16 Fla. L. Weekly Supp. 352a
Online Reference: FLWSUPP 164JOHNS
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider has filed affidavit of physician opining that MRI was related and necessary to diagnose insured’s injuries, insurer has not filed any opposing evidence, and insurer’s adjuster testified in deposition that insurer was not disputing that MRI was related and necessary, there is no genuine issue of material fact, and provider’s motion for summary judgment as to reasonableness, relatedness and necessity of treatment is granted
STAND-UP MRI OF MIAMI, (KIMENITA JOHNSON, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-004085 CONO 70. February 16, 2009. Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Majid Vossoughi, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO REASONABLE, RELATED AND NECESSARY
THIS CAUSE came before the Court on January 28, 2009 for hearing on Plaintiff’s Motion for Summary Judgment. The Court, having reviewed the Motion and entire Court file; heard argument of counsel; reviewed relevant legal authorities; and been sufficiently advised on the premises, makes the following findings:
BACKGROUND
1. The instant cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on June 18, 2008.
2. On or about October 1, 2008 Defendant filed its Answer and Affirmative Defenses.
3. The only remaining issue is whether the medical expenses at issue were necessary and related to the automobile accident as set forth in the Complaint.
4. There are no other issues outstanding in this matter as the Plaintiff has met its burden of proof and all affirmative defenses raised in Defendant’s Answer and Affirmative Defenses have been disposed of by prior Orders.
UNDISPUTED FACTS
5. Patient, Kimenita Johnson, was involved in a motor vehicle accident on March 5, 2006.
6. Patient, Kimenita Johnson, executed an Assignment of Benefits to the Plaintiff, Stand Up MRI of Miami, Inc.
7. On July 3, 2006, Plaintiff, Stand Up MRI of Miami, Inc., provided MRI services to Kimenita Johnson.
8. Plaintiff timely mailed its bill on behalf of Kimenita Johnson’s July 3, 2006 MRI to Defendant UNITED AUTOMOBILE INSURANCE COMPANY.
9. On August 15, 2008 Plaintiff filed its Motion for Summary Judgment as to the issue of reasonableness, relation and the necessity of the treatment rendered by the Plaintiff.
10. Plaintiff filed and relied upon the Affidavit of Dr. Eric Brock Snider, D.C., in which the doctor testified under oath that, in his professional chiropractic opinion, within a reasonable degree of certainty and probability, the lumbar MRI of July 3, 2006 was both related and necessary to accurately diagnose Ms. Johnson’s injuries sustained as a result of the subject automobile accident.
11. “In order to create any genuine issue of material fact regarding whether the subject medical expenses were reasonable, related or necessary as a result of the accident, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from the licensed physician,” Cicero Ortho-Med Center v. United Automobile Insurance Co., 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade County Court, 2004); Jarrell v. Churm, 611 So.2d 69 (4th DCA 1993).
12. 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, 533 (Fla. 4th DCA 2000) (citing Jarrell). UNITED has not met this burden.
13. Under the holdings of existing case law, the affidavit of the medical provider stating that care given to the patient was reasonable, related and necessary is sufficient for the Plaintiff to meet its burden of proof as to this element of the claim. Progressive Express Insurance Company v. Quality Diagnostic Inc., 13 Fla. L. Weekly Supp. 433a (2006); Total Health Care Chiropractic, P.A. v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 505a (2006); United Automobile Insurance Company v. Weschel Pain and Rehab Center, Inc., 12 Fla. L. Weekly Supp. 1035a (2005); Interscan Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 377a (2004).
14. The Defendant did not file any summary judgment evidence in opposition to the Plaintiff’s motion.
15. Moreover, on June 5, 2008, Ninel Baptiste, adjuster for UNITED, testified under oath in her deposition that United was not disputing whether or not the MRI was related to the automobile accident or medically necessary as follows:
Q. So there is no issue with regard to whether or not the MRI was related to the accident or medically necessary?
A. No.
Cross examination:
Q. Ma’am, according to your five years of experience working with United Auto, when United receives a Demand Letter and demands a certain amount per payment in a particular case, is it United’s position that they are required to pay the amount demanded or is it United’s position that they are only required to pay the amounts payable that are reasonable, related and necessary?
A. Reasonable, related and necessary.
Q. Have you done that in this case, ma’am?
A. Yes.
(Deposition transcript Page 13 Lines 2-5 and Page 30 Lines 4-14).
16. A party opposing a motion for summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. McKean v. Kloeppel Hotels, Inc., 171 So.2d 552 (Fla.App. 1965).
17. Since Dr. Snider’s Affidavit is sufficient for Plaintiff to meet its burden of proof as to reasonableness, relation and necessity of the treatment rendered, since the Defendant did not file any summary judgment evidence in opposition to the Plaintiff’s motion, and since Ninel Baptiste, the adjuster for UNITED, testified under oath in her deposition that United was not disputing whether or not the MRI was related to the automobile accident or medically necessary, this Court finds there is no genuine issue of material fact and the Plaintiff is entitled to judgment in its favor as a matter of law.
It is therefore,
ORDERED AND ADJUDGED Plaintiff’s Motion for Summary Judgment as to the reasonableness, relation and the necessity of the treatment rendered by the Plaintiff is hereby granted.
