17 Fla. L. Weekly Supp. 737a

Online Reference: FLWSUPP 1709MORAInsurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in striking affidavit and peer review report offered in opposition to medical provider’s motion for summary judgment on ground that peer review was not obtained within 30 days of receipt of bill and was not supported by physical examination of insured — Discovery — Depositions — Expert witness fees — No error in determining that treating physician was entitled to expert witness fees for his deposition testimony

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC. a/a/o MARIA T. MORALES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-565 AP & 09-020 AP. L.C. Case No. 07-2217 CC 25. May 19, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Lawrence D. King, J. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez and Best. Armando Brana, Armando Brana, P.A., for Appellee.

(Before EIG, SAYFIE and GLICK, JJ.)

(PER CURIAM.) This is an appeal from a final summary judgment in favor of Appellee Professional Medical Group, Inc. (“Professional Medical”). Professional Medical, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. United Auto argues two issues on appeal and maintains the trial court erred with respect to each issue.

On August 11, 2003, Maria T. Morales (“Morales”) was involved in a motor vehicle accident and subsequently thereafter sought treatment with Jose L. Vazquez, M.D. (“Dr. Vazquez”). Morales executed an assignment of benefits, assigning her rights to pursue any PIP claims for Dr. Vazquez’s bills to Professional Medical. United Auto scheduled Morales for an independent medical examination (“I.M.E.”) with physician Luana Carcassoni, M.D. (“Dr. Carcassoni”) on October 1, 2003, which Morales attended. On October 29, 2003, United Auto sent Morales a letter advising that based on Dr. Carcassoni’s I.M.E., that it suspended PIP benefits as to any M.D. treatment as of November 3, 2003. On May 28, 2004, physician Peter H. Millheiser, M.D. (“Dr. Millheiser”), conducted a peer review evaluation of Professional Medical’s bills. Pursuant to its assignment of benefits, and based on nonpayment of the bills, Professional Medical filed suit against United Auto on January 29, 2007.

The first matter on appeal concerns the trial court’s grant of Professional Medical’s motion for summary judgment as to United Auto’s affirmative defense as to the reasonableness, relatedness and necessity (“RRN”) of the treatment rendered by Dr. Vazquez. Professional Medical filed the records custodian affidavit of Carola Cabrera on August 27, 2007, authenticating the reports and bills of Dr. Vazquez and establishing them as business records. Professional Medical also filed an affidavit of Dr. Vazquez, on the same day, regarding Dr. Vazquez’s qualifications and medical expertise, describing the statements and information given to him about Morales’s accident for the purpose of medical diagnosis, describing the examinations Dr. Vazquez conducted on Morales, describing Morales’s treatment and concluding in his expert opinion, that the treatment and bills were RRN as related to the injuries Morales sustained in the accident.

United Auto replied by filing the affidavit of Dr. Millheiser on March 28, 2008. Dr. Millheiser’s affidavit contained his qualifications and medical expertise, referred to the I.M.E. provided by Dr. Carcassoni and referred to his review of the medical records of Dr. Vazquez, pertaining to Morales’s treatment and bills. The trial court conducted a hearing on April 14, 2008 on Professional Medical’s motion for summary judgment as to RRN. Professional Medical argued that Dr. Millheiser’s affidavit relied on a peer review that was not a “valid report” for purposes of § 627.736 (7)(a), Florida Statutes.

Professional Medical argued that to be a valid report, Dr. Millheiser’s peer review had to be based on a physical examination. Secondly, Professional Medical argued that United Auto had to have a valid report within 30 days of receipt of the bill, to deny payment. Lastly, Professional Medical argued that United Auto failed to attach Dr. Vazquez’s bills and failed to attach a copy of the I.M.E. which supported the peer review. United Auto argued based on State Farm Mut. Auto. Ins. Co. v. Rhodes and Anderson, D.C., P.A., 18 So. 3d 1059 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D839a], that section 627.736 (4)(b), does not require a physical examination before denying benefits.

