16 Fla. L. Weekly Supp. 295b
Online Reference: FLWSUPP 164SEGUR
Insurance — Personal injury protection — Withdrawal of benefits — Valid peer review report to support withdrawal of benefits must be supported by independent medical examination, not merely review of treating physician’s records — Error to allow medical provider to argue at closing argument that if he did not recover over $2,500 he would recover no money at all due to application of deductible — Error was either waived by insurer’s failure to object or was harmless because amount of deductible was submitted to jury in another form without objection
Cert. granted. 34 Fla. L. Weekly D2054a (United Auto. Ins. Co. v. Total Rehab & Medcal Center, Inc. (Fla. 3DCA 10/7/2009).
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. TOTAL REHAB & MEDICAL CENTER, INC., a/a/o Arcadio Segura, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-515 AP and 07-571 AP. L.C. Case No. 04-2722 SP 25. February 20, 2009. An appeal from the County Court for Miami-Dade County, The Honorable Jacqueline Schwartz presiding. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Christian Carrazana, for Appellee.
(Before ESQUIROZ, COHEN, and BARZEE FLORES, JJ.)
(COHEN, J.) United Automobile Insurance Company appeals a final judgment entered subsequent to a jury verdict in favor of Total Rehab & Medical Center, Inc. United argues that the trial court erred in excluding evidence regarding its peer report and in permitting testimony and closing argument regarding the operation of the deductible. We affirm.
In the instant case, United Auto wished to rely upon a peer review report as evidence that the treatment rendered to its insured was not related or necessary.1 The peer review report was based solely upon a review of the records created by the treating physician. Neither the physician who prepared the peer review report nor any other physician conducted an independent medical examination (IME). The trial court excluded the peer review report and expert testimony concerning the report on the ground that the doctor who prepared the report did not personally examine the insured. As the Appellee concedes, this specific basis for excluding the evidence concerning the peer report was incorrect.
In an opinion that came out after the conclusion of the case below, Florida’s Third District Court of Appeals determined that a physician who prepares a peer review report need not have personally examined the insured in order for the report to be valid. United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008). However, the Court did not consider whether a peer report is valid when it is based solely upon the records of the treating physician, or whether the report must be based upon an independent medical examination performed by someone other than the treating physician. No District Court or Florida Supreme Court decision binds us. The 11th circuit courts sitting in their appellate capacities have offered varying opinions on this issue.2
This Court, agrees with, and adopts in full, the well-reasoned opinion by Judge Emas in United Auto. Ins. Co. v. Metro Injury & Rehab Ctr. a/a/o Magda Davis, Case No.: 07-437 AP (Fla. 11th Jud. Cir. App. Nov. 13, 2008), holding that a peer review report must be supported by an IME and not simply a review of the treating physicians’ records. Since the only records examined by the physician who prepared the peer report in the instant case were those of the treating physician, and because no IME was performed, the peer review was not valid. Accordingly, the trial court was correct in excluding the peer review report, but reached the right conclusion for the wrong reason. Nonetheless, the summary judgment must be affirmed. See D.R. Horton, Inc. — Jacksonville v. Peyton, 959 So. 2d 390 (Fla. 1st DCA 2007).
United also argues that the trial court erred in permitting closing argument concerning how the deductible would be applied. Specifically, the trial court allowed the Plaintiff to argue at closing argument that if the Plaintiff did not recover over $2500, the operation of the insurance policy’s deductible would cause him to recover no money at all. We find that it was improper to allow argument to the jury regarding the operation of the deductible. The application of a deductible provision is not an affirmative defense, Digital Medical Diagnostics v. United Auto Ins. Co., 958 So. 2d 505, 507 (Fla. 3d DCA 2007), and therefore, the court, rather than the jury should determine the proper set-off based on a deductible. See Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla. 2d DCA 2004).
“A trial court’s error in admitting or rejecting evidence does not necessarily constitute harmful error. The trial court’s judgment should be reversed only where it appears that such error injuriously affected the substantial rights of the complaining party”. Great Harbour Cay Realty and Investment Company Limited v. Carnes, 862 So. 2d 63, 66 (Fla. 4th DCA 2003) (quoting Centex-Rooney Const. Co., Inc. v. Martin County, 706 So. 2d 20 (Fla. 4th DCA 1997). “On appeal, the appellant must demonstrate not only error in improperly admitting evidence, but also prejudice from such admission.” Tormey v. Trout, 748 So. 2d 303, 306 (Fla. 1999); see also Wall v. Alvarez, 742 So. 2d 440, 442 (Fla. 4th DCA 1999).
In this case, although it was error to allow closing argument on the issue of the deductible, the error was either waived and/or harmless. During closing argument, United made no contemporaneous objection when the comments were made regarding the deductible, and it neither asked for a cautionary instruction from the court or moved for a mistrial. Accordingly, United failed to preserve for appeal any objection to the offending remarks. Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1027 (Fla. 2000). Moreover, information regarding the deductible was submitted to the jury in another form without objection from United. Specifically, a “declaration sheet” and a “no-fault payment” register were admitted into evidence, each of which indicated that a $2,000 deductible existed. Therefore, the amount of the deductible was known to the jury. The jury’s verdict granted the Plaintiff only the amount of the bills presented to them and not $2,000 in excess of that amount. Accordingly, the argument to the jury, if not waived, constitutes harmless error.
For reasons stated above, we determine that there is no reasonable possibility that the claimed error in allowing argument relating to the deductible contributed to the verdict and, therefore, find it to be harmless. See Lieberman v. Pianeta Miami, Inc., 865 So. 2d 662, 663 (Fla. 3d DCA 2004).
Appellee’s Motion for Attorney’s Fees is Granted pursuant to §627.428, Fla. Stat.
AFFIRMED. (ESQUIROZ and BARZEE FLORES, JJ. concur.)
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1The parties stipulated to the reasonableness portion of the reasonable, related, or necessary standard.
2See, e.g., United Auto v. Stand-Up MRI of Miami, 15 Fla. L. Weekly Supp. 319a (11th Cir. Ct. February 1, 2008); United Auto v. Isot Medical Center, 15 Fla. L. Weekly Supp. 322a (11th Cir. Ct. Feb. 14, 2008) (peer review can be based on a review of the treating physicians records or medical records alone). But see United Auto v. Hollywood Injury Rehab, 15 Fla. L. Weekly Supp. 1052a (11th Circuit Sept. 11, 2008); State Farm Fire and Casualty Company v. Perdomo, Case No.: 07-458 AP (Fla. 11th Jud. Cir. App. December 15, 2008) [16 Fla. L. Weekly Supp. 137a] (a valid peer review must be based on an IME).
