17 Fla. L. Weekly Supp. 329a
Online Reference: FLWSUPP 1705DUNCInsurance — Personal injury protection — Discovery — Depositions — Expert witnesses — Error to award expert witness fees for deposing treating physician — Coverage — Reasonable, related and necessary treatment — Error to enter summary judgment in favor of insured after refusing to consider peer review affidavit because it was not based on independent medical examination and was obtained after insured filed suit
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. TAMARA DUNCAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-443 AP. L.C. Case No. 07-26262 SP 25. February 11, 2010. An Appeal from the County Court for Miami-Dade County. Counsel: Thomas Hunker, of and for Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, and Carlos A. Lopez-Albear, Lopez & Best, for the Appellee.
[Certiorari denied at 35 Fla. L. Weekly D2496b and 36 Fla. L. Weekly D3b.]
(Before STANFORD BLAKE, PETER R. LOPEZ, and DAVA J. TUNIS, JJ.)
(TUNIS, J.) Appellant United Automobile Insurance Company (“United Auto”) appeals a decision of the trial court which had granted summary judgment for the Appellee, Tamara Duncan, in her PIP action against United Auto. United Auto contends that the trial court erred in three rulings, any of which would constitute sufficient grounds to reverse by this appellate court. We agree.
First, the trial court erred in ordering United Auto to pay an expert witness fee in order to depose Duncan’s treating physician. 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 such 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.
The second error the trial court made was in not considering the peer review affidavit submitted by the insurance company’s expert. The trial court, in ruling for Duncan at the summary judgment hearing, concluded that because the affidavit was not obtained prior to a denial, withdrawal, or reduction of benefits, and because it was not based on an IME, it would not be considered. The trial court stated that it did not think that the Third District Court of Appeal’s decision in United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), mandated a different result. See transcript of hearing from September 8, 2008, page 55. The trial court misinterpreted the applicable law.
In United Automobile Insurance Company v. Metro Injury & Rehab Center, 16 So. 3d 897, 34 Fla. L. Weekly D1516a (Fla. July 29, 2009), the Third District Court of Appeal reversed a grant of summary judgment by the trial court, which had held that an insurer’s expert report was not a valid peer review report under sec. 627.736(7)(a), Fla. Stat. (2005), because it was neither based upon nor factually supported by an independent medical examination. In clarifying the law, the Court held that to constitute a “valid report” under sec. 627.736(7)(a), Fla. Stat. (2005), 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. 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 in its ruling on this matter.
The third error made by the trial court was when it refused to consider United Auto’s peer review report because it was obtained after the plaintiff had already filed suit. This was wrong because the PIP statute does not include a time limit for obtaining 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). As the PIP statute does not contain any special rules or time limitations for obtaining evidence, a PIP case should be treated like any other case under the Florida Rules of Civil Procedure. Fla. R. Civ. P. 1.510(c) governs evidence in summary judgment hearings, and permits the adverse party to submit evidence by mail in opposition at least 5 days prior to the hearing, or delivered no later than 5:00 p.m. two business days prior to the day of the hearing. Here, United Auto’s expert peer review was served by both mail and hand delivery 5 days prior to the summary judgment hearing, and as such, was timely, and should have been considered.
If United Auto’s expert’s peer review had been considered by the trial court, it would have raised a disputed issue of fact as to whether the medical charges were reasonable, related, and necessary, which would have precluded summary judgment for Duncan. This is not a case 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 because 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 (Fla. 4th DCA 2009).
We conclude that the trial court erred in granting summary judgment for Duncan. This matter is reversed and remanded to the trial court for proceedings consistent with this opinion. (BLAKE and LOPEZ, JJ., concur.)
