17 Fla. L. Weekly Supp. 414a
Online Reference: FLWSUPP 1706CASTInsurance — Personal injury protection — Reduction of benefits — Valid medical report — Error to exclude peer review report filed in opposition to summary judgment because it was not predicated on independent medical examination where report was supported by physician’s review of insured’s medical records — Valid medical report is not condition precedent to denial or partial reduction of PIP claim, as opposed to withdrawal of benefits — Discovery — Depositions — Expert witness fee — Error to find that treating physician is expert witness entitled to expert witness fee for deposition testimony
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. PINES TOTAL HEALTH CENTER, INC., a/a/o AUXILIADORA CASTILLO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-119 AP & 09-225 AP (CONSOLIDATED). L.C. Case No. 08-6047 CC 25. March 9, 2010. An Appeal from the County Court for Miami-Dade County, Nuria Saenz, J. Counsel: Michael J. Neimand, Office of the General Counsel, for Appellant. Kevin W. Whitehead, Downs, Brill, Whitehead, for Appellee.
(Before HUBBART, FREEMAN and LEBAN, JJ.)
(LEBAN, J.) This is an appeal from a final judgment rendered February 12, 2009, by the County Court for Miami-Dade County, Florida. The trial court rendered judgment after Appellee Pines Total Health Center moved for summary judgment as to the issue of the reasonableness, relatedness. and medical necessity (RRN) of the medical bills under section 627.736(4)(b), Florida Statutes (2005). The standard of review for the granting of a summary judgment is de novo. Collections, U.S.A., Inc. v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002).
As to the first issue on appeal, United Auto contends the trial court erred on summary judgment by excluding the medical report of Dr. Jeffrey Frachtman because it was not predicated on an independent medical examination (IME) as required by section 627.736(7)(a).1
The trial court relied upon United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998)2 and United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008),3 in excluding the medical report of Dr. Frachtman as being invalid because it was not factually supported by an IME under section 627.736(7)(a). We find that the trial court erred based on the misconceived legal principle that a medical report must be based on an IME to be valid under section 627.736(7)(a).
Bermudez does not stand for the proposition that an IME is required in order for the report to be a valid report. United Auto. Ins. Co. v. Metro Injury & Rehab. Ctr., 16 So. 3d 897, 900 (Fla. 3d DCA 2009). A valid report under section 627.736(7)(a) can be issued by a physician who examines the insured or a physician who reviews the examination and treatment records of the insured. Id.4 Based on Metro Injury, we find that the trial court erred by excluding Dr. Frachtman’s medical report as it was supported by his review of the insured’s treatment records.
United Auto also contends it was not required to obtain a valid medical report under section 627.736(7)(a) before reducing the amount of the medical bills submitted. United Auto. Ins. Co. v. Santa Fe Med. Center, 21 So. 3d 60 (Fla. 3d DCA 2009). Pines Total Health counters that the trial court correctly relied upon Bermudez (and its citation to Viles)in requiring the Appellant to obtain a valid report as a condition precedent to denying, reducing or withdrawing PIP benefits on the grounds of RRN. We disagree and follow Santa Fe.
The Third District Court of Appeal in Santa Fe receded from that portion in Bermudez which suggested that the Viles requirement of a valid report also applies to both withdrawal and denial of PIP benefits. Id. at 67. A valid report is not required under section 627.736(7)(a) when an insurer seeks to deny payment or a reduction of a PIP claim5 as opposed to when withdrawing the payment of further benefits without the insured’s consent. United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60, 67 (Fla. 3d DCA 2009).6 This is because section 627.736(4)(b) does not require an insurer to obtain a valid medical report from a physician before denying payment of a claim. Id. at 65.7
As explained in Partners in Health Chiro. v. United Auto. Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) (following Santa Fe), neither Viles nor Bermudez require a valid medical report as a condition precedent to a denial or partial reduction of medical bills or claims. Id. at 863. Viles only applies to a withdrawal of payments or a termination of authorization for treatment. Id. at 862.
Based on Santa Fe, we find the trial court erred in excluding the medical report of Dr. Frachtman in opposition to summary judgment as it would have raised a material issue of fact as to whether the medical bills were RRN. As delineated in Partners, where some, but not all, medical bills or claims from a provider or treating physician are being reduced as not RRN, section 627.736(4)(b) applies.8 Since the medical report was obtained under section 627.736(4)(b), there was no need to look at section 627.736(7)(a) and determine whether it complied with the same.
As well, this is not a situation where the trial court arrived at the right result for the wrong reason. It is a case where the trial court failed to reach the correct result and viable evidence was excluded. As such, the trial court’s decision is not defensible under the tipsy coachman rule. Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009).
As to the second issue on appeal, Pines Total Health moved for a protective order as to the deposition of the treating physician, Dr. John J. Maddux, D.C. requesting the payment of an expert witness’ fee. The trial court granted Pines Total Health’s motion and required the Appellant to pay an expert witness fee of $350/hour to depose Dr. Maddux. We find that the trial court erred by requiring the Appellant to pay an expert witness fee to depose Dr. Maddux.
