17 Fla. L. Weekly Supp. 984b
Online Reference: FLWSUPP 1710MART
Insurance — Personal injury protection — Coverage — Medical expenses — Denial of benefits — Valid medical report — Trial court erred in failing to consider peer review report/affidavit because it was acquired after PIP lawsuit had been filed by provider where case involved denial of benefits rather than withdrawal of benefits — Fact that insurer chose to pay only one bill and then, after further investigation, decided to reject payment of others as unreasonable, unrelated, and not medically necessary, does not require that case be classified as one involving withdrawal — Error to find that peer review report/affidavit was not valid because it was based on review of treating physician’s examination, diagnosis, and treatment records rather than on independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC., a/a/o DONATILO MARTINEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-058 AP. L.C. Case No. 07-2815 CC 25. July 6, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Nuria Saenz, J. Counsel: Michael J. Neimand, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Virginia M. Best, of Lopez and Best, for Appellee.
(Before ARECES, SCHLESINGER, AND THOMAS, JJ.)
(THOMAS, Judge.) This is a PIP claim brought against the Appellant/Defendant United Automobile Insurance Company (United Auto) for the payment of medical bills to the provider Plaintiff/Appellee Professional Medical Group, Inc. (Professional Medical), on behalf of the insured Donatilo Martinez. The lower court entered summary judgment in favor of the Plaintiff/Appellee Professional Medical below and the insurer, Appellant/Defendant United Auto has appealed.
Accident and Assignation of Benefits
The insured, Donatilo Martinez, was injured in a motor vehicle accident that occurred on February 12, 2004. He sought treatment at the Professional Medical Group, Inc. facility where, after assigning his benefits, he was personally treated by Roberto Rodriguez, M.D. Mr. Martinez was under the care of Dr. Rodriguez from February 26, 2004 through May 20, 2004.
Filing of Complaint, Summary Judgment Motion & Affidavit
After providing notice of its intention to file suit if payment for treatment was not forwarded, and/or Appellant United Auto’s failure to pay, Appellee Professional Medical filed suit of February 6, 2007. On March 5, 2007, Appellant United Auto filed its answer and affirmative defenses. On December 17, 2008, Appellee Professional Medical filed a motion for summary judgment alleging that all treatment provided Mr. Martinez was reasonable, related and necessary (RRN) to treat the injuries sustained from the motor vehicle accident. The motion was supported by the affidavit of Dr. Rodriguez the treating physician, and the deposition testimony of Mercedes Serrano, United Auto’s litigation adjuster.
In response, Appellant United Auto filed the affidavit and peer review report of Dr. Goldberg on January 9, 2009, five days prior to the pre-set summary judgment hearing date. The peer review report was obtained on August 1, 2008. In the report, Dr. Goldberg contended that after a review of both the examination and treatment records of the insured, “it was his opinion that some of the treatment was not reasonable, related or necessary.”
Summary Judgment Hearing
The Plaintiff/Appellee’s summary judgment motion hearing was convened on January 12, 2009. At the hearing, the trial court granted Professional Medical’s motion for summary judgment. The lower court reasoned that an independent medical examination and/or a peer review report must be obtained by the insurer prior to denying benefits. In this particular case, the peer review should have been obtained prior to, or at the latest, when the plaintiff filed the complaint, because there was a denial. In addition, the trial court took the position that a denial existed because either a specific written denial had been issued by the insurer or one occurred by operation of law, since the plaintiff had submitted a demand letter. The lower tribunal further surmised that either there was no response to the demand letter, or a response was sent denying payment, which lead to the filing of the lawsuit. The trial court finally concluded that based on its previous finding, the peer review submitted in this instance was not a valid report under (7)(a)1 for two reasons. First it was obtained after the lawsuit was initiated, and consequently, after the denial occurred. Second, it was not supported by an independent medical examination.
