16 Fla. L. Weekly Supp. 632a
Online Reference: FLWSUPP 167PETER
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Peer review physician’s affidavit is insufficient where affidavit failed to make any showing of affiant’s competency to act as PIP medical expert by complying with record-keeping requirement, failed to specify which medical records and insurance forms physician reviewed, identified the records reviewed as those of a person other than insured, and offered little if any explanation for affiant’s opinions — Conclusory statements that peer review physician saw no justification for use of heating pad or for “other bills” were insufficient to support finding that material fact regarding reasonableness or necessity of treatment is at issue — Order granting summary judgment in favor of medical provider is affirmed
Quashed at 35 Fla. L. Weekly D620a. (United Auto Ins. Co. v. Peter F. Merkle, M.D., P.A., Fla. 4DCA, March 17, 2010)
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. PETER F. MERKLE, M.D., P.A., Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-4042 (21). L.C. Case No. 05-14786 COCE (49). April 21, 2009. Counsel: Thomas Hunker, United Automobile Insurance Company, Miami. Roberts J. Bradford, Jr., Johnson City, TN.
OPINION
(CHERYL J. ALEMÁN, J.) THIS CAUSE comes before this Court, in its appellate capacity, upon the timely appeal by United Automobile Insurance Company (“Insurer”) of the trial court’s January 15, 2008 order granting Appellee’s Motion for Summary Judgment and the trial court’s March 27, 2008 order granting Appellee’s Motion for Fees and Costs. The Court has considered the briefs of both parties, the record on appeal, the applicable law, including supplemental authority submitted, and the oral arguments of both counsel.
Terry Laray (“the Insured”) was involved in an automobile accident on or about July 24, 2004. The Insured received care from the Appellee from July 29, 2004 through September 16, 2004. Appellee submitted the bills to Appellant Insurer. Appellant Insurer denied the claim and the instant lawsuit ensued.
Appellee moved for summary judgment on the issue of whether the medical treatment rendered to the Insured was reasonable, related, and necessary (RRN). In support of its motion, Appellee filed the affidavit of Dr. Peter F. Merkle, attesting that the services he provided were medically necessary, related to the automobile accident of July 24, 2004, and that all charges were reasonable. Appellee also filed affidavit of the billing manager, Stephanie Tagland attesting that the charges were reasonable.
In opposition to Appellee’s motion, Appellant Insurer filed the affidavit of Dr. Richard L. Glatzer, incorporating his “peer review” report. Dr. Glatzer’s affidavit was based solely on his review of Dr. Merkle’s examination and treatment records of a person he identified as “Mr. Terry Loray.” Appellant Insurer did not obtain a physical examination of the Insured by Dr. Glatzer or by any other physician.
At the December 18, 2007 hearing, the trial court granted Appellee’s motion for summary judgment.
Final Judgment in favor of the Plaintiff was entered on January 15, 2008 in the amount of $1,345.68. As the prevailing party, Appellee also moved for attorney’s fees and costs, which the trial court awarded. The Insurer timely filed Notice of Appeal. The two judgments were consolidated by order of this court for purposes of appeal.
The standard of review for a lower court’s order granting summary judgment is de novo. Progressive Auto v. One Stop Medical, Inc., 985 So.2d 10 (Fla. 4th DCA 2008). The reviewing court must determine whether, based upon the affidavits, there is a genuine issue of material fact. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So.2d 126 (Fla. 2000).
The trial court herein properly entered summary judgment, as Dr. Glatzer’s affidavit failed to meet the requirements of F.R.Civ.P. 1.510. It was conclusory and failed to show the existence of any genuine issue of material fact, the nonexistence of which genuine issues Appellee’s affidavits demonstrated.
Rule 1.510(e) of the Florida Rules of Civil Procedure sets the minimum requirements for affidavits used in support of or in opposition to a motion for summary judgment. It states, in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or several therewith. F.R.Civ.P. 1.510(e)
(emphasis added).
Dr. Glatzer’s affidavit falls short of these requirements. See, e.g.: Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So.2d 207, 209 (Fla. 4th DCA 1992).
The affidavit fails to make any showing of Dr. Glatzer’s competency to act as a PIP medical expert in that it fails to allege that he complied with Subsection (7)(a)’s requirement that he maintain, for three years, copies of all of his (7)(a) reports and payment records. Although the affidavit states that Dr. Glatzer is in active practice, it fails to make any mention of compliance with the record-keeping requirement. This is fatal. See United Auto. Ins. Co. v. Florida Institute of Pain, Inc. a/a/o Lita Chavis, 15 Fla. L. Weekly Supp. 569a (Fla. 11th Jud. Cir. March 26th, 2008), Fla. Stat. §§ 627.736(7).
Moreover, the affidavit does not specify whether the affiant reviewed only some or all of Dr. Merkle’s records; which physical therapy notes the affiant reviewed and which health claim insurance forms he reviewed. Indeed, the affiant concedes he could not read some documentation and did not understand at least some portion of the documentation he actually reviewed. Further, the affiant identified the records he reviewed as those pertaining to a patient named “Terry Loray,” whereas the Insured’s name is “Laray.” It is impossible to determine from the affidavit itself whether Dr. Glatzer’s opinions are based on a review of all medical information available to Dr. Merkle re: the Insured or only select portions of it; or to an entirely different individual.
Further, the affiant gives no medical and little factual history of the Insured. He lists no subjective complaints. He offers no discussion of Dr. Merkle’s treatment plan or details on how it deviated, if at all, from the proper standard of care. The affiant gives no diagnosis and no prognosis. He offers little, if any, explanation for his opinions. The affiant stated there was “no justification for” the heating pad under a particular code, but he did not deny its use as a reasonable, related, or necessary alternative. The fact that an alternative treatment might also prove useful does not necessarily make the use of the heating pad “unreasonable” or “unnecessary.”
The fact that “affiant saw” no justification for the heating pad or physical therapy is not a denial of its objective reasonableness or necessity. Indeed, the affiant stated that Dr. Merkle’s care was not “totally inappropriate.” In light of a specific diagnosis and treatment, the affiant’s statement that he “saw” no justification for “other bills,” without specifying what those bills were for or why any treatment reflected thereby was not “reasonable” or “necessary,” is a conclusory statement, insufficient to justify a finding that any material fact is at issue.
In summary, the affidavit fails to state whether the medical treatment rendered was reasonable, related, and necessary and, if not, why not. The subject affidavit is devoid of particulars and offers little more than the denial found in United Auto’s Answer to the Complaint. Accordingly, the trial court was correct in concluding that no issue of material fact existed and correctly granted summary judgment.
While an expert’s affidavit offered in opposition to a motion for summary judgment need not list every detailed fact that the witness would offer while on the witness stand at trial, it cannot consist of mere conclusions, unsupported by facts. Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978). Further, it must be based on the personal knowledge of the witness about the patient at issue; and the witness must demonstrate in the affidavit that he is competitive [sic] to testify to the matters therein.
The trial court’s order of granting summary judgment and awarding final judgment, including attorney fees and costs, is AFFIRMED.
The Appellee’s Motion for Appellate Attorney Fees is granted pursuant to Fla. Stat. §§ 627.736(8) and 627.428. The matter is remanded to the trial court for further proceedings consistent with this opinion.
