16 Fla. L. Weekly Supp. 630a
Online Reference: FLWSUPP 167ADAMS
Insurance — Personal injury protection — Withdrawal of benefits — Valid medical report — PIP statute does not require physician preparing peer review report supporting withdrawal of benefits to examine insured or to state that every medical record has been examined
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ELIZABETH ADAMS, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 06-14686 (11), 06-19032 (05). May 14, 2009. Counsel: Lara Edelstein, Miami Gardens. Dean A. Mitchell, Ocala. Cris E. Boyar, Margate.
OPINION
[Editor’s note: Lower court order published at 13 Fla. L. Weekly Supp. 1235a]
(ANA I. GARDINER, J.) THIS CAUSE is before the Court on consolidated appeals from the trial court’s 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, having reviewed the record, and being otherwise fully advised in the premises, finds and decides as follows:
On May 22, 2003, Elizabeth Adams, who was insured by defendant United Automobile Insurance Company sustained injuries as a result of a car accident. As a result of the accident, Ms. Adams received care and treatment by several medical providers. Defendant requested Dr. Peter Millheiser to review Ms. Adams’ medical records. Upon his review, Dr. Millheiser advised United Auto that the treatment rendered to Ms. Adams was unreasonable, unrelated to the accident, and medically unnecessary. Based on Dr. Millheiser’s report, United Auto declined payment for the medical treatment.
On or about June 8, 2006, plaintiff filed suit against United Auto. In the complaint, plaintiff alleged she was owed for the medical treatments rendered to her and that United Auto had breached her insurance policy for failing to pay PIP benefits relating to an injury arising from the accident. United Auto filed its answer to the complaint in which it denied liability. As an affirmative defense, United Auto asserted that the medical services, bills and treatment were not reasonable, related and necessary.
On or about July 3, 2006, plaintiff filed a motion for summary judgment asserting that there was no dispute that the treatment was reasonable, related and necessary as a result of the accident. In support of the motion, plaintiff filed the affidavits of the treating physicians, Dr. Michael Pollack, Dr. Kenneth Jarolem and Dr. Jonathan Aarons. United Auto opposed the motion for summary judgment and attached an affidavit from Dr. Millheiser stating that he had conducted a peer review of the medical reports, notes, forms, medical bills and services submitted on behalf of plaintiff. The affidavit stated that a copy of the peer review expressing his opinions, findings and conclusions was attached as an exhibit. The trial court held a hearing on the motion for summary judgment on August 15, 2006. Although no peer review report is included in the appellate record, a review of the transcript of the summary judgment hearing does reveal that the trial court had a copy of the peer review report at the time of the hearing. Counsel for plaintiff argued that the trial court should not consider the peer review report because it was conclusionary, it referenced records and things not part of the case, it failed to include medical records at issue, and that the peer review report was not accompanied by another physical examination. Counsel for plaintiff cited to an opinion issued by the Hon. Ronald Rosenberg which found that the peer review failed to meet the requirements of Section 627 due to the failure to indicate that the doctor examined the patient. The trial court found Judge Rosenberg’s opinion to be persuasive and granted summary judgment in favor of Ms. Adams based on failure of the report of Dr. Millheiser to indicate that he examined Ms. Adams or that the treatment records reviewed were complete. In the order granting summary judgment, the trial court found that the affidavit of Dr. Millheriser was insufficient as a matter of law and stated that “[t]he Court fins the peer [sic] and affidavit prepared by Dr. Millheiser makes it clear he did not perform a physicial examination or make a complete review of the medical records before the time of the Summary Judgment hearing.” The Order further stated that the Court was relying on Judge Rosenberg’s decision in United v. Wechsel, 12 Fla. L. Weekly Supp. 1035a (Fla. 17th Cir. 2006). A Final Judgment was entered in favor of plaintiff/appellee on September 7, 2006, and a Final Judgment and Order on plaintiff s motion for reasonable attorney’s fees was entered that the report concluded that the MRI was not medically reasonable, necessary or related. This timely appeal followed.
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. Millheiser filed a report with United Auto which stated that he was a licensed physician and that he had examined the medical records on Ms. Adams. Dr. Millheiser’s affidavit stated that he had reviewed the medical records and documents regarding Ms. Adams.
At the time of Judge Rosenberg’s decision in United v. Wechsel, which was relied upon by the trial court, he did not have the benefit of the decision of United Automobile Insurance Company v. Bermudez, 980 So.2d 1213, 1215 (Fla. 3d DCA 2008). In that case, 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 questions 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 protections 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.”
Section 627.736(7)(a) 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.” Nothing in the statute or in the holding of Bermudez requires the physician to exam the injured person, or to state that every single record has been examined. As such, the report issued by Dr. Millheiser was a valid report under §627.736(7)(a) and the trial court erred in ruling Dr. Millheiser’s affidavit insufficient as a matter of law.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s 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.
