16 Fla. L. Weekly Supp. 516c
Online Reference: FLWSUPP 166DESHO
Insurance — Personal injury protection — Appeals — Transcript — Insurer appealing summary judgment was not required to provide transcript of summary judgment hearing to appellate court — No merit to claim that insurer did not preserve issues for appeal by raising issues below — Summary judgment — No merit to argument that peer review physician’s affidavit must state that it is filed in opposition to summary judgment where affidavit is identified in response to motion for summary judgment — Withdrawal of benefits — Medical report — Although medical report relied upon for withdrawal of benefits must be supported by physical examination, there is no requirement that physician conducting examination be retained by insurer — Statute does not require peer review physician to state in report that physician meets record keeping requirements of section 627.736(7) — Trial court erred in refusing to consider peer review and in finding that peer review failed to create issue of fact
Certiorari denied at 34 Fla. L. Weekly D2396a (Central Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire and Cas. Ins. Co., Fla. 4DCA, 11-18-2009)
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellant, vs. CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD., a/a/o Evelyn Deshommes, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-5483. L.T. Case No. 06-17925 COCE 50. (consolidated with 08-13111 CACE 05). March 30 2009.
CORRECTED OPINION
(DAVID KRATHEN) THIS CAUSE is before the Court on consolidated appeals from the trial court’s December 3, 2007 Order Granting Plaintiff’s Motion for Final Summary Judgment and Final Judgment, and a Final Judgment Awarding Plaintiff Attorney’s Fees and Costs. This Court, having reviewed the parties’ briefs and the record, and being otherwise fully advised in the premises, finds and decides as follows:
On or about March 5, 2005, Evelyn Deshommes, who was insured by State Farm Fire and Casualty Company (hereinafter “State Farm”), received injuries as a result of an automobile accident. Ms. Deshommes received chiropractic treatments by Advanced Chiropractic and Medical Center (hereinafter “Advanced Chiropractic”), as a result of the accident. On June 10, 2005, Advanced Chiropractic referred her to Central Magnetic Imaging Open MRI of Plantation (hereinafter “CMI”) for an MRI. CMI received an assignment of benefits from Ms. Deshommes and performed the MRI. Five days after the MRI, Advanced Chiropractic terminated Ms. Deshommes’ treatment. In December 2005, State Farm requested Gene Jenkins, Jr., DC to review Ms. Deshommes’ medical records from Advanced Chiropractic and CMI. Upon his review, Dr. Jenkins advised State Farm that the MRI was unreasonable, unrelated to the March 5, 2005, accident, and medically unnecessary. Based on Dr. Jenkins’ report, State Farm declined payment of CMI’s bill.
In March 2007, CMI, as assignee of Evelyn Deshommes, filed suit against State Farm. In its amended complaint, CMI alleged it was owed $1,850 for an MRI performed on Ms. Deshommes; and that State Farm had breached Ms. Deshommes’ insurance policy by failing to pay PIP benefits relating to an injury arising from the March 5, 2005, accident. State Farm filed its answer to the amended complaint denying that CMI had a valid assignment and denying liability. As an affirmative defense, State Farm asserted that the medical services, bills and treatment were not reasonable, related and necessary.
In September 2007, CMI filed a motion for summary judgment, asserting that there was no dispute that the treatment was reasonable, related and necessary or a result of the accident. In support of the motion, CMI filed the affidavits of the treating physicians, Dr. Amir Kermani, DC. and Dr. Valerie Valenzuela, DC. CMI argued that State Farm was prohibited from contesting the MRI bill because it had failed to comply with §627.736(7)(a), which is a condition precedent to withdrawal of payment. Additionally, CMI argued that Dr. Jenkins’ report was not a valid report, because it was based solely upon a records review and not factually supported by an examination of the insured. State Farm opposed the motion for summary judgment, arguing that Dr. Jenkins’ report was a valid report and that the report concluded that the MRI was not medically reasonable, necessary or related. In support, State Farm attached the affidavit of Dr. Jenkins. In the affidavit, Dr. Jenkins stated that he is a chiropractic physician licensed to practice in Florida and that, based on a review of the medical records and documents provided to him regarding Ms. Deshommes, the medical treatment and MRI were not medically reasonable, necessary or related. State Farm later filed an amended affidavit of Dr. Jenkins, which listed the documents he reviewed in rendering his opinions.
