17 Fla. L. Weekly Supp. 694a
Online Reference: FLWSUPP 1708HERR
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Where peer review affidavit submitted by insurer in opposition to motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment refers to documents that are not part of record and are not attached to affidavit, and physician who performed peer review failed to review insured’s complete medical records, medical provider’s evidence on issue stands uncontroverted — Partial summary judgment is entered in favor of provider
STAND UP MRI OF BOCA RATON, P.A., (Jorge Herrera, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 07-001266 (51). May 27, 2010. Martin R. Dishowitz, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Jacqueline Whittingham, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ASTO REASONABLE, RELATED & NECESSARY
THIS CAUSE came before the Court on April 30, 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 October 20, 2004.
2. At the time of the accident, Jorge Herrera, 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, Jorge Herrera, sought diagnostic services from the Plaintiff, Stand Up MRI of Boca Raton, P.A. pursuant to prescription from the patient’s treating physician.
4. On March 22, 2005 Plaintiff performed an MRI of the thoracic spine, and lumbar spine on the patient, Jorge Hererra.
5. On March 24, 2005 Plaintiff performed an MRI of the right knee on the patient, Jorge Herrera.
6. Thereafter, Plaintiff timely submitted its bills to Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”).
7. On or about September 14, 2006, Plaintiff filed its Complaint and on December 11, 2006 Defendant served its Answer and Affirmative Defenses.
8. Pursuant to Derius v. Allstate Indemnity Company, 723 So.2d 721 (Fla. 4 DCA 1998) and Florida Statute 627.736, it is Plaintiff’s burden to prove the medical expenses at issue were reasonable, necessary and related to the alleged automobile accident set forth in the complaint.
9. On or about May 1, 2009 Plaintiff filed its Motion for Summary Judgment with respect to reasonable, related and necessary.
10. The Plaintiff obtained the sworn affidavit from the patient’s treating physician, Dr. Mitchell Pollak, M.D., in which Dr. Pollak testified under oath that the services rendered to Jorge Herrera were reasonable, medically necessary, and related to the automobile accident of October 20, 2004.
11. In support of Plaintiff’s motion for summary judgment and attached to the affidavit of Dr. Mitchell Pollak, M.D. was the initial examination report dated November 11, 2004 of an exam conducted by Dr. Pollak, M.D.; an examination report dated November 22, 2004 of an exam conducted by Dr. Pollak, M.D.; an examination report dated February 24, 2005 of an exam conducted by Dr. Pollak, M.D.; a neurological consultation report dated February 28, 2005 conducted by Dr. Carrie Landess, M.D.; an MRI report of the lumbar spine dated March 22, 2005; and an MRI report of the thoracic spine dated March 22, 2005.
12. In opposition to Plaintiff’s motion for summary judgment, Defendant filed an affidavit of Dr. Sulim A. Krimshtein, M.D. in which Dr. Krimshtein attempts to incorporate a peer review report dated May 25, 2009 attached to the affidavit.
13. In his affidavit, Dr. Krimshtein affirmatively states that “in my professional opinion, the initial molded brace for the lumbar spine, including the MRI’s by STAND UP MRI OF BOCA RATON for the lumbar spine associated under code 72148 with codes 76498 and 76498-59 were not reasonable, related or medically necessary because there was no clinical evidence to support the medical need for such MRIs. Code 72146 for thoracic MRI AND code 73721 were similarly not reasonable, related or medically necessary due to lack of evidence to support.”
14. After careful consideration, this Court found that Dr. Krimshtein’s affidavit was legally insufficient and allowed the Defendant ten (10) days to correct the technical deficiencies1.
15. On or about April 20, 2010 Defendant filed an Amended Affidavit of Dr. Sulim A. Krimshtein, M.D. On or about April 27, 2010 Defendant filed its Revised Notice of Serving and Filing Amended Affidavit of Dr. Sulim A. Krimshtein, M.D. Neither affidavits filed by the Defendant included sworn or certified copies of the documents referred to in Dr. Krimshtein’s affidavit2.
16. Florida Rules of Civil Procedure, rule 1.510(e) requires that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively show that the affiant is competent to testify to the matters stated therein. Rule 1.510 also requires that sworn to or certified copies of all papers or parts thereof referred to in an affidavit, not already filed in the record, “shall” be attached thereto or served therewith.
17. The Court finds that the majority of the documents relied upon in Dr. Krimshtein’s peer review affidavit are not part of the record and therefore pursuant to Rule 1.510 are required to be attached to the affidavit. See Neal v. Bryant, 149 So.2d 529 (Fla. 1962) [T]he word ‘shall’ when used in a statute or ordinance has, according to its normal usage, a mandatory connotation. See also Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla 4 DCA 1970).
18. Furthermore, this Court finds Dr. Krimshtein failed to review Mr. Herrera’s complete medical records. United Automobile Insurance Company v. Weschel Pain & Rehab Centre, Inc., 12 Fla. L. Weekly Supp. 1035a (17 Cir. Ct. 2005)
Conclusions of Law
19. 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).
20. 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.
21. “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.
22. 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.
23. In United v. Wechsel thecourt held that there was no abuse of discretion in excluding a peer review report from consideration on motion for summary judgment where the affidavit failed to indicate that physician who prepared the report examined insured or that treatment records reviewed were complete” 12 Fla. L. Weekly Supp. 1035a (17 Cir. Ct. 2005)
24. “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).
25. 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).
26. Based upon the affidavit of Dr. Mitchell Pollak, M.D. a Board Certified Orthopedist, as well as the attached supporting medical records, the Court finds that the record is replete with evidence supporting Dr. Pollak’s opinion that the diagnostic tests were medically necessary and related to the automobile accident of October 20, 2004.
27. The Court finds that Dr. Krimshtein’s opinions are unsupported by the record evidence therefore Defendant failed to present substantial and competent evidence to countervail Dr. Pollak’s testimony; Defendant failed to present substantial and competent evidence to impeach Dr. Pollak’s testimony; and Defendant failed to present substantial and competent evidence which creates a direct conflict with Dr. Pollak’s testimony.
It is therefore,
ORDERED AND ADJUDGED that Plaintiff’s expert’s testimony as to the necessity of the medical treatment, as well as the relation to the automobile accident of October 20, 2004 stands un-controverted and no genuine issue of fact exists and summary judgment for the Plaintiff is appropriate.
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1The Court notes that Defendant was previously placed on notice of the deficiencies of Defendant’s peer review in Plaintiff’s motion to strike Defendant’s peer review dated August 19, 2009 but made no effort to correct same prior to the summary judgment hearing.
2The only document attached to Dr. Krimshtein’s affidavit was Dr. Krimshtein’s peer review report dated May 25, 2009.
