15 Fla. L. Weekly Supp. 322a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to strike peer review report and testimony of reviewer on grounds that review was not prepared within 30 days from date of notice of loss and was not based on physical examination — Directed verdict in favor of medical provider is reversed and case is remanded for factual determination of whether medical bills were reasonable, related and necessary
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ISOT MEDICAL CENTER CORPORATION A/A/O JULIAN PADRON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-505 AP & 07-011 AP (Consolidated). L.C. Case No. 03-11212 SP 05. February 14, 2008. On appeal from the County Court for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Laura J. Edelstein, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before BERTILA SOTO, MARK KING LEBAN, and ELLEN SUE VENZER, JJ.)
(SOTO, J.) Appellant United Automobile Insurance Company (“United Auto”) brings this appeal to reverse the trial court’s final judgment based upon the trial court’s grant of a directed verdict in favor of Appellee Isot Medical Center Corporation (“Isot”), assignee for Julian Padron. The Court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(c)(1)(A).
Mr. Padron was injured in a motor vehicle accident and sought medical treatment. After seeking treatment, Mr. Padron assigned his rights to receive payment for his medical treatment to Isot. Isot submitted its medical bills to United Auto. However, United Auto did not remit payment for the medical bills. As a result, Isot filed a complaint against United Auto for failure to pay Personal Injury Protection (“PIP”) benefits under section 627.736, Florida Statutes (2003).
On October 19, 2005, United Auto filed the peer review of Dr. Peter J. Millheiser, M.D. with the trial court. Three years passed between the completion of Mr. Padron’s treatment and the preparation of the peer review report.1 The peer review report stated that more than two office visits and the physical therapy Mr. Padron received was not reasonable, related, or necessary to the accident. Although Dr. Millheiser was listed as an expert witness on United’s Pre-trial Catalogue, Dr. Millheiser was not allowed to testify. Further, the peer review report was stricken on the grounds that the report did not comply with statute.
Isot was allowed to present the expert testimony of Dr. Rudolph Moise, D.O. Dr. Moise testified that based on his experience and review of the records, Mr. Padron’s injuries were related to the accident. On cross examination, Dr. Moise testified that it would be important to know as a treating physician whether Mr. Padron’s pain was mild, moderate, or severe pain. Subsequently, on redirect, Dr. Moise testified that based on the history that was taken and in review of the medical records, as well as his experience in treating similar patients in the past, Mr. Padron had suffered neck and several other injuries as a result of the automobile accident. United Auto argued that Dr. Moise was sufficiently impeached and the matter should have been given to the jury. However, at the close of the evidence, the trial court directed a verdict in favor of Isot. Following the jury trial, the trial court entered a final judgment in favor of Isot.
The standard of review of a trial court’s ruling on a motion for directed verdict is de novo. Borda v. East Coast Entertainment, Inc., 950 So. 2d 488, 490 (Fla. 4th DCA 2007). A directed verdict will be affirmed only when no proper view of the evidence could warrant a verdict in favor of the nonmoving party. Brady v. SCI Funeral Services of Fla., Inc., 948 So. 2d 976, 978 (Fla. 1st DCA 2007). Further, when an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in light most favorable to the nonmoving party and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party. Istache v. Pierre, 876 So. 2d 1217, 1219-20 (Fla. 4th DCA 2004).
The trial court struck Dr. Millheiser’s peer review report based on the rationale that the peer review was obtained in an untimely manner. Isot argues that the trial court excluded the peer review because the peer review was obtained years after the conclusion of the subject treatment or the peer review was not premised upon a physical examination. (Appellee’s Answer Br. 7.) The record reflects that three years passed between the completion of treatment and the preparation of the peer review report. As a result, the peer review report was stricken and Dr. Millheiser was not allowed to testify at trial.
While we are mindful and concerned about the passage of three years between the completion of treatment and the preparation of the peer review report, Florida law does not require that an insurance company must file a peer review within thirty days from the date of the notice of loss in order to establish or contest the reasonableness, relatedness, and necessity of a PIP claim.
In United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001), the insurer submitted the insured medical bills for review to a physician who issued a report to the insurer outside the thirty-day statutory time period. Although the insured moved for summary judgment on the grounds that the report was untimely, the Supreme Court of Florida held that if payment of PIP claims is “overdue” under section 627.736 of the Florida Statutes, the only penalties that may be levied against the insurer included ten percent interest and attorneys’ fees. Id. at 87. The Rodriguez Court held that the insurer is not forever barred from contesting the claim. Id. Further, this Court holds consistent with its decision in United Automobile Ins. Co. v. Gerlin, 15 Fla. L. Weekly Supp. 123a (Fla. 11th Cir. Ct. Dec. 18, 2007), where it was this “court’s intent to reverse summary judgment in so far as it was predicated upon the peer review having been obtained after benefits were denied and were due.” See also United Automobile Ins. Co. v. Tate, 14 Fla. L. Weekly Supp. 628a (11th Cir. Ct. May 9, 2007) (court holding that insurer is not barred from contesting the reasonableness, relatedness or medical necessity of insured PIP insurance claim simply because the claim was officially overdue from not having been paid within thirty days).
Additionally, a physician’s report stating that treatment was medically unnecessary could be based on a review of medical records without aphysical examination. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA 2000). In Southeast Diagnostics, the Fourth District Court of Appeal held that after the 1987 amendment to section 627.736(7)(a), there was no language in the amendment that requires the medical report to be based upon a physical examination of the insured. Id. at230. Here, we are not persuaded by Isot’s argument that Dr. Millheiser’s peer review was properly stricken because it was not premised upon a physical examination. Under section 627.736(7)(a), Dr. Millheiser did not have to personally examine Mr. Padron and the peer review could be based on a review of the medical records, as it was in the case at bar.
Therefore, we reverse the final judgment which granted directed verdict in favor of Isot and remand this cause back to the trial court for a factual determination of whether the medical bills were reasonable, related, and necessary. In addition, we are required to reverse the award of attorney’s fees that were awarded in favor of Isot. “Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees.” Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).
REVERSED and REMANDED. (LEBAN and VENZER, JJ., concur.)
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1Dr. Millheiser’s peer review report was filed with the court on October 19, 2005. A review of the billing section of the peer report reflects that Mr. Padron’s last office visit occurred on May 22, 2002.
