.
21. The Court also finds that the requirements of § 627.736(7)(a) applies to the limited extent where the insurer is relying on a physician’s report to withhold benefits regardless of whether the refusal to pay is labeled a ‘withdrawal’ or ‘denial.’ There have been a number of appellate cases from the eleventh circuit where the circuit court determined that the requirements of § 627.736(7)(a) only applies when payment is withdrawn, not denied.7 That distinction, however, was recently rejected by the Third District in Bermudez where the Third District disagreed with the Second District’s ruling in State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 2008 WL 786856 (Fla. 2nd DCA 2008) [33 Fla. L. Weekly D839a] where the Second District found that § 627.736(7)(a) does not apply where payment of a diagnostic test is denied, not withdrawn. In disagreeing with the Second District, the Bermudez Court clarified that under the Court’s prior decision in United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1998), the requirements of § 627.736(7)(a) applies regardless of whether the refusal to pay is labeled a denial or withdrawal.8 Bermudez, 980 So.2d at 1215-16.
22. ACCORDINGLY, based upon the Court’s findings of fact and conclusions of law, it is hereby ORDERED & ADJUDGED that
a. Defendant’s motion for reconsideration on Plaintiff’s motion in limine to preclude the opinion testimony of Dr. Millheiser is DENIED;
b. Plaintiff, OPEN MRI OF MIAMI DADE LTD., as assignee of Rafael Perez, shall recover from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, $1,988.89 on principle, $532.10 in late interest, making a total of $2,520.99 that shall bear interest at the rate of 11% for which let execution issue;9
c. Plaintiff shall recover attorney fees & taxable costs from Defendant for prosecution of this action pursuant to §§ 627.428, 57.401; and the Court shall reserve jurisdiction to fix the reasonable amount of same.
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1Defendant also served an affidavit of from the IME physician, Dr. Wilensky. The Court, however, granted Plaintiff’s motion in limine to exclude Dr. Wilensky’s opinion in a prior hearing. The motion in limine was granted on grounds unrelated to Plaintiff’s argument to exclude Dr. Millheiser’s opinion.
2An MRI service constitutes treatment under § 627.736(7)(a). See Turner v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 917b (Fla. 11th Jud. Cir. App. 2002).
3See e.g., United Automobile Ins. Co. v. Kendall South Medical Center a/a/o Nelson Alfaro, 14 Fla. L. Weekly Supp. 934a (Fla. 11th Cir. App. 2007); United Auto. Ins. Co. v. Professional Medical Grp., a/a/o Vivian Figueredo, 14 Fla. L. Weekly Supp. 539a (Fla. 11th Jud. Cir. App. 2007); United Automobile Ins. Co. v. Professional Medical Group, Inc. a/a/o Raquel Gutierrez, 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. App. 2007); United Automobile Ins. Co. v. Asclepius Medical a/a/o Nestor Pelaez, 13 Fla. L. Weekly Supp. 425a (Fla. 11th Cir. App. 2006).
4See Allstate Ins. Co. v. Schall, 778 So.2d 317 (Fla. 2nd DCA 2000) (Failure to obtain reasonable proof within thirty days does not deprive insurer of its right to contest payment.); Gurney v. State Farm Mut. Auto. Ins. Co., 795 So.2d 1118 (Fla. 5th DCA 2001) (Same); AIU Insurance Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000).
5The Viles Court, in answering the certified question from the county court, held that an insurer must obtain a physician’s report as a condition precedent to raising lack of necessity or relatedness as a legal defense in a PIP suit. This Court, however, finds that obtaining a report is not a condition precedent to asserting lack of necessity or relatedness as a legal defense where the Supreme Court in Rodriguez held that reasonable proof is not limited to a physician’s report. Rodriguez, 808 So.2d at 87. Thus, an insurer can defend a PIP suit based on lack of necessity or relatedness without a physician’s report assuming the insurer obtained other reasonable proof that is competent and admissible to support the defense.
6The insurer in Viles did not obtain a physician’s report; and instead, only relied on evidence of severe impeachment at trial to demonstrate that care was not medically necessary or related. See Viles v. United Auto. Ins. Co., 5 Fla. L. Weekly Supp. 170a (Fla. Dade Cty. Ct., 1997) (Altonaga, J.).
7See e.g., United Auto. Ins. Co. v. Quality Med. Grp, a/a/o Bricedia Barcenas, 15 Fla. L. Weekly Supp. 567a (Fla. 11th Cir. App. 2008); United Auto. Ins. Co. v. Context Med. Grp., a/a/o Jennifer Cordoba, 14 Fla. L. Weekly Supp. 937a (Fla. 11th Jud. Cir. App. 2007); United Automobile Ins. Co. v. Asclepius Medical a/a/o Nestor Pelaez, 13 Fla. L. Weekly Supp. 425a (Fla. 11th Cir. App. 2006).
8To narrowly construe § 627.736(7)(a) and find that it only applies where benefits are withdrawn, not denied, would yield an absurd result where an insurer who never pays is better off than an insurer that does. The former, in such a case, can circumvent part of the statute as a reward for nonpayment; but the latter must comply with § 627.736(7)(a) to the limited extent where it seeks to discontinue payment based on a physician’s report. Such a result is obviously unintended by the legislature. See Drury v. Harding, 461 So. 2d 104, 108 (Fla. 1984) (A literal interpretation of a statute which leads to an unreasonable or ridiculous conclusion that is obviously unintended by the legislature will not be adopted.)
9A final judgment is entered based on the Court’s interlocutory order granting Plaintiff’s motion for summary judgment on June 2nd, 2008; which was entered after the Court denied Defendant’s motion for reconsideration of the Court’s prior ruling on Plaintiff’s motion in limine.
