16 Fla. L. Weekly Supp. 332a
Online Reference: FLWSUPP 164TUOME
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Treating physician’s affidavit that charge at issue has been largely unchanged in eight years of practice and that other insurance companies have paid the charge when submitted was sufficient to shift to defendant the burden of showing that genuine issue of fact exists — Evidence that insurer determined allowable charge based on Medicare Part B fee schedule is not sufficient to raise disputed issue of fact as to reasonableness of fees charged by medical provider in non-Medicare context — Provider’s motion for summary judgment is granted
SPINE & REHAB MEDICINE, P.A., (as Assignee of Thomas Tuomey), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-CC-2007-1103. January 22, 2009. Kurt E. Hitzemann, Judge. Counsel: Timothy A. Patrick, Nicholas & Patrick, P.A., Tampa. Adam R. Filthaut, Adams & Diaco, P.A., Tampa.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER having come before the Court on the Plaintiff’s Motion for Summary Judgment and the Court having reviewed the file, the pleadings, heard the arguments of counsel and the Court being otherwise fully advised in the premises, finds as follows:
1. The single issue in this case is the reasonableness of the amount charged by Plaintiff for medical services provided to Mr. Tuomey.
2. In support of its Motion for Summary Judgment, the Plaintiff has filed the affidavit of Suhas Kulkarni, M.D., the owner of the Plaintiff and also treating physician of Mr. Tuomey.
3. Dr. Kulkarni’s affidavit states that he is the treating physician, that the charge at issue has been largely unchanged in eight years of practice and that other insurance companies have paid the charge when submitted.
4. The Court finds that the Plaintiff’s affidavit is sufficient to meet its burden of proving the absence of a genuine issue of material fact and that the burden to show such a genuine issue of fact shifts to the Defendant. Holl v. Talcott, 191 So.2d 49 (Fla. 1966).
5. The Defendant filed no affidavits in opposition to Summary Judgment.
6. Counsel for Defendant argued that the Defendant determines the allowable charge for a CPT code by taking 200% of the amount allowed for that code under the Medicare Part B fee schedule. This fact was also before the Court in the deposition testimony of Cindy Filko, an employee of the Defendant.
7. The Defendant’s explanation for how it determined an allowable charge is not sufficient to raise a disputed issue of material fact that the fees charged by Dr. Kalkarni are reasonable in a non-Medicare context. See Mitchell R. Pollack, M.D., a/a/o Mark Holland v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp. 381 (County Court for the 17th Judicial Circuit, Broward County, February 1, 2006).
8. The pleadings on file and record evidence submitted herewith demonstrate conclusively that no genuine issue of material fact exists on these issues. Therefore, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED.
