16 Fla. L. Weekly Supp. 981b
Online Reference: FLWSUPP 1610GODF
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Affidavits submitted by insurer which state opinions regarding adequacy of medical provider’s records do not create genuine issue of material fact as to reasonableness, relatedness or medical necessity of treatment — Inadequacy of record keeping is not lawful basis for nonpayment of PIP benefits — Partial summary judgment granted in favor of provider
SOUTH FLORIDA PAIN & REHABILITATION, INC. (a/a/o Kirt Godfrey) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-21147 COCE (54). August 10, 2009. Lisa G. Trachman, Judge. Counsel: Emilio R. Stillo and Nathan Avrunin, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Terri Kim, Office of the General Counsel, United Automobile Insurance Company-Trial Division, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO REASONABLE, RELATED AND MEDICAL NECESSITY
THIS CAUSE came before the Court on August 10, 2009 for hearing on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Findings of Fact:The Plaintiff filed suit for Personal Injury Protection benefits on, December 27, 2007. The Plaintiff treated Kirt Godfrey from April 4, 2007 to November 2, 2007. The total amount billed is $7,695.00 dollars. The Plaintiff has filed the detailed affidavits of billing clerk Craig Dempsey and the patient’s treater Dr. Craig Berko D.C. The Defendant has filed the affidavits of Dr. Bradley I. Simon D.C.1 and Nicole Bonaparte. Dr. Simon D.C. opines “the treatment notes submitted do not justify the treatment or diagnostic testing, including x-rays and digital interpretation performed, and reimbursement for all services other than the initial exam should be denied”. Dr. Simon D.C. does not render an opinion as to the reasonableness, relatedness and medical necessity of the treatment. Similarly, Nicole Bonaparte opines “if services and/or procedures are not documented, they are not billable”. Bonaparte does not give her opinion as to what a reasonable charge is for any of the services rendered.
Conclusions of Law. The Plaintiff has established their prima-facie burden as to reasonable, related and medical necessity (“RRN”). The party seeking to contest an expert opinion must either: (1) present countervailing expert testimony, (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532 (Fla. 4th DCA 2000) citing Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1993).
The Defendant has failed to present countervailing expert testimony that opines that the treatment was not reasonable, related or medically necessary.
Any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN. Florida Statute §627.736(1)(a) defines required benefits and states that every PIP policy shall pay 80% of all “reasonable expenses for medically necessary” services. Florida Statute § 627.736(5)(d) states that all statements and bills for medical services rendered by any physician shall be on CMS 1500 forms. It is undisputed that the Plaintiff complied in this case. Completely absent from the PIP statute is any obligation to submit medical records in order to be paid2 or that the medical provider meet any standard for thoroughness as precondition of payment by an insurer. Because the PIP statute does not specifically provide that inadequate record keeping is a lawful basis for non-payment, it may not form a lawful basis for non-payment of medical bills. As the entirety of Dr. Simon’s opinion concerns the adequacy of the records and not the necessity of the treatment, it does not create a genuine issue of material fact as it pertains to the reasonableness, relatedness and medical necessity of the treatment.
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to Reasonableness, Relatedness and Medical Necessity.
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1As an ancillary note, the Court notes that the “Records Review” performed by Dr. Simon D.C. was performed almost nine months after suit was initiated.
2Unless requested pursuant to Florida Statute § 627.736(6)(b). It is undisputed no medical records were requested from the Plaintiff in this case.