CMI’s motion for summary judgment was heard before the trial court on November 14, 2007. The trial court held that Dr. Jenkins’ report was “not a valid report as defined by Section 627.736(7), Fla. Stat., which provides that a report based upon a review of medical records report must also be factually supported by an actual physical examination.” The trial court also found that the affidavit of Dr. Jenkins failed to indicate whether or not Dr. Jenkins meets the record keeping requirements of Section 627.736(7), or that the complete medical records were reviewed and, therefore, the affidavit failed to create an issue of fact. The trial court denied State Farm’s motion for rehearing. On March 6, 2008, the trial court entered Judgment awarding attorney’s fees in the amount of $26,888.00, $562.00 in costs, and 4750.00 for the expert witness. This timely appeal follows.
State Farm argues that the trial court erred in concluding that Dr. Jenkins was required to physically examine Ms. Deshommes and that his failure to do so resulted in the his report not being a valid report, pursuant to §627.736(7)(a).
CMI argues in response that the trial court must be affirmed, because State Farm has failed to provide a transcript of the summary judgment hearing; State Farm’s arguments are not preserved for appeal; State Farm’s argument is based on a misinterpretation of the PIP statute and controlling Florida cases; the Jenkins Affidavit was incompetent to create a genuine issue of fact; and summary judgment must be affirmed on any ground in the record because it carries a presumption of correctness.
“A party moving for summary judgment must conclusively demonstrate the absence of any genuine issue of material fact and the moving party’s entitlement to judgment as a matter of law.” Gulfstream Park Racing Ass’n v. Gold Spur Stable, Inc., 820 So.2d 957, 960 (Fla. 4th DCA 2002) (citations omitted). The appellate standard of review pertaining to a trial court order granting summary judgment is de novo. Id. “On review, the court must indulge every possible inference in favor of the party against whom summary judgment was granted.” Id. The presumption of correctness generally applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence. Maynard v. Household Finance Corp. III, 861 So.2d 1204 (Fla. 2d DCA 2003).
“It is the burden of the appellant to bring up a proper record for consideration of the issues presented on appeal.” Seal Products v. Mansfield, 705 So.2d 973, 975 (Fla. 3d DCA 1998) (citations omitted). “Where the appeal is from a summary judgment, the appellant must bring up the summary judgment record, that, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion.” Id. “Those are the portions of the record essential to a determination whether summary judgment was properly entered.” Id. “However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taking of evidence . . . [c]onsequently, it is not necessary to procure a transcript of the summary judgment hearing . . . although it is permissible and often helpful to do so.” Id.
State Farm has provided the summary judgment record, including the motion, supporting and opposing papers and affidavits, and all other matters which were pertinent to the summary judgment motion for consideration on review. Contrary to CMI’s argument, State Farm is not required to bring to this Court a transcript of the summary judgment hearing.
CMI argues that summary judgment must be affirmed, because State Farm has raised points of error which were not argued to the trial court, and cannot be raised for the first time on appeal. However, a review of the record shows that State Farm did argue, in its opposition to the motion for summary judgment, that Dr. Jenkins’ affidavit, filed in support of its opposition, rebutted the affidavit of Dr. Kerman and created a factual issue. Further, in opposition to CMI’s argument that Dr. Jenkins’ report was not a valid report, State Farm argued that Dr. Jenkins performed a “peer review” on December 11, 2005, and the report was, in fact, valid under §627.726(7). As such, State Farm did raise these issues below and they were properly preserved for appeal.
CMI argues that the affidavit did not state that is was filed in opposition to the motion for summary judgment, as required by Fla. R. Civ. P. 1.510(c). CMI’s argument is misplaced. Fla. R. Civ. P. 1.510(c) states that “‘t]he adverse party shall identify . . . any summary judgment evidence on which the adverse party relies.” State Farm’s response in opposition to the motion for summary judgment states that Dr. Jenkins conducted a peer review and that his affidavit, which was filed in support of the opposition, states that, based upon that review, he concluded that the medical treatments were not reasonable, necessary or related to the accident. The affidavit was not required to state that it was filed in opposition to the motion for summary judgment.
CMI also argues that the trial court did not abuse its discretion in refusing to consider Dr. Jenkins’ affidavit and its finding that the affidavit did not satisfy the requirements of §627.736(7).
