17 Fla. L. Weekly Supp. 1058a
Online Reference: FLWSUPP 1711JULI
Insurance — Personal injury protection — Coverage — Medical expenses — Denial of benefits — Valid medical report — Error not to consider peer review affidavit submitted by insurer’s expert on grounds that expert did not personally examine insured or that affidavit was not obtained prior to denial of claim — No merit to argument that affidavit was properly not considered because documents it referenced were not attached to it where documents were clearly enumerated in affidavit and were already on file in case — If trial court found affidavit to be conclusory, it should have given insurer opportunity to correct that technical deficiency
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. COMPREHENSIVE HEALTH CENTER, LLC, a/a/o Kernst Julien, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-599 AP. L.C. Case No. 08-2289 CC 05. September 3, 2010. An Appeal from the County Court of Miami-Dade County, Florida. Counsel: Lara J. Edelstein, The Office of the General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss and Dean A. Mitchell, for Appellee.
(Before PEDRO P. ECHARTE, JR., SCOTT J. SILVERMAN, and PETER ADRIEN, JJ.)
(ECHARTE, Judge.) Pursuant to an assignment of benefits, Appellee/Provider Comprehensive Health Center, LLC treated the insured, Kernst Julien for injuries he claims to have suffered in an automobile accident on August 12, 2007. The provider submitted bills to Appellant/Insurer United Automobile Insurance Company in the amount of $10,135. When United Auto didn’t pay, the provider filed suit to recover Personal Injury Protection (PIP) benefits for services rendered to Julien. United Auto answered and denied that the subject bills were reasonable, related or necessary (RRN).
The provider moved for summary judgment as to the RRN issue and in support of the motion, filed affidavits form its billing clerk, Dr. Rudolph Moise and Dr. Daryl Schleifer. In opposition to the summary judgment motion, United Auto filed the affidavit of Dr. Bradley Simon, who had performed a peer review of the insured’s medical and treatment records. Dr. Simon’s affidavit stated that, based on his review of specified and enumerated examination and treatment records of the insured, his opinion was that the chiropractic treatment and billing were not reasonable, related or necessary. At the hearing, which was not attended by United Auto’s counsel, the provider argued that the insurer’s peer review affidavit should not be considered because: (1) no records were attached to the peer review report; (2) the peer review was obtained after the claim was denied; and, (3) the affidavit was conclusory. The trial court agreed, did not consider Dr. Simon’s affidavit and entered summary judgment for the provider.
Thereafter, the trial court denied United Auto’s motion for rehearing and/or reconsideration of the order granting summary judgment. Thus, the only issue we address in this appeal is whether the trial court erred in granting summary judgment after excluding the affidavit of Dr. Simon.
We hold that the trial court erred in not considering the peer review affidavit submitted by the insurance company’s expert, Dr. Simon, which demonstrated genuine issues of fact and was sufficient to defeat summary judgment. Unfortunately, when the court excluded the affidavit and ruled in favor of the provider at the summary judgment hearing, the trial court did not have the benefit of the Third District’s opinion in United Automobile Insurance Company v. Metro Injury & Rehab Center, 16 So.3d 897, (Fla. 3d DCA, 2009).
In the Metro Injury and Rehab Center case, the Court reversed a summary judgment because the trial court had not considered the insurer’s expert report because it was not a valid peer review report under sec. 627.736(7)(a), Fla. Stat. (2005) and because it was neither based upon nor supported by an independent medical examination. In clarifying the law, the Court held “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.” Id. at 900. The court “stressed” that an IME is not required in order for a report to be a “valid report.” See United Auto at 900, affirming holding in United Automobile Insurance Company v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008). As such, the trial court erred when it refused to consider Dr. Simon’s affidavit.
Furthermore, the trial court should have considered the affidavit even though it was not obtained prior to the denial of the claim. The record is not clear as to when the claim was denied, however, the PIP statute does not provide any time limits for obtaining or presenting evidence to contest whether charges are reasonable, related, and necessary. In fact, sec. 627.736(4)(b), Fla. Stat. (2005), expressly states that an insurer may “assert that the claim was unrelated, was not medically necessary, or was unreasonable . . . at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph”. See United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213, 1217 (Fla. 3d DCA 2008). Here, United Auto’s expert peer review affidavit was timely served prior to the summary judgment hearing and, as such, should have been considered. As already stated, this affidavit created genuine issues of fact and precluded summary judgment.
The provider’s argument that the peer review affidavit was properly not considered because the documents it referenced were not attached to it, presumably in violation of Fla. R. Civ. P. 1.510, is without merit. The affidavit clearly and specifically enumerates which documents/records were considered in preparation of the affidavit. All of the listed documents/records were already on file in the case and were actually provided to the insurer by the provider during discovery. Furthermore, if the trial court found that Dr. Simon’s affidavit was conclusory, then it should have given the insurer an opportunity to correct this technical deficiency. Charlonne v. Rothenthal, 642 So. 2d 632 (Fla. 3d DCA 1994). We find no merit in United Auto’s other points on appeal.
Accordingly, we reverse the trial court’s entry of summary judgment to the medical provider and remand this cause for further proceedings. Appellee/Provider’s motion for appellate attorney’s fees is Denied. (SILVERMAN and ADRIEN, JJ., concur.)
