17 Fla. L. Weekly Supp. 81a
Online Reference: FLWSUPP 1702CARR
Insurance — Personal injury protection — Coverage — Reasonable, related and necessary treatment — Summary judgment — Peer review — Error to enter summary judgment in favor of medical provider after refusing to consider opposing affidavit prepared by peer review physician who reviewed examination and treatment records of insured, but did not personally examine insured
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, vs. FRIEDMAN CHIROPRACTIC CENTER, P.A., a/a/o REBECCA CARRION, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-108 AP. L.T. Case No. 07-786 CC 26. December 2, 2009. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, The Office of the General Counsel, United Automobile Insurance Company, for Appellant. Zachary A. Hicks, Samole, Berger & Hicks, P.A., for Appellee.
(Before BARBARA ARECES, JOHN SCHLESINGER, and VALERIE R. MANNO SCHURR, JJ.)
CONFESSION OF ERROR
[County court order published at 15 Fla. L. Weekly Supp. 922b]
(PER CURIAM.) Assignee Provider/Appellee sued Insurer/Appellant for breach of contract for PIP benefits for an accident that occurred on June 2, 2004. In its answer and affirmative defenses, the insurer denied that the treatment rendered was reasonable, related and necessary. The provider moved for summary judgment, contending that all the treatment was indeed reasonable, related and necessary. In support thereof, the provider filed the affidavit of Dr. Friedman, the treating physician.
In opposition to the motion for summary judgment, the insurer filed an affidavit and peer review report from Dr. Morris. Dr Morris stated that he reviewed the treatment records and the initial examination report and it was his opinion that none of the treatment rendered was reasonable, related or necessary.
At a hearing on the assignee provider’s motion for summary judgment, the trial court relied on United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) and denied the motion. The provider moved for reconsideration, citing to United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 Fla. L. Weekly Supp. 22a (Fla. 11th Circ., November 13, 2008); the trial court then refused to consider Dr. Morris’ affidavit, since his peer review was not based on an independent medical examination. The trial court then granted the provider’s motion for summary judgment, finding that all the treated rendered was reasonable, related, and medically necessary. A final judgment for the provider was entered, and the insurer appealed.
In its initial brief on appeal, the insurer argued that the trial court erred in granting the motion for reconsideration. Under United Automobile Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), the Third District held that under §627.736(7)(a), Fla. Stat. (2005), a medical report issued for the withdrawal of PIP benefits that is based on another physician’s examination can be based on the examination of the treating physician as well as an examination performed by a physician who conducted an independent medical examination (“IME”). That decision was recently affirmed by the Third District Court of Appeal, when it reversed the decision relied on by the trial court in the motion for reconsideration in this case and held that a valid report can be a report by 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. See United Auto. Ins. Co. v. Metro Injury & Rehab Center, a/a/o Magda Davis, 16 So. 3d 897 (Fla. 3d DCA 2009).
Appellee provider now has filed a confession of error which concedes that the issues in this matter are controlled by United Auto. Ins. Co. v. Metro Injury & Rehab Center, a/a/o Magda Davis, 16 So. 3d 897 (Fla. 3d DCA 2009), which affirmed the Bermudez decision, and as such, the trial court erred by entering summary judgment for the provider on the basis of United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 Fla. L. Weekly Supp. 22a (Fla. 11th Circ., November 13, 2008) as it was reversed subsequently by the Third District Court of Appeal, and as Bermudez had been good controlling law. The trial court should have considered both affidavits submitted by both Dr. Friedman and Dr. Morris.
Therefore, this matter is remanded to the trial court for proceedings consistent with this opinion.
