15 Fla. L. Weekly Supp. 123b
Insurance — Personal injury protection — Independent medical examination — Necessity to plead as affirmative defense — Error to prohibit testimony regarding IME based on insurer’s failure to plead affirmative defense regarding IME where IME evidence would have been presented to refute medical provider’s evidence regarding reasonableness, relatedness and necessity of treatment — Expert witness — Qualifications — Expert’s consideration of managed care fee schedules is not basis for finding expert unqualified to make determination of reasonableness of charges — Deductible — Application of deductible provision of policy need not be plead as affirmative defense — If medical provider again obtains jury verdict on remand, trial court should reduce award by deductible set forth in policy — Attorney’s fees and cost award reversed based on reversal of judgment
UNITED AUTOMBILE INS. CO., Petitioner, vs. HIALEAH MEDICAL ASSOCIATES, INC., Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-288 AP and 07-089 AP. L.T. Case No. 02-16536 CC 05. December 14, 2007. On appeal from the County Court for Miami-Dade County. Counsel: Lara J. Edelstein, Office of the General Counsel, for appellant. Marlene S. Reiss, Marlene S. Reiss, Esq., P.A., and Carlos A. Lopez, Lopez & Best, for appellee.
(Before FARINA, MUIR and BROWN, JJ.)
(FARINA, J.) United Automobile Insurance Company (United Auto) appeals a final judgment entered against it pursuant to a jury verdict and it appeals an assessment of attorney’s fees and costs, in accordance with the final judgment. We reverse.
United Auto argues that the trial court erred by prohibiting its expert witness from testifying regarding the independent medical examination (IME) that he performed on the insured. The trial court’s basis for prohibiting the testimony was that United Auto did not plead an affirmative defense regarding an IME. However, United Auto wanted to present evidence regarding the IME in order to refute that the medical treatments provided by the Appellee were reasonable, necessary, and related to the accident at issue in the case. Since the evidence regarding the IME would have gone toward the reasonable, related and necessary issue, the IME did not need to be pled as an affirmative defense in order for the evidence to be presented to the jury. This is because a plaintiff must prove, as an essential element of a lawsuit seeking recovery under the PIP statute, that the treatment received by the insured was reasonable, necessary, and related to the accident at issue in the case. See Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031 (Fla. 2d DCA 2001); Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998). Therefore, since reasonableness, relatedness and necessity are essential elements of a plaintiff’s case, a defendant insurance company need not plead the lack of these elements as an affirmative defense in order to argue against them at trial. See Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (“An affirmative defense is any matter that avoids the action and that, under applicable law, the plaintiff is not bound to prove initially but the defendant must affirmatively establish.”) (emphasis added). Rather, an insurer may present evidence in its defense to refute the evidence presented by the plaintiff, in order to attempt to convince the jury that the plaintiff did not meet the elements of its case. Because, in the instant case, the expert’s testimony regarding the IME would have been presented to refute the Appellee’s evidence regarding the reasonableness, relatedness and necessity of the insured’s treatment, the IME did not need to be pled as an affirmative defense in order for the evidence to be presented to the jury. Accordingly, we reverse, based upon the trial court’s finding to the contrary.
United Auto also argues that the trial court erred by finding that its expert was not competent to testify as to the reasonableness of the amount of the medical bills. Weighing in favor of the trial court’s decision is that the expert had not billed for a physical therapy modality, the type of medical treatment at issue in the case, for approximately twenty years, and that he has not called other physical therapy providers to determine what they charge for particular modalities in the community. Weighing against the trial court’s decision is that the expert testified that he is familiar with the amounts that medical providers charge in the community because he has been performing peer reviews on bills for the past eight years. A fact on which the trial court appears to have based its decision that the expert was not competent to testify is that the expert, in making his determination regarding the reasonableness of the fees charged, relied at least in part on managed care fee schedules. At the time that the medical bills in the instant case were provided to United Auto, the applicable statute did not include any factors to be considered in determining whether or not a charge for a medical treatment is reasonable. However, the current version of the statute now specifically provides that in making such a determination “consideration may be given” to “various federal and state medical fee schedules” such as the ones relied upon by the expert below. See Florida Statute § 627.736(5)(a) (2006). Although this portion of the statute was not in effect during the relevant period in the instant case, since the statute allows the determination of whether a charge for a medical treatment is reasonable to be based upon the consideration of fee schedules, such allowance demonstrates that an expert’s consideration of such fee schedules does not render him unqualified to testify as to the reasonableness of the charges. Although the statute was not available to the trial court at the time that it rendered its decision, we find that its relevance to the issue at hand requires us to consider it. The statute demonstrates that the consideration of fee schedules is appropriate in determining the reasonableness of a medical charge, and therefore, we conclude that an expert’s consideration of such schedules is not a basis for finding the expert to be unqualified to make a determination of reasonableness. Therefore, we find that the determination that the expert was unqualified to testify as to the reasonableness of the medical charges is a second basis for reversing the judgment below.
United Auto also argues that the trial court committed error because it did not properly apply the deductible below because it was not pled as an affirmative defense. The parties do not dispute that, pursuant to a case decided subsequent to the trial court’s decision below, “[t]he application of the deductible provision in a policy of insurance is not a defense which must be raised as an affirmative defense . . . .” Digital Medical Diagnostics v. United Auto. Ins. Co., 958 So. 2d 505, 507 (Fla. 3d DCA 2007). However, the parties dispute whether or not the deductible was in fact applied below, and if it was, whether or not it was applied correctly. It appears from the record on appeal that a 20% deductible was applied by the trial court. However, United Auto asserts that a $2000 deductible should have been applied. Because the record does not contain a copy of the insurance contract between the parties, we are unable to determine the amount of the deductible that should have been applied. However, since we are reversing this case on the grounds set forth above, we need not determine this factual matter. Instead, if the plaintiff again successfully obtains a jury verdict against United Auto on remand, the trial court should, subsequent to the trial, reduce the award in accordance with the terms of the deductible provision as set forth in the insurance contract.
Because we are reversing the underlying judgment, we also reverse the attorney’s fees and costs entered in the Appellee’s favor.
REVERSED and REMANDED. (MUIR and BROWN, JJ., concur.)
