17 Fla. L. Weekly Supp. 326a
Online Reference: FLWSUPP 1705CARL
Insurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Opposing affidavits — Error to refuse to consider independent medical examination and peer review on ground that the two doctors’ affidavits contradicted one another where insurer provided arguably credible explanation for the seeming discrepancy between the affidavits — Moreover, peer review report served to supplement the IME with its corresponding evidence, not contradict it — Trial court erred in finding that failure of insurer to provide plaintiff with explanation of benefits provided plaintiff with independent cause of action for breach of contract
UNITED AUTOMOBILE INSURANCE COMPANY, (A Florida Corporation), Appellant, v. C.M. MEDICAL CENTER, INC., A/A/O MYRA CARLE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-519 AP. L.T. Case No. 06-020039 CC 05. January 25, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Bronywn C. Miller, J. Counsel: Lara J. Edelstein, Office of the General Counsel of United Automobile Insurance Company/Trial Division, for Appellant. Todd Landau, Todd Landau, P.A., for Appellee.
(Before, COHEN and CABALLERO, JJ.)
(COHEN, J.) This is an appeal from a summary judgment hearing involving the payment of Personal Injury Protection (PIP) benefits by United Automobile Insurance Company (United/Appellant), for services rendered from June 1, 2005 through September 7, 2005. The lower tribunal granted, in part, and denied in part the Appellee/Plaintiff’s Motion for Summary Judgment. The trial court granted payment of services provided to the Plaintiff from June 1, 2005 through July 11, 2005. In so doing, the trial court refused to consider an Independent Medical Examination (IME), performed by Dr. Musa Ris together with the Peer Review performed by Dr. Goldberg finding that the two affidavits contradicted one another. The doctors’ affidavits were submitted by Appellant to defeat the Motion for Summary Judgment. The Court denied payments for services provided from July 13, 2005 through September 7, 2005 based on Dr. Musa Ris’ IME. The latter issue was submitted to jury determination with a verdict for the Plaintiff. The payments from June 1, 2005 through July 11, 2005 are at issue in this appeal.
As mentioned, the trial court at the summary judgment hearing refused to consider the Peer Review Report/Affidavit submitted by Dr. David Goldberg on September 9, 2005 because, in the court’s opinion, it conflicted with the IME Report/Affidavit submitted by Dr. Musa Ris on August 11, 2005. In his IME report, Dr. Musa Ris found that as of August 11, 2005, the Plaintiff had reached maximum medical improvement and that no further treatment would be “reasonable, medically necessary or related . . . to the motor vehicle accident that occurred on May 31, 2005.” Subsequent to the IME, Dr. Goldberg performed a Peer Review and submitted a report stating that “ ‘the extensive course of treatment rendered to Carle Myra [the Insured] has clearly not been demonstrated. There is nothing to suggest that the patient suffered anything more than a mild strain.’ ” He further opined that the reasonable amount of physical therapy would be nine visits with three modalities per visit at a cost of $20 per visit. Thus, any physical therapy in excess of this was “unreasonable, unnecessary and unrelated.” The trial court believed that this affidavit conflicted with the affidavit of Dr. Musa Ris since Dr. Musa Ris had not disputed the necessity of treatment rendered to the Plaintiff prior to the IME. Additionally, since Dr. Musa Ris had determined that the Plaintiff had reached maximum medical improvement, the trial court interpreted this to be a tacit admission that all treatment prior to the IME was medically reasonable and necessary. Accordingly, the Court refused to accept Dr. Goldberg’s Peer Review as a supplement to Dr. Musa Ris’ IME. In so ruling, the court relied on a county court opinion written by Judge Mark Leban in Professional Medical Group, Inc. v. United Auto Ins. Co., 04-8616AP 25 (March 23, 2005). See also, United Auto Ins. Co. v. Complete Medical Rehab & Family Care Centers, Inc., 16 Fla. L. Weekly Supp. 1036a (Fla. 11th Cir. Ct. Oct. 13, 2009). Accordingly, the trial court ruled that United was liable for all treatment rendered prior to the IME.
This Court has read Judge Leban’s well-written opinion, but respectfully disagrees with his interpretation of the law. This Court agrees that a party met with a Motion for Summary Judgment should not be permitted to defeat the summary judgment with a subsequent affidavit submitted by himself/itself or by another which “baldly” repudiates previous testimony or affidavits of that same party. Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). See also, Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA 1994); Arnold v. Dollar General Corporation, 632 So. 2d 1144 (Fla. 5th DCA 1994); Kopacz v. Jack Eckerd Corporation, 542 So. 2d 469 (Fla. 5th DCA 1989); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982). Nonetheless, where a party offers a credible explanation for the discrepancy, or where the court can not find that the discrepancy, is “blatantly” and “baldly” contradictory, then summary judgment should not be granted. Arnold v. Dollar General Corporation, 632 So. 2d at 1145. When a subsequent affidavit or testimony “at least arguably” supplements a prior affidavit or testimony, a court should refrain from granting summary judgment. Bell v. Bailey, 639 So. 2d at 1064.
We find that United has provided an arguably credible explanation for the seeming discrepancy between Dr. Musa Ris and Dr. Goldberg’s affidavits. At any rate, the doctors’ affidavits can in no way be found to be blatantly and baldly contradictory. United argues that the IME serves to evaluate the insured’s physical condition at a particular point in time, i.e., when the physical examination is conducted by the doctor. In contrast, a Peer Review Report is broader in scope and prepared after all of the medical records for the entire course of the insured’s treatment have been reviewed. Review of the treatment records in this case included those created for treatment rendered prior to the IME. Accordingly, the Peer Review broadens the basic analysis provided by the IME based on data obtained in the course of reviewing all treatment records. United further points out that there is no evidence in the record that Dr. Musa Ris reviewed any of the insured’s treatment records before performing the IME. This being the case, Dr. Musa Ris could offer no opinion with regard to any treatment provided the insured prior to the day that he conducted his physical examination for the IME on August 11, 2005. Accordingly, argues United, the most that Dr. Musa Ris could comment on was whether treatment provided subsequent to the date of the IME would be reasonable, related and necessary. Review of additional data, however, enabled Dr. Goldberg to determine that some of the treatment rendered to the insured prior to the physical examination conducted by Dr. Musa Ris for the IME was not reasonable, related and necessary.
In sum, the Peer Review Report served to supplement the IME with its corresponding evidence, not contradict it. See Bell v. Bailey, 639 So. 2d at 1064. And, Dr. Goldberg made no attempt in his Peer Review Report/Affidavit to repudiate the prior sworn testimony provided by Dr. Musa Ris’ IME Report/Affidavit. Accordingly, we find that the trial court mistakenly failed to consider the Peer Review Report/Affidavit submitted by Appellant United to defend against the summary judgment motion seeking to enforce the payment of PIP benefits. The affidavits of Drs. Musa Ris and Goldberg should have been considered adequate to create a material issue of fact to be submitted to the jury.
In addition, Appellant appeals the trial court’s ruling that failure of United to provide the Plaintiff with an Explanation of Benefits provides Plaintiff with an independent case of action for breach of contract pursuant to §627.436(4)(b), Fla. Stat. 2009. This issue has recently been decided in favor of Appellant. See United Automobile Ins. Co. v. A 1st Choice Healthcare Systems, etc., 21 So. 3d 124 (Fla. 3d DCA 2009).
This case is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.
REMANDED WITH INSTRUCTIONS. (CABALLERO, J. concur.)