The standard of review for a lower court’s order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). An appellate court must conduct an independent review of the record evidence and determine whether there is a genuine issue of fact and whether the trial court applied the correct rule of law. See e.g., Aberdeen at Ormond Beach, L.P., 760 So. 2d at 131. If the trial court’s ruling was based on an application of the law, it is also reviewed under a de novo standard. See e.g., CAM v. State, 819 So. 2d 802, 804 (Fla. 4th DCA 2001); San Miguel v. City of Miami, 760 So. 2d 979, 979 (Fla. 3d DCA 2000). Appellant United Auto contends that the lower trial court erred in granting summary judgment in favor of the Appellee Professional Medical on the issue of reasonable, related and medical necessity, when it failed to consider Dr. Goldberg’s peer review report/affidavit. This Appellate Court has determined that the lower tribunal failed to apply the correct rule of law, and thus, it must reverse the decision granting summary judgment in favor of Appellee Context Medical.
Failure to Consider Peer Review Report/Affidavit
The trial court reasoned that the filing of the lawsuit converted the insurer’s inactivity regarding the pre IME treatment into a denial of the claim. Accordingly, the insurer acquired Dr. Goldberg’s peer review report/affidavit it was not valid because it had not been acquired prior to the insurer denying PIP benefits. If Dr. Goldberg’s peer review report/affidavit was obtained after the lawsuit was filed, the lower court concluded that it could not be considered for use in opposition against Appellee Professional Medical’s motion for summary judgment.
This Appellate Court notes that section 627.736(4)(b) of the Florida Statutes expressly states that “an insurer may assert that the claim was unrelated, was not medically necessary, or was unreasonable . . . at any time, . . . . after the 30 day time period for payment set forth in this paragraph.” § 627.736(4)(b), Fla. Stat. (2006). In addition, the Florida Supreme Court stated United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001) that once a claim becomes overdue, nothing in the PIP statute forever bars the insurer from contesting the reasonableness, relatedness and the medical necessity of the claim. The Supreme Court further stated that the insurer may use a medical report, as well as any other reasonable proof, obtained subsequent to the thirty (30) day payment window to contest a PIP claim. Id.
The Third District Court of Appeal has stated that “where, as here, an insurer fails to pay any or some of an insured’s medical bills, section 627.736(4)(b) of the Florida Statues applies.” United Automobile Ins. Co. v. Liliu Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009). In Perez, the Third further stated that section 627.736(4)(b) “requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; that such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise; and that such proof may be provided at any time.” Id.; United Automobile Ins. Co. v. Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d 60, 64 (Fla. 3d DCA 2009) (“Contrary to the circuit court’s finding, subsection (4)(b) does not preclude an insurer from challenging the submitted claim after the thirty-day time period, or limit the ability of the insurer to obtain and submit proof, after the thirty-day period, that the treatment was not reasonable, necessary, or related.” (emphasis included in original)); Partners in Health Chiropractic a/a/o Neocles Lebrun v. United Automobile Ins. Co., 21 So. 3d 858, 862 (Fla. 3d DCA 2009) (quoting United Automobile Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc. a/a/o Sandra Perez, 12 So. 3d 242, 246 (Fla. 3d DCA 2009) “an insurer may challenge treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted.”).
As stated in the pertinent part of section 627.736(4)(b) “. . . [T]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.” Thus, the trial court erred when it failed to consider Dr. Goldberg’s peer review report/affidavit because it was acquired after the PIP law suit had been filed by Appellee Professional Medical. Partners in Health Chiropractic a/a/o Neocles Lebrun, 21 So. 3d at 862; Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d at 64.
Denial v Withdrawal Case
Because Appellant United Auto paid a bill for an MRI performed on the insured, Appellee Professional Medical argues that this case should be categorized as a section 637.736(7)(a) withdrawal case requiring a valid medical report to withdraw benefits, and not a section 627.736(4)(b) denial case. However, the Third District Court of Appeal stated in Partners in Health Chiropractic Partners in Health Chiropractic a/a/o Neocles Lebrun, 21 So. 3d at 862 that “where some but not all . . . bills from a particular provider or treating physician are being rejected . . . as unreasonable, unrelated, or unnecessary, section 627.736(4)(b) still applies.” Appellant United Auto chose to pay one bill, then after its investigation, chose not to pay any others. Even so, this Court will not classify this matter as a withdrawal case simply because the insurer chose to pay only one bill, and then after further investigation, decided to reject the payment of others as unreasonable, unrelated and not medical necessary. Given the language in Partners in Health Chiropractic a/a/o Neocles Lebrun, this Appellate Court finds that this is a denial case that requires the application of section 627.736(4)(b). 21 So. 3d at 862.