Section 627.736(7)(a) provides in pertinent part:
An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn stating that treatment was not reasonable, related, or necessary. A valid report is one prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.
In this case, Dr. Jenkins filed a report with State Farm, which stated that he was a licensed chiropractic physician and that he had examined the file on Ms. Deshommes, which included bills and records from Advanced Chiropractic and the bill and MRI report from CMI, as well as the examination under oath of Ms. Deshommes. Dr. Jenkins’ affidavit stated that he had reviewed the medical records and documents regarding Ms. Deshommes, which include bills and records from Advanced Chiropractic, bills and records from CMI, the police report, and Ms. Deshommes’ examination under oath. Dr. Jenkins’ amended affidavit stated that he reviewed a HCFA and MRI report from CMI, a review of HCFA forms, daily office notes, a letter from Pam McDole of Advanced Chiropractic and Ms. Deshommes’ examination under oath.
In United Automobile Insurance Company v. Bermudez, 980 So.2d 1213, 1215 (Fla. 3d DCA 2008), the trial court granted summary judgment for the insured, on the basis that the insurer did not satisfy the requirements of §627.736(7)(a), because the report of the doctor stating that the treatments were not reasonable, related or necessary was not a valid report, because it was based solely on his review of the medical records and was not supported by his own physical examination. The trial court certified the question of whether an insurer was required by section 627.736(7)(a), Florida Statutes, to obtain a medical report based upon a physical examination of an insured before it may withdraw personal injury protection benefits. The Third District Court of Appeal rephrased the question to read “[w]hether a medical report issued for the withdrawal of personal injury protection benefits pursuant to section 627.736(7)(a), Florida Statutes must be based upon a physical examination of the insured that is personally conducted by the physician issuing the report.” Id. at 1214. The Third District Court of Appeal looked at the language of the statute and the Senate Staff Analysis and Economic Impact Statement, Senate Bill 1092, at 12 (Fla. 2001), and disagreed with the trial court’s interpretation of the Senate Staff Analysis; and found that a “valid report” for the withdrawal of PIP benefits does not have to be based upon a physical examination conducted by the actual physician preparing the report. Id. at 1215. The Court stated that “[i]nstead, we hold that under section 627.736(7)(a) a medical report issued for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination .”
While CMI concedes that §627.736(7)(a) does not require the doctor preparing the report for the insured to conduct a physical examination of the insured, it argues that State Farm did not establish by competent, admissible evidence, that it had any physical examination by Dr. Jenkins, or any other physician, performed at State Farm’s request. However, nowhere in §627.736, Florida Statutes, or in Bermudez, is there any requirement that the physician conducting the examination of the insured be retained by the insurer. Section 627.736(7)(a) merely defines a valid report as “one prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” As such, the report issued by Dr. Jenkins was a valid report under §627.736(7)(a).
The trial court further found that Dr. Jenkins’ affidavit failed to create an issue of fact, because the affidavit failed to “indicate whether or not Dr. Jenkins, D.C. meets the record keeping requirements of Section 627.736(7), Fla. Stat.” Section 627.736(7) requires that the physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that, during the 3 years immediately preceding the date of the physical examination or review of the treatment records, the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions, or to the instruction of students in an accredited health profession school or accredited residence program or clinical research program that is affiliated with an accredited health profession school or teaching hospital or accredited residency program; and also requires the physician preparing a report at the request of an insurer, and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, to maintain, for at least 3 years, copies of all examination reports, as medical records, and shall maintain, for at least 3 years, records of all payments for the examinations and reports. Nothing in the statute requires the physician preparing the report to state that the physician meets these requirements.
Because the report issued by Dr. Jenkins was a valid report, as provided in §627.736(7)(a), the trial court erred in refusing to consider the report and finding that Dr. Jenkins’ affidavit and report failed to create an issue of fact.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s December 3, 2007 Order Granting Plaintiff’s Motion for Final Summary Judgment and Final Judgment is REVERSED. This matter is remanded to the trial court for further proceedings consistent with this Opinion.
It is further ORDERED AND ADJUDGED that, because the Order Granting the Motion for Summary Judgment is being reversed, the Final Judgment Awarding Plaintiff Attorney’s Fees and Costs is also REVERSED.