The trial court admitted candidly that it had been reversed by the appellate panel on similar issues in two cases before. One of those cases specifically involved the “physical exam issue.” Nevertheless, acknowledging that it might well face a future reversal, the trial court held that it was going to rely on United Automobile Insurance Co. v. Viles, 726 So. 2d 320, 321 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D14a]. The trial court noted that there was a conflict between Rhodes and Viles and that it would follow Viles. Id. The trial court was “troubled” by decisions that would “allow an adjuster to make a medical decision — in some cases years later — that some of the medical bills, are not reasonable, related and necessary in what [it] believe[s] to be a conflict with the statutory mandate of the Florida legislature.” It granted Professional Medical’s motion for summary judgment as to RRN on April 14, 2008, leading to this first issue on appeal.

The second matter on appeal concerns whether the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of Dr. Vazquez. Professional Medical had filed a motion for protective order. United Auto filed a written objection, contending that a treating physician would not be entitled to an expert witness fee. The trial court heard that matter on November 8, 2007. It ordered that while no expert witness fee would be due for Dr. Vazquez’s preparation for the deposition, that Dr. Vazquez was entitled to an expert witness fee of $350.00 an hour for the length of time it took to take his deposition.

The trial court entered final judgment in favor of Professional Medical on October 28, 2008. The trial court subsequently awarded Professional Medical’s counsel, attorney’s fees, costs and pre-judgment interest on December 30, 2008. This appeal followed.

As to the first issue on appeal, we hold that United Auto had reasonable proof that the treatment was not RRN and thus created a genuine issue of material fact precluding summary judgment. An insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-247 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c].

Additionally, we hold that the affidavit of Dr. Millheiser is competent “to be received by the judge in disposing of a motion for summary judgment to the same extent and subject to the same rules as apply to the oral presentation of such testimony before a jury. Crovella v. Cochrane, 102 So. 2d 307, 310 (Fla. 1st DCA 1958). Crovella addressed the issue of the need to attach documents to the affidavit. Under Crovella, documents are not required to be attached to the affidavit when they are already part of the court’s record and references to them are so explicit there is no question as to their identity. Id. The documents were already made part of the record by Professional Medical and its references to those documents were explicit.

An insurer’s obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applies only to withdrawal of benefits — as opposed to denial or reduction of payment to a treating physician. United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60, 66-67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. The Third District Court of Appeal has held that section 627.736(7)(a) no longer requires a physical examination of the insured to withdraw benefits. United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 899-900 (Fla 3d DCA 2009) [34 Fla. L. Weekly D1516a]; Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a].

Delay and failure to obtain reasonable proof within 30 days does not serve to foreclose the ability of an insurer to contest the RRN of bills as a defense at a later time. See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001) [26 Fla. L. Weekly S747a]. The Fourth District Court of Appeal has similarly held that “[i]naction by the insurer does not result in the insurer having to pay a bill which it otherwise would not have to pay.” AIU Insurance Co. v. Daidone, 760 So. 2d 1110, 1111 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a]; see also United Auto. Ins. Co. v. Perez, 21 So. 3d 886 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a] (holding that United Auto was permitted nearly three years later, to rely on a peer review obtained a year and a half after the original denial, to support its defense at summary judgment that bills for treatment rendered prior to the insured’s IME, were not RRN).

Bills that are not RRN, are never required to be paid. Partners in Health Chiropractic, 21 So. 3d at 864. The trial court shifted the focus away from whether the insurer had proof to contest the bills, to the insurer’s inaction, taking an approach which was rejected by the Florida Supreme Court in Rodriguez and the district courts in Perez and Daidone. We find that the trial court erred in requiring a physical examination was required within 30 days, when striking the affidavit as proof to defend against summary judgment and therefore reverse.

As to the second issue, United Auto’s arguments are not convincing. See Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1171a] (holding that the Third District Court of Appeal has not established a rigid “black letter rule” that treating physicians can never be considered an expert under the “one expert-per-specialty rule”). Professional Medical argues that Dr. Vazquez serves as an expert under Rule 1.390(a). That rule defines an expert as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about a subject upon which called to testify.” Fla. R. Civ. P. Rule 1.390(a) (2009). Having reviewed the affidavit of Dr. Vazquez, we find that Dr. Vazquez clearly fits this definition.

Professional Medical argues that Fla. R. Civ. P. 1.390(c) entitles Dr. Vazquez to an expert witness fee. We agree and find so based on Progressive Express Ins. Co. v. Professional Medical Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003), which held that, pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. Rule 1.390 and not Rule 1.280 or the cases cited by United Auto, controls this fee dispute. The rule provides that an “expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the Court may determine.” Fla. R. Civ. P. Rule 1.390(c) (2009).

