17 Fla. L. Weekly Supp. 892b
Online Reference: FLWSUPP 1710VEGA
Insurance — Personal injury protection — Coverage — Medical benefits — Reasonable, related, and necessary treatment — Summary judgment — Opposing affidavit — Error to refuse to consider peer review report on ground that it was not based on independent medical examination
Cert.denied. 35 Fla. L. Weekly D1481b. (Vega v. United Auto. Ins. Co., 3D10-1595, 7-7-2010)
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. JOSE A. VEGA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-453 AP. L.C. Case No. 07-025827SP23. June 2, 2010. (Hearing on January 20, 2010.) On Appeal from the County Court for Miami-Dade County, Jacqueline Schwartz, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company Office of the General Counsel, for Appellant. Virginia M. Best, Law Offices of Lopez & Best, for Appellee.
(Before STEELE DONNER, ROTHENBERG, and GENDEN, JJ.)
(ROTHENBERG, J.) The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Jose Vega (“Insured”). The trial was based on Insured’s Complaint against Insurer for failure to pay any Personal Injury Protection (“PIP”) benefits. In dispute at trial was whether the treatment was reasonable, related, and medically necessary.
Insurer filed the affidavit of David B. Goldberg, MD and the peer review report that he conducted, to support its defense that the treatment rendered in this case was not reasonable, related, and necessary.
Insured filed his “Motion for Final Summary Judgment as to All Defenses, Liability, Reasonableness, Relatedness & Medical Necessity & Entry of Final Judgment for the Plaintiff.” In support of his motion, the Insured argued that the peer review report by Dr. Goldberg was not competent admissible evidence and that it was not based upon the IME of a doctor licensed under the same licensing chapter as the treating physician. Insured also argued that the peer review was never “first obtained” for the purpose of denying, withdrawing, or reducing the benefits as required by the holding in United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998). Further, Insured argued that Insurer failed to obtain a valid medical report pursuant to Section 627.736(7)(a), Florida Statutes and that the peer review provided by Dr. Goldberg should not be considered because it was not based upon an independent medical examination (“IME”).
The trial court granted Summary Judgment in favor of the Insured and ruled that a physical examination must be performed for the peer review report to be valid. The trial court stated, “[a] peer review cannot just take the views of the peer review based on the treatment records or the records of the treating physician. It has to be based on an independent medical review.”
The issue on appeal is whether the trial court erred in granting summary judgment in favor of the Insured where the Insurer’s Peer Review was not considered, because it was not based on an IME. The Peer Review ostensibly created a genuine issue of disputed fact as to reasonableness, relatedness, and medical necessity.
The trial court granted the motion based on an interpretation of statutes and case law. However, recent opinions of the Third District Court of Appeal have clarified the law in this matter.
In United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So. 3d 60, 66-7, (Fla. 3d DCA 2009), the Third District Court stated, in pertinent part:
[a]lthough Bermudez, in dicta, suggests that Viles [United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998)] also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. “The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.” Viles, 726 So. 2d at 321 (emphasis added). . . .
In United Automobile Insurance Co. v. Metropolitan Injury & Rehabilitation Center, 16 So. 3d 897, 900 (Fla. 3d DCA 2009). The Third District Court of Appeal stated in pertinent part:
[i]n construing whether this was a “valid report” under the statute, we found that a “valid report” for the withdrawal of PIP benefits does not have to be based upon a physical examination conducted by the actual physician preparing the report. Instead, we held that, under section 627.736(7)(a), a “valid report” for the withdrawal of PIP benefits “may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.” Bermudez, at 1215 (emphasis added).[FN3] In other words, the physician preparing the report does not have to personally examine the insured. He or she may base the report on another physician’s examination whether an IME or an examination conducted by the treating physician.
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We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, an IME had been performed, Bermudez does not stand for the proposition that an IME is required in order for a report to be a “valid report.”
[FN3] The holding in Bermudez was, in part, based on the legislative history of the statute. See Senate Staff Analysis and Economic Impact Statement, Senate Bill 1092 (Fla. 2001), which supports our determination here.
As such, this matter is reversed and remanded to the trial court for proceedings consistent with this ruling.
