17 Fla. L. Weekly Supp. 9c
Online Reference: FLWSUPP 1701MART
Insurance — Personal injury protection — Trial court erred in withholding from jury evidence that insured was pregnant at time of accident where pregnancy materially affected how medical provider was able to treat insured’s condition, and failure to fully understand reasons for provider’s initial limited treatment of insured may have caused jury to conclude treatment was not reasonable — Error to grant insurer’s motion for directed verdict as to reasonableness of provider’s bills where insured had submitted evidence that bills were reasonable
EVA MARTINEZ, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-277 AP. L.T. Case No. 03-010836 CC 25. November 5, 2009. On appeal from a decision of the County Court, Miami-Dade County. Counsel: Mark J. Feldman, for Appellant. Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before JOHNSON, LANGER, and CYNAMON, JJ.)
(LANGER, J.) On December 22, 2002, Appellant Eva Martinez was involved in an automobile accident in which she sustained personal injuries. She had been seated in the last seat of the back of a van that been transporting her at the end of her day’s work from her job site at Miami International Airport back to an employee parking lot where her car was parked. She was not wearing a seat belt (as none were available) when the van was hit hard in the right rear section by another vehicle. Martinez sustained injury to her back and neck.
When Martinez got home, she called 911 for transport to the hospital. She was six months pregnant at the time of the accident, and was concerned about possible injury to the unborn child. Fire Rescue transported her to the emergency room of Palmetto General Hospital.
About a week after the accident, Martinez made an appointment with Dr. Melvin Drucker, a board certified orthopedic surgeon. Dr. Drucker treated her, but was limited in what he could do in light of her pregnancy. For example, he did not order x-rays, nor did her prescribe any pain medication for her injuries. He instead gave her a neck brace and an orthopedic pillow, and explained how hot towels and exercise would offer some relief. In subsequent visits with Dr. Drucker, Martinez had given birth, but she was breast-feeding the child, so Dr. Drucker still did not prescribe pain medicine. Eventually, an MRI was ordered, which revealed the existence of two herniated disks in her lower back and neck. Dr. Drucker later prescribed anti-inflammatory and pain medicines, as well as a corset. Martinez saw Dr. Drucker seven times in total.
Martinez eventually sued Appellee United Automobile Insurance Company (“United Auto”) for personal injury protection (“PIP”) benefits under her policy with the insurer. The insurer had not paid Dr. Drucker’s bills (a total of $3,820.00). At trial, the trial court judge sustained United Auto’s objection to providing the jury with any information concerning the emergency room treatment as it related to Martinez’ pregnancy for fear the jury would improperly sympathize with her. Outside the presence of the jury, Martinez proffered Dr. Drucker’s testimony regarding how her pregnancy had altered his plan of treatment for the neck and back injuries. Plaintiff rested its case, and the defense moved for a directed verdict. The trial court denied the motion except as to the reasonableness of Dr. Drucker’s bills.
On the issue of reasonableness of Dr. Drucker’s bills, United Auto called its own medical expert, Dr. Peter Millheiser, a board certified orthopedic surgeon. He did a peer review of Martinez’ medical records and bills. He concluded that three of the seven visits Martinez made to Dr. Drucker were reasonable, for a total fee of $370.00. The defense rested and renewed its motion for directed verdict on the issue of reasonableness. The trial court granted the motion and this appeal followed.
We conclude that the trial court erred in excluding from jury consideration the evidence of Martinez’ pregnancy. Further, this matter should not have been resolved on a motion for a directed verdict, but rather should have gone to the jury. The issue of reasonableness became a question of fact once the bills were submitted into evidence.
When there is any evidence to support a verdict for a non-moving party, it is error for the trial court to grant a motion for a directed verdict. Banco Espirito Santo International, Ltd. v. BDO International, B.V., 979 So. 2d 1030 (Fla. 3d DCA 2008). The issue of whether or not the bills were reasonable should have been one for the jury. Here, the appellant/plaintiff had submitted evidence that Dr. Drucker’s bills were reasonable, that he had rendered services to her, and that he had not been paid by United Auto. See Easton v. Bradford, 390 So. 2d 1202 (Fla. 2d DCA 1980).
An additional error the trial court made was in limiting the admissible evidence concerning Martinez’ pregnancy at the time of the accident. It should have been fully explored, because the pregnancy materially affected how Dr. Drucker was able to treat her injuries. Herrera v. State, 879 So.2d 38 (Fla. 4th DCA 2004). The pregnancy limited the customary plan of treatment for Martinez’ injury. For example, x-rays, medication, and an MRI, which normally would be part of a customary plan of treatment, were not ordered until Martinez had finished breast-feeding her newborn. By not allowing the jury to fully understand the reasons why Dr. Drucker treated Martinez as he did, the jury may have concluded that his treatments were not reasonable.
We conclude that the final judgment entered for United Auto should be reversed and the matter remanded to the trial court so that a jury can review the issue of the reasonableness of Dr. Drucker’s bills, in light of the evidence of her pregnancy at the time of the accident and subsequent treatment.
REVERSED and REMANDED for proceedings consistent with this opinion. Appellant Martinez is also entitled to appellate attorney’s fees for prevailing in this matter, in an amount to be determined by the trial court on remand. See Motter Roofing, Inc. v. Leibowitz, 833 So.2d 788 (Fla. 3d DCA 2002). (JOHNSON and CYNAMON, JJ., concur.)