United Auto argued that it did not produce the transcript of the hearing on the motion for protective order, because it maintains that our review should be limited to determining whether the trial court committed legal error. It is the responsibility and duty of United Auto to provide this Court with a record sufficient to review the matter it contends is error. Nemeth v. De Lauega, 354 So. 2d 418 (Fla. 3d DCA 1978); South Florida Apartment Ass’n, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977); Gleim v. Gleim, 176 So. 2d 610 (Fla. 3d DCA 1965). United Auto in making its argument that the protective order was incorrectly granted as a matter of law, overlooks previous precedent¹ in which the Third District Court of Appeal has not disturbed a lower court’s ruling that a treating physician is entitled to expert witness fees for attendance at a deposition. United Auto. Ins. Co. v. Eduardo Garrido, DC, PA, 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b] (affirming without discussion, the correctness of a non-final order granting the treating physician an expert witness fee for his deposition).

Since no transcript or stipulated statement has been provided of the hearing and in the absence of both, we must presume the findings of the trial court finding Dr. Vazquez to be an expert and the amount awarded as a fee are correct, because we are unable to evaluate its findings otherwise. Smith v. White, 816 So. 2d 209 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1128c]; All American Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D744c]; Hirsh v. Hirsh, 642 So. 2d 20 (Fla. 5th DCA 1994). As a result, our review is limited to determining whether there are any legal errors which appear on the face of the order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]; Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D711a]; Katowitz v. Katowitz, 684 So. 2d 256, 257 n. 1 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D2558b].

The Fourth District Court of Appeal’s decision in Haldane v. Hall, 234 So. 2d 739 (Fla. 4th DCA 1970), provides us with guidance in this matter. In Haldane, the counsel for the defendants noticed the plaintiff that he “intended to take the deposition” of one of “plaintiffs treating physicians.” Id. at 740. The defendants sought the “doctor’s knowledge gained in treating the plaintiff.” Id. The district court reasoned that “the defendants were clearly aware” that “the doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use of the deposition for evidence at trial.” Id. In the instant case, the trial court in granting the motion, considered Dr. Vazquez’s qualifications, made its findings and determined that he qualified as an expert. See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987).

Having reviewed Rule 1.390, Haldane, and Progressive Express, we find no error in the lower court’s determination that Dr. Vazquez is an expert witness and that the act of deposing him entitles him to a fee. See Eppler v. Tarmac America, Inc., 695 So. 2d 775, 777 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D1559d]. Therefore, we affirm the trial court’s non-final order requiring United Auto to pay an expert witness fee prior to taking Dr. Vazquez’s deposition.

Thus, we REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Millheiser failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Consequently, Professional Medical is not entitled to summary judgment as a matter of law as to RRN.

We AFFIRM the lower court’s grant of the motion for protective order, awarding expert witness fees for Dr. Vazquez’s deposition.

We REVERSE the lower court’s order awarding Professional Medical attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].

Where a case is affirmed in part and reversed in part, the appellant may be entitled to a portion of the appellate attorneys’ fees. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). Since Professional Medical is not the prevailing party in this appeal with respect to summary judgment of RRN of Dr. Vazquez’s bills, Professional Medical cannot be awarded appellate attorney’s fees with respect to that issue. See § 627.428(1), Fla. Stat. (2009). However, Professional Medical has prevailed on the propriety of the trial court’s grant of expert witness fees to Dr. Vazquez for his deposition.

We direct the trial court to enter an order conditionally granting appellate attorney’s fees with respect to the second issue on appeal² only, contingent on Professional Medical being the prevailing party at the conclusion of the case. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 475 n.3 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2252c]; Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994).

FOR THESE REASONS, we direct the lower court to vacate the order granting final judgment in favor of Appellee and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part. (SAYFIE and GLICK, JJ. concur.) (EIG, J. concurs in result only, but does not join in the majority opinion.)

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¹See United Auto. Ins. Co. v. Cereceda & Assocs., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. Aug 27, 2008), pet. denied, 999 So. 2d 657 (Fla. 3d DCA 2008).

²As previously discussed, we affirmed the lower court’s grant of the motion for protective order.