17 Fla. L. Weekly Supp. 702a
Online Reference: FLWSUPP 1708SER2
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Affidavit of physician who conducted independent medical examination report which attempts to incorporate attached IME report, but fails to state proper foundation for admissibility under exception to hearsay rule, is legally insufficient — Court defers ruling on dates of service after IME cutoff to allow insurer to obtain legally sufficient affidavit and enters summary judgment for medical provider as to dates of service prior to cutoff
See 17 Fla. L. Weekly Supp. 832a
MEDICAL CONSULTANTS OF SOUTH FLORIDA, INC., (MAXIME SERVIUS, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-012164 COCE 53. May 3, 2010. Robert W. Lee, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Sean Sweeney, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO REASONABLE, RELATED & NECESSARY
THIS CAUSE came before the Court on February 8, 2010, for hearing on Plaintiff’s Motion for Partial Summary Judgment as to reasonable, related, and necessary. The Court having reviewed the Motion and the relevant portions of the Court file; heard argument of counsel; reviewed relevant legal authorities; and being sufficiently advised on the premises, finds as follows:
Background
1. This case arises out of a claim for Personal Injury Protection benefits resulting from an automobile accident occurring on or about April 2, 2003.
2. At the time of the accident, Maxime Servius, was insured pursuant to a policy of insurance issued by the Defendant which provided a minimum of $10,000.00 in personal injury protection benefits.
3. Patient, Maxime Servius, sought medical treatment from the Plaintiff, Medical Consultants of South Florida, for injuries he sustained as a result of the April 2, 2003 automobile accident.
4. Patient, Maxime Servius, treated at Medical Consultants of South Florida from August 13, 2003 through and including October 17, 2003.
5. Thereafter, Plaintiff timely submitted its bills to Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”).
5. On or about May 24, 2007, Plaintiff filed its Complaint and on July 16, 2007 Defendant served its Answer and Affirmative Defenses.
6. UNITED’s Third Affirmative Defense states that, “the charges were not reasonable, related, and/or necessary. An Independent Medical Examination (IME) was performed by Dr. Marvin Merrit, D.C., on 10/13/03 and notice regarding same was sent to the claimant on 10/06/031.”
7. On December 31, 2009 Plaintiff filed its Motion for Summary Judgment with respect to reasonable, related and necessary.
8. The Plaintiff obtained the sworn affidavit from the Claimant’s treating physician, Dr. Ronald Lewert, D.C., in which Dr. Lewert testified under oath that the treatment rendered to Maxim Servius from August 13, 2003 through October 17, 2003 was reasonable, medically necessary, and related to the automobile accident of April 2, 2003.
9. In opposition to Plaintiff’s motion for summary judgment, Defendant filed an affidavit of Dr. Marvin Merrit in which Dr. Merrit attempts to incorporate the Independent Medical Examination report attached to the affidavit.
10. In his affidavit, Dr. Merrit affirmatively states that based upon his review of the Claimant, “chiropractic treatment beyond 10/6/03 would not be reasonable, related, or necessary.”
11. After careful consideration, this Court finds that Dr. Merrit’s affidavit is legally insufficient. However, this Court grants Defendant’s request for the opportunity to amend its affidavit to correct the insufficiencies.
Conclusions of Law
12. Summary Judgment is appropriate if the pleadings, depositions, admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
13. In McElroy v. Perry, 753 So.2d 121 (Fla. App. 2 Dist. 2000) the Court struck Defendant’s IME report finding that it lacked trustworthiness, explaining, “When a record is made for the purposes of litigation, its trustworthiness is suspect and should be closely scrutinized, and that most of the time, the report of an expert made for the purpose of litigation is not admissible under section 90.803(6),” Id.
14. “Thus a trial court may exclude evidence meeting the literal requirements of the business record exception where the underlying circumstances indicate the lack of trustworthiness that is presumed to exist with most business records,” Id.
15. In Physician’s First Medical, inc. v. Grenada Ins. Co., the court held that the Affidavit of the insurer’s IME physician and the attached peer review were not competent evidence that gave rise to a genuine issue of material fact, 12 Fla. L. Weekly Supp. 776a (11th Cir. Ct., May 9, 2005). The court reasoned that the doctor’s “affidavit fails to state a proper foundation for the admissibility of his report under an exception to the hearsay rule. It only purports to authenticate his report, which is a document created for the sole purpose of litigation, thus is inadmissible as a business document pursuant to 90.803(6),” Id.
16. “In order to create any genuine issue of material fact regarding whether the subject medical expenses were reasonable, related or necessary as a result of the accident, the defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from the licensed physician,” Cicero Ortho-Med Center v. United Automobile Insurance Co., 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade County Court, 2004); Jarrell v. Churm, 611 So.2d 69 (4 DCA 1993).
17. The party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) (citing Jarrell).
It is therefore,
ORDERED AND ADJUDGED as follows:
A. Since the Plaintiff’s expert’s testimony as to the reasonableness and the necessity of the medical treatment, as well as the relation to the automobile accident of April 2, 2003, stands un-controverted, no genuine issue of fact exists as to the dates of service August 13, 2003 through October 6, 2003 and summary judgment for the Plaintiff is appropriate;
B. The Court hereby defers ruling as to the dates of service after October 6, 2003 to allow the Defendant to obtain a legally sufficient affidavit;
C. Defendant’s corrected affidavit shall be filed within ten (10) days from the date of this Order. Upon the filing of the corrected Affidavit this Court will consider the remaining dates of service at issue (October 8, 2003 through October 17, 2003).[Editor’s note: Failure to cure deficiency, Summary judgment GRANTED 17 Fla. L. Weekly Supp. 832a]
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1The Court notes that Dr. Merrit’s affidavit and attached report indicates that the examination took place on September 15, 2003.
