17 Fla. L. Weekly Supp. 1078b
Online Reference: FLWSUPP 1711OSOR
Insurance — Personal injury protection — Coverage — Medical benefits — Reasonable, related, and medically necessary treatment — Summary judgment — Opposing affidavit — Error to grant summary judgment in favor of provider without considering insurer’s peer review affidavit — Peer review was not invalid because it was based on review of treating physician’s records rather than on independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC., A/A/O EDUARDO ESPINOSA OSORIO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-500 AP. L.T. Case No. 07-22889 CC 25. July 21, 2010. On Appeal from the County Court for Miami-Dade County, Jacqueline Schwartz, Judge. Counsel: Michael J. Neimand, General Counsel of United Automobile Insurance Company, for Appellant. Virginia M. Best, Law Offices of Lopez & Best, for Appellee.
(Before BAGLEY, LANGER, and ESPINOSA DENNIS, JJ.)
(BAGLEY, Judge.) The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Professional Medical Group, Inc. (“Provider”) as assignee of Eduardo Espinosa Osorio (“Insured”). In the underlying action, Provider sued Insurer for failure to pay Personal Injury Protection (“PIP”) benefits. An issue in dispute was whether the treatment was reasonable, related, and medically necessary (“RRN”).
In opposition to the Provider’s motion for summary judgment on the issue of RRN, the Insurer filed the affidavit of David B. Goldberg, MD, to support its defense that some of the treatment rendered in this case was not reasonable, related, and necessary. Dr. Goldberg’s affidavit referred to his peer review report regarding the treating physician’s records.
At the hearing on this motion for summary judgment, the trial court declined to consider Dr. Goldberg’s affidavit and peer review report. As stated in the hearing transcript, the trial court struck “Dr. Goldberg’s peer review based on the fact that there was no relying independent medical examination.” The Provider’s motion for summary judgment on the issue of RRN was therefore granted.
A key issue on appeal is whether the trial court erred in granting summary judgment in favor of the Provider where the Insurer’s peer review was not considered, because it was based on the treating physician’s records rather than on an independent medical examination (“IME”). Recent opinions of the Third District Court of Appeal have clarified the law in this area.
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.
* * *
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 opinion.
Appellee’s Motion for Attorney’s Fees, pursuant to § 627.428(1) is DENIED.
