17 Fla. L. Weekly Supp. 1082a
Online Reference: FLWSUPP 1711VELAInsurance — Personal injury protection — Discovery — Depositions — Trial court erred in requiring insurer to pay expert witness fee to take deposition of treating physician — Summary judgment — Opposing affidavit — No error in finding that peer review affidavit and report was deficient where documents referenced in the report were not attached to the report — No error in granting summary judgment in favor of provider on issue of reasonableness, relatedness, and necessity of medical treatment
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. PROFESSIONAL MEDICAL GROUP, a/a/o Sandra Velazquez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-363 AP and 08-445 AP (Consolidated). L.C. Case No. 07-8114 CC 25 (1). July 13, 2010. An Appeal from the County Court for Miami-Dade County. Counsel: Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before JENNIFER D. BAILEY, MAYNARD A. GROSS, AND SANDY KARLAN, JJ.)
(KARLAN, Judge.) Sandra Velazquez was involved in a motor vehicle accident on December 13, 2004, in which she sustained injuries. She was covered under an insurance policy from Appellant/Insurer, United Automobile Insurance Company (“United Auto or insurer”). She sought treatment from the Appellee/Provider, Professional Medical Group (“the provider”), from January 13, 2005 through March 24, 2005. United Auto received an initiation of treatment letter in January, and subsequently had Velazquez attend an IME and then a peer review. About four months after the peer review, United Auto sent Velazquez an IME cut-off letter that sought to deny payment of her bills incurred after the date of the IME. In September, United Auto sent the insured a letter stating that it was denying payment for virtually all the bills, relying on the peer review as the reason for the denial. The provider then filed the underlying case to recover Personal Injury Protection (“PIP”) benefits for services rendered to the insured. In its answer and affirmative defenses, the insurer denied that the bills were reasonable, related or necessary (“RRN”). Further, United Auto argued that the treatment given after March 17, 2005, would not be reasonable, related or necessary based on the opinion of Dr. Peter Millheiser, who performed an IME on that date. The insurer also contended that the medical expenses incurred after January 13, 2005 were not RRN based on Dr. Millheiser’s peer review of the medical records on May 13, 2005.
United Auto filed Dr. Millheiser’s affidavit concerning the IME he performed on the insured on March 17. That report stated that in his professional opinion, no further treatment or diagnostic testing would be RRN in relation to the December 13, 2004 accident. The provider moved for summary judgment as to RRN, and attached supporting affidavits and case law. The trial court held a hearing on March 25, 2008, and entered an order granting the provider’s motion for summary judgment as to the RRN issue. The trial court found that Dr. Millheiser’s IME report conflicted with his peer review (or records review report). The trial court cited Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954) for the proposition that a party may not repudiate his previous testimony to create a jury issue, especially when there is no attempt to explain the discrepancy. The court further found that the records review report did not attach the medical records referenced therein, in violation of Fla. R. Civ. P. 1.510(e). Also the trial court based the IME cut off date as the date the insurer provided notice to the insured that further medical benefits would to be given, June 8, 2005. The court concluded that sec. 627.736(4)(b), Fla. Stat. (2004), requires that the insurer provide notice to the insured of a change in medical benefits. For all these reasons, the trial court refused to consider Dr. Millheiser’s affidavit, and granted the provider’s motion for summary judgment as to RRN. The trial court entered the provider’s motion for final judgment, and subsequently awarded it attorney’s fees and costs. This appeal followed.
The issue before this Panel is whether or not to affirm the trial court’s award of final summary judgment to the provider. If so, then should the Panel also affirm the subsequent award of attorney’s fees and costs? We answer both questions affirmatively.
There is no transcript of the lower court proceedings. A trial court’s rulings come before the reviewing court with a presumption of correctness. Smith v. Orhama, Inc., 907 So. 2d 594, 595 (Fla. 3d DCA 2005). The burden to present the record that will overcome the presumption of correctness of the trial court’s findings lies with the appellant. Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla. 3d DCA 1987). Failure to submit a transcript of the proceedings below precludes the reviewing court from performing a meaningful review. Smith, 907 So. 2d at 596.
According to the mandate of Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), “[i]n appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error . . . .Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.” Here, despite the lack of a transcript, the trial court did enter a detailed and thorough seven-page written order, granting the provider’s motion for summary judgment as to RRN. This Court will consider that order through a presumption of correctness according to the above-referenced law.
This Panel also disagrees with the argument United Auto makes concerning the issue of the medical records not being attached to the peer review, and that it was not detrimental to the validity of the peer review. The trial court found that the records (peer) review did not comply with Fla. R. Civ. P. 1.510(e) because the referenced documents were not attached to the report. We agree that the records should have been physically attached to the peer review, so that it was perfectly clear which records, such as therapy notes, Dr. Millheiser reviewed and considered when preparing his peer review. As such, Dr. Millheiser’s affidavit and report were deficient for his failure to attach the documents.
However, there is one issue on which this Panel agrees with United Auto’s argument. We agree that the trial court erred when it required the insurer to pay an expert witness fee to take the deposition of the treating physician, Dr. Jose Luis Vazquez. Florida Rules of Civil Procedure 1.280(4) and 1.390(c) authorize expert witness fees for those witnesses who acquire or develop knowledge “in anticipation of litigation or for trial”. But, treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. As such, they are treated as ordinary fact witnesses and are not entitled to charge expert witness fees. See Engle v. Rigot, 434 So. 2d 954, 957 (Fla. 3d DCA 1983) (holding that a dentist’s subpoenas were erroneously quashed for not being accompanied by expert witness fees); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998) (injured motorist’s treating physicians should not have been classified as expert witnesses in her negligence action, but as ordinary fact witnesses); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (a treating doctor, while unquestionably an expert, does not acquire her knowledge for the purpose of litigation but rather simply in the course of attempting to make her patient well); and, Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) (treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well. Under the circumstances, the witness is typically testifying as the treating physician concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another). The trial court should not have awarded expert witness fees for deposing the treating physician.
Therefore, we rely upon the trial court’s well-reasoned summary judgment order and affirm the decision of the trial court to grant summary judgment to the provider on the issue of RRN and on the issue of not considering the peer review affidavit of Dr. Millheiser as said affidavit was legally insufficient. As such, the fee judgment must be affirmed as well as the benefits judgment. A provider’s entitlement to fees and costs is premised on sec. 627.428(1), Fla. Stat.(1982), which requires the entry of a judgment in favor of the insured or the insured’s provider. We reverse, however, on the issue of the correctness of the trial court awarding expert witness fees to the treating doctor for his deposition.
AFFIRMED IN PART, REVERSED IN PART. (BAILEY AND GROSS, JJ., CONCUR.)