Validity of Peer Review Report/Affidavit
The trial court also granted summary judgment based on the fact that Dr. Goldberg’s peer review report/affidavit was presumably not a valid report under § 627.736(7)(a) which would support denial of a PIP claim, because it was not based on an independent medical examination. This Appellate Court finds that the lower tribunal erred in reaching this conclusion as well. Section 627.736(7)(a) defines a valid report as “one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and such report is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.”
Dr. Goldberg reviewed the insured’s treating physician’s examination, diagnosis and treatment records. In forming his opinion, based on his medical training and experience, Dr. Goldberg concluded that certain treatment provided was not reasonable, related and medically necessary. He included his findings in his peer review report/affidavit which Appellant United Auto submitted to defend against the Appellee Professional Medical’s summary judgment. Given this, the trial court should have reviewed Dr. Goldberg’s peer review report/affidavit, in defense against the summary judgment as it satisfies the definition of “valid report” as defined by section 627.736(7)(a).
Furthermore, in United Automobile Ins. Co. v. Metro Injury Rehab Center a/a/o Magda Davis, the Third District Court stated:
We follow our prior holding in Bermudez2, and hold that, in order to constitute a “valid report” under section 627.736(7)(a), the physician who issues the report must be a physician who examines the insured or, excluding the treating physician, a physician who reviews the examination and treatment records of the insured. The reporting physician does not have to have personally conducted a physical examination of the insured. 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.” (emphasis added).
16 So. 3d 897, 900 (Fla. 3d DCA 2009). This being the case, the trial court also erred when it refused to consider the peer review report/affidavit of Dr. Goldberg a valid report that could be used to defend against summary judgment, because it was not based on an independent medical exam (IME).
Moreover, case law has established that a valid report under section 627.736(7)(a) is not required when an insurer seeks to deny treatment previously rendered as opposed to withdrawing future treatment. Partners in Health Chiropractic a/a/o Neocles Lebrun, 21 So. 3d at 862; Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d at 65. Section 627.736(4)(b) requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; while a section 627.736(7)(a) may be utilized for this purpose, such a report is not required for this purpose. Partners in Health Chiropractic a/a/o Neocles Lebrun, 21 So. 3d at 862; Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d at 65.
In conclusion, this Appellate Court has found that the lower court erred when it failed to consider the peer review report/affidavit of Dr. Goldberg when it was submitted by the Appellant United Auto to defend against summary judgment, because it was obtained after the PIP action was initiated by Appellee Professional Medical. The Florida Statues and case law have established that an insurer may assert that a claim for PIP benefits was unreasonable, unrelated, and/or medically unnecessary, any time before or after the 30 day time period for payment established in section 627.736(4)(b) has lapsed. Rodriguez, 808 So. 2d at 87; Perez, 21 So. 3d at 887; Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d at 64.
This Appellate Court has also found that the lower trial court erred when it failed to consider Dr. Goldberg’s report/affidavit because it was supposedly invalid as it was not based on an independent medical examination. To constitute a valid report under section 627.736(7)(a), the physician who issues the report need not have personally conducted a physical examination on the insured. Metro Injury Rehab Center a/a/o Magda Davis, 16 So. 3d at 900. All the reporting physician need do is review the examination and treatment records of the insured before writing the report. Id. Thus an IME is not required to serve as underlying support to make a peer review report/affidavit valid. Id. Before the trial court labeled the peer review report/affidavit invalid, it should have accepted and reviewed it to determine whether it could serve as reasonable proof to defend against summary judgment.
Therefore, this matter is REVERSED and REMANDED to the trial court with the direction that it consider the peer review report/affidavit of Dr. Goldberg as submitted by the Appellant United Auto, and conduct any other proceedings needed to be consistent with this opinion.
In addition, Appellee Professional Medical Group’s Motion for Attorney’s Fees pursuant to section 627.428 and section 627.736 of the Florida Statues are DENIED, because it was not the prevailing party in this appeal. (ARECES AND SCHLESINGER, JJ. concur.)
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1§ 627.736(7)(a), Fla. Stat. (2006).
2United Automobile Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008).
