16 Fla. L. Weekly Supp. 222b
Online Reference: FLWSUPP 163HODGE
Insurance — Personal injury protection — Peer review report — Civil procedure — Error to strike peer review report and doctor’s affidavit which was attached to and made part of defendant’s affidavit in opposition to plaintiff’s motion for summary judgment — Error to exclude peer review doctor as witness solely on ground that he conducted peer review that did not comply with section 627.736 — Errors were harmless
UNITED AUTOMOBILE INSURANCE COMPANY, Defendant/Appellant, vs. GOLDEN GLADES OPEN MRI & IMAGING CTR DBA FOUNTAIN, a/a/o GABRIELLA HODGES. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-488 13. L.T. Case No. 03-17295 COCE 49. December 5, 2008. Counsel: Lara Edelstein, Miami. Marc Finkelstein, Plantation.
OPINION
(LEROY H. MOE, J.) This is an appeal from the Broward County Court. The issue is the interpretation and application of Florida Statute 627.736. The issue arose when the appellant insurance company declined to pay PIP benefits for one of its insured, after she was allegedly injured in a motor vehicle accident.
On appeal is an Order granting a Motion for Summary Judgment for the Appellee, who was the Plaintiff below. Before granting summary judgment, the trial court entered an Order granting Plaintiff’s Motion to Strike Peer Review and to Strike Defense Expert Witness, Peter Millheiser, M.D. The Peer Review was attached to and made part of the Defendants affidavit in opposition to Plaintiff’s Motion for Summary Judgment.
By so doing, the defendant appellant was left without any defense to Plaintiff’s Motion for Summary Judgment, and, if the case would have proceeded to trial, the Plaintiff could not have called that doctor as a witness.
The striking of the Defendant’s doctors affidavit and Peer Review was error. There is no provision in the Florida Rules of Civil Procedure that authorizes a court to strike an affidavit from the record for the reasons recited in the Order referred to above. It is suggested that perhaps the court wrongfully intertwined the Florida Statutes with the Florida Rules of Civil Procedure.
The two must be considered separately for obvious reasons, the main one being the fact that the Florida legislature enacts the statutes while the Florida Supreme Court is still ultimately responsible for approving the Rules of Procedure.
It was also error for the trial court to entirely “strike” Dr. Millheiser as a (potential) witness in the case, just because the Court found he compiled or conducted a “Peer Review” that the Court found did not comply with Fla. Stat. 627.736. This finding alone is insufficient to totally disqualify the doctor as a potential witness.
However, after considering the entire record on appeal, all applicable Florida Statutes, the briefs of the parties, all the opinions from the various courts construing and applying the applicable statutes, the oral arguments of the parties and being otherwise as fully advised as possible, this Court finds that the errors of procedure mentioned above fall in the category of harmless errors, that do not require reversal of the Order on appeal.
In other words, the trial court appears to have reached the right destination on the issue of the substantive rights of the parties, even though the road taken to arrive there was not the shortest, smoothest or most likely to succeed.
THEREFORE, the Order on Appeal is AFFIRMED and this case is remanded to the Broward County Court for further proceedings.
