16 Fla. L. Weekly Supp. 959a

Online Reference: FLWSUPP 1610SARA

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Affidavit of peer review physician opining that treatment was not reasonable, related or necessary is not sufficient to defeat motion for partial summary judgment where opinion is conclusory and not based on full review of treatment records — Partial summary judgment granted in favor of medical provider

AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Denia Saravia, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 05-28326 SP 05 (08). July 31, 2009. Wendell M. Graham, Judge. Counsel: Emilio R. Stillo and Garrett Zediker, Florida Trial Team LLC, for Plaintiff. Majid Vossoughi, Majid Vossoughi PA, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT

THIS CAUSE, having come before the Court for consideration on Plaintiff, Affiliated Healthcare Centers, Inc., a/a/o Denia Saravia, Motion for Summary Judgment as to Reasonableness, Relatedness and Medical Necessity.

Background. Denia Saravia treated with the Plaintiff from December 3, 2004 to January 24, 2005, for an automobile accident that occurred on November 19, 2004. The Plaintiff submitted the medical bills for the subject treatment in the amount of $2,255.00 dollars to the Defendant. The Defendant paid nothing. On December 2, 2005, the Plaintiff initiated suit. On May 20, 2008, the Defendant filed its Answer & Affirmative Defenses. The only pled affirmative defenses state the treatment was not reasonable, related or medically necessary. Plaintiff has moved for Summary Judgment as to reasonableness, relatedness and medical necessity. Attached to Plaintiff’s Motion is the detailed affidavit of Dr. Barry Burak DC as well as Dr. Burak’s initial examination of December 3, 2004 as well as the complete medical file for this patient. The Plaintiff has also filed the deposition of the litigation adjuster which establishes the policy was in full force and effect and that the policy provides coverage to Denia Saravia. The Defendant does not dispute the policy provides coverage to Denia Saravia. In opposition to Plaintiff’s Motion, the Defendant relied only on the affidavit of Dr. Marvin Merrit DC who performed a “records review” of some of the medical records at issue. Specifically, Dr. Merrit opines that there was no report of the initial evaluation of December 3, 2004 provided to him for his review. Thus, Dr. Merrit DC opines that chiropractic treatment was not reasonable, related or medically necessary.

Conclusions of Law. Dr. Merrit’s affidavit is insufficient as a matter of law. Dr. Merrit’s opinion is conclusory, thus should not be considered by the Court. Page v. Staley, 226 So.2d 129, 130 (Fla. 4th DCA 1969); Gruber v. Mount Sinai Hospital, 487 So. 2d 76 (Fla. 3d DCA 1986); North Broward Hospital District v. Royster, 544 So.2d 1131 (Fla. 4th DCA 1989).

Further, Dr. Merrit neither physically examined the insured nor fully reviewed the treatment records of the insured, thus he has not rendered a valid opinion in compliance with the requirements of Section 627.736 Fla. Stat. See Palm Rehabilitation, Inc. a/a/o Jose Quintanilla v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 888a (11th Jud. Cir. County Court, Hon. Lawrence D. King, June 28, 2007) and Affiliated Healthcare Centers, Inc. (Myriam Paiz) v. United Automobile Insurance Company, 06-5246 SP 05 (unpublished decision of the Honorable Bronwyn C. Miller, May 21, 2009, Miami-Dade County Court). Both opinions dealt with the same factual scenario where this same doctor did not review the initial report and thus concluded that no bills were payable or reasonable, related and necessary. As Dr. Merrit’s opinion is fatally flawed, the Court need not consider Plaintiff’s additional argument concerning the sufficiency of Dr. Merrit’s opinion with regards to United Automobile Insurance Company v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008) and United Automobile Insurance Company v. Metro Injury & Rehab (Magda Davis), 16 Fla. L. Weekly Supp. 22a (Hon J. Emas, Miami-Dade Circuit Court, 2008).¹

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¹As an ancillary note, Dr. Merrit performed his “peer review” approximately three years after suit was filed.