15 Fla. L. Weekly Supp. 317a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to find that peer review could not establish reasonable proof to contest medical bills as unreasonable, unrelated or unnecessary because review was not completed within 30 days of receipt of medical bills and was not performed by physician who examined insured — As peer review presented clear genuine issue of material fact as to whether treatment was reasonable, related and necessary, summary judgment in favor of medical provider is reversed and case is remanded for factual determination of issue
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CARE MEDICAL CENTERS a/a/o MICHEL MORGAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-435 AP & 07-014 AP (Consolidated). L.C. Case No. 05-17715 CC 05 (08). January 15, 2008. An appeal from the County Court in and for Miami-Dade County, Wendell M. Graham, Judge. Counsel: Denise Garno, United Automobile Insurance Company, Office of the General Counsel (Trial Division), for Appellant. Arnold R. Ginsberg, Ginsberg & Schwartz, for Appellee.
(Before: LEON M. FIRTEL, DIANE WARD, and BARBARA ARECES, JJ.)
(PER CURIAM.) On or about April 22, 2004, Michel Morgan (“Morgan”) was involved in an automobile accident wherein she sustained injuries. At the time of the accident, Morgan was insured under a policy for Personal Injury Protection (PIP) be
nefits provided by the Appellant, United Automobile Insurance Company (“United”). From April 24, 2004 to June 7, 2004, Morgan sought and received treatment from the Appellee, Care Medical Centers (“Care”), and subsequently assigned her benefits under the United policy to Care. After Morgan’s treatment, Care submitted the bills to United. While not having paid any previous bills, United received the last set of medical bills from Care on June 8, 2004, but refused to remit payment for any of Care’s services. As a result, on November 18, 2005, Care brought suit against United for breach of contract, and on February 2, 2006, United filed an amended answer and affirmative defenses.
On April 27, 2006, Care filed a motion for final summary judgment, asserting that all the treatment Morgan received from Care was reasonable, related and necessary. In support of its motion, Care submitted the deposition testimony of Rael Gilchrist, D.C., who opined that Morgan’s medical treatment was medically necessary and related to the subject automobile accident. Dr. Gilchrist also testified that the charges for the treatment were reasonable in price based upon his experience in the community.
In opposition to Care’s motion for summary judgment, United presented the affidavit of Dr. Ronald Drucker. Executed on July 13, 2006, in his affidavit, Dr. Drucker stated that he performed an Independent Medical Examination (IME) of Morgan on June 5, 2004, and that it is his opinion that Morgan had reached maximum medical improvement as of June 5, 2004. He further stated in his affidavit that any treatment received after June 5, 2004 would not have been reasonable, related or necessary.
United also presented an affidavit of Dr. Mervin J. Merrit. Executed as well on July 13, 2006, Dr. Merrit stated in his affidavit that, on October 11, 2004, he performed a peer review of the medical treatment received by Morgan, based on certain medical records generated by Care, Dr. Gilchrist and Dr. Drucker. While Dr. Merrit did not personally examine Morgan, in the October 2004 peer review (attached to the affidavit), Dr. Merrit specifically found the following: (1) that the charges for the “evaluation and management of a new patient” did not meet established criteria and, as such, he “recommended a down coding of this service to a level III examination”; (2) that payment for the “cervical and lumbar range of motion testing” be denied; (3) that the charges for the “neuromuscular re-education and therapeutic exercises” be denied; and, (4) that the charges for the “evaluation and management of an established patient” be denied, as this service “was not medically necessary.”
The trial court granted summary judgment to Care, finding that the bills were reasonable, related and necessary, and awarded Care its attorney fees pursuant to section 627.428(1), Florida Statutes. In granting summary judgment, the trial found that the Drucker and Merrit affidavits did not present any genuine issue of material fact vis-à-vis Dr. Gilchrist’s deposition testimony. The court found that the Drucker affidavit, as a whole, did not sufficiently countervail Dr. Gilchrist’s testimony so as to present a genuine issue of a material fact as to whether the treatment was reasonable, related and necessary. With respect to Dr. Merrit’s affidavit, however, the court found that, since the peer review was not completed within thirty days of June 8, 2004, it could not be used to establish “reasonable proof” to contest the medical bills pursuant to section 627.736(4)(b), Florida Statutes. Additionally, the court found that since Dr. Merrit did not actually perform a physical examination of Morgan, the peer review could not be considered a “valid report” under section 627.736(4)(b).
We reverse and remand with instructions.
Generally, summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Further, “the standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.” Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
In United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001), the Supreme Court held that, under section 627.736(4)(b), an automobile insurer’s failure to pay personal injury protection (PIP) benefits within thirty days after receiving written notice of a covered loss does not forever bar it from contesting the claim; rather, the statutory penalties of interest and attorney fees are the only penalties which can be assessed against an insurer for this “overdue claim.” Accordingly, applied here, the lower court committed error in ruling that the peer review could not be used to establish reasonable proof to contest the medical bills, as it did not have to be conducted within thirty days after June 8, 2004. Further, to this end, we find that the lower court’s reliance on United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999) is misplaced. Stated in terms of the certified question it answered in the affirmative, the Viles court found that, in any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, it is a condition precedent, pursuant to section 627.736(7)(a), Florida Statutes, that the insurer obtain a report, by a physician licensed under the same chapter as the treating physician, stating that the treatment was not reasonable, related or necessary in order for the insurer to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, necessity or relationship. In other words, Viles stands for the proposition that benefits, once started by an insurer, cannot be withdrawn, reduced or further denied absent a report. Here, factually, United Auto was not seeking to withdraw, reduce or further deny Morgan’s benefits; rather, United Auto denied Morgan’s benefits at the outset after it refused to pay after the last set of bills were received on June 8, 2004, and thus was not required, under section 627.736(7)(a) as well, to obtain a report within thirty days.
Secondly, we find that the trial court incorrectly found that Dr. Merrit’s peer review, under section 627.736(4)(b), was not a “valid report” because he did not actually examine Morgan. First, section 627.736(7) more so governs what constitutes a “valid report” rather than section 627.736(4)(b), (although, admittedly, section 627.736(4)(b) speaks of “reasonable proof”). This notwithstanding, at no place in section 627.736(7) is it found that in order for a peer review to be valid, the physician preparing it must have performed a physical examination of the claimant. In relevant part, this section states:
[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 supplied.) Thus, the lower court erred when it found that Dr. Merrit’s report did not create a genuine issue of material fact because it was “procedurally” defective, inasmuch as it was not filed within the thirty days and was not prepared by an examining physician. Under the applicable statutes, to be valid, the peer review did not have to be performed within thirty days, and Dr. Merrit did not have to personally examine Morgan.
Considering the substance of Dr. Merrit’s peer review as outlined above, we conclude that it, in relation to Dr. Gilchrist’s deposition testimony, presented a clear genuine issue of material fact as to whether Morgan’s treatment received from Care was reasonable, related and necessary. In so doing, however, we specifically do not address whether Dr. Drucker’s affidavit vis-à-vis Dr. Gilchrist’s testimony presented a genuine issue of material fact. Given Dr. Merrit’s affidavit, we do not need to address this, and decline to do so.
As such, we reverse the summary judgment entered for Care and remand this matter back to the trial court for a factual determination of whether the services were in fact reasonable, related and necessary. In so doing, however, we are required to reverse the award of attorney fees to Care. See Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).
REVERSED AND REMANDED.