Pines Total Health argues that Dr. Maddux is unquestionably an expert under Florida Rule of Civil Procedure 1.390(a) and entitled to a fee for his deposition. However, United Auto correctly argues that the trial court erred because Dr. Maddux was an ordinary fact witness. His deposition was for the purpose of discovering his course of treatment of the insured and not to opine about the medical performance of any other physician.
Florida Rules of Civil Procedure 1.280 and 1.390 authorize expert witness fees for those witnesses who acquire or develop knowledge “in anticipation of litigation or for trial.” However, Rule 1.280 is inapplicable to expert witnesses who gain their knowledge through the care and treatment of patients. Ordinarily, the treating physician (as witness) testifies about his or her own medical performance and is not opining about the medical performance of another physician. United Auto. Ins. Co. v. Dade Injury Rehab Ctr. Inc., a/a/o Denis Diaz-Matamoro, 17 Fla. L. Weekly Supp. 82a (Fla. 11th Jud. Cir. Ct. Dec. 23, 2009). In such instances, these experts are ordinary fact witnesses and are not entitled to expert fees for their depositions. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981).9
Pines Total Health cites a plethora of cases we deem distinguishable. Therein, the depositions of the treating physicians were developed as possible evidence at trial by the insurer entitling them to expert fees. See Progressive Express Ins. Co. v. Prof’l Med. Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Jud. Cir. Ct. Oct. 14, 2003); United Auto. Ins. Co. v. Cereceda & Assoc., D.C., P.A. a/a/o Onica Blaize, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Jud. Cir. Ct. 2008) and United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A. a/a/o Aurea T. Abreu, 17 Fla. L. Weekly Supp. 10a (Fla. 11th Jud. Cir. Ct. Nov. 10, 2009).
Based on Fittipaldi, Dr. Maddux, regardless of his training, is an ordinary fact witness and, therefore, is not entitled to an expert witness fee. Therefore, the trial court erred in entering final judgment finding that Dr. Maddux was an expert witness and entitled to an expert witness fee for his deposition. Further, because the final judgment entered below must be reversed and remanded, the final judgment of attorney’s fees and costs entered below is also reversed and remanded. Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1th DCA 1999). Pines Total Health’s motion for appellate attorney’s fees pursuant to section 627.428(1), Florida Statutes (2005), is hereby denied. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000).
REVERSED AND REMANDED. (HUBBART and FREEMAN, JJ. concur.)
__________________
1Appellant correctly avers that Appellee’s argument that Dr. Frachtman’s affidavit was legally insufficient was not argued below and is improper on appellate review. Gisela Inv., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984).
2In Viles, the Third District Court of Appeal held under section 627.736(7)(a), that a PIP insurer is required to obtain a physician’s report as a condition precedent to withdrawing or denying further medical payments. Viles, 726 So. 2d at 320.
3The Third District Court of Appeal in Bermudez, 980 So. 2d at 1215, held under section 627.736(7)(a), that a valid medical report may be based upon the physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.
4A valid report is defined as one that is prepared and signed by a physician examining the injured person or reviewing the treatment records of the injured person. Partners in Health Chiro. v. United Auto. Ins. Co., 21 So. 3d 858, 863 (Fla. 3d DCA 2009).
5The Santa Fe court cited to State Farm Mutual Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 18 So. 3d 1059 (Fla. 2d DCA 2008) which held that the valid medical report requirement of section 627.736(7)(a) was inapplicable as the insurer’s refusal to pay for certain tests was a denial and not a withdrawal of payment. Id. at 66.
6When an insurer denies payment, the “first obtained” language of section 627.736(7)(a) is not controlling. United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 21 So. 3d 112, 114 (Fla. 3d DCA 2009).
7A denial case is governed by section 627.736(4)(b) which pertains to circumstances where the insured has either reduced, omitted, or declines payment of the PIP claims that are reasonable, necessary, and related. State Farm Mut. Auto. Ins. Co. v. Hyma Med. Ctr. Inc., 22 So. 3d 699, 700 (Fla. 3d DCA 2009). On the other hand, a withdrawal case is governed by section 627.736(7)(a) where the insurer has made payments but then seeks to withdraw all future payments for the same injury. Id.
8The complaint alleged that Appellant was claiming a total of $11,310.00 in reasonable medical bills; that all or some of the medical bills were unpaid; and that Appellee refused to pay them.
9A treating physician who obtains his information in the course of making his patient well is a fact witness and is not entitled to charge an expert witness fee for his or her deposition. United Auto. Ins. Co. v. Fla. Inst. for Pain a/a/o Margarita Ibarra, 17 Fla. L. Weekly Supp. 163d (Fla. 11th Jud. Cir. Ct. Dec 9, 2009); United Auto. Ins. Co. v. Comp. Health Ctr., Inc., 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Jud. Cir. Ct. Oct. 21, 2009).
