17 Fla. L. Weekly Supp. 329b
Online Reference: FLWSUPP 1705GON2
Insurance — Personal injury protection — Coverage — Reasonable, related and necessary treatment — Summary judgment — Peer review — Error to enter summary judgment in favor of insured after striking peer review report because it was not supported by physical examination conducted by physician signing peer review
Cert. Denied 35 Fla. L. Weekly D740b
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ABEL GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-477 AP. L.C. Case No. 2005011193 CC 05. February 11, 2010. On appeal from Final Summary Judgment by the County Court of the Eleventh Judicial Circuit of Miami-Dade County. Counsel: Michael J. Neimand, United Automobile Insurance Company, for Appellant. Carlos A. Lopez, for Appellee.
(Before Ivan F. Fernandez, Peter Adrien and William Thomas, JJ.)
(Per Curiam) Mr. Abel Gonzalez was involved in an automobile accident on March 1, 2004. He sought treatment from medical providers including Westchester Rehabilitation Center and Orthopedics and Osteoporosis Care, which sought payment from Mr. Gonzalez’s PIP insurer, United Automobile Insurance Company. United Auto failed to pay and this lawsuit ensued.
On April 15, 2004, Mr. Gonzalez attended an Independent Medical Examination performed by Dr. Peter J. Millheiser. Dr. Millheiser diagnosed cervical and thoracic sprains that were causally related to the accident, but determined that no further therapy was necessary. Subsequent to the IME, Dr. Millheiser performed a peer review on September 17, 2004, in which he concluded that many of the procedures performed, for which bills were submitted to the insurer, were not reasonable, related or necessary.
On December 13, 2005, the trial court considered and granted Mr. Gonzalez’s motion to strike the peer review. Although the trial court did not indicate its basis for striking the peer review in its order, the motion to strike the peer review raised several grounds urging that the peer review be stricken, the most significant being that the peer review report was not factually supported by a physical examination of the physician signing the peer review. It was error to strike the peer review report for this reason. See United Automobile Insurance Company v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) and Partners in Health Chiropractic v. United Automobile Insurance Company, 21 So.3d 858 (Fla. 3d DCA 2009).
On September 9, 2008, the trial court granted Mr. Gonzalez’s motion for summary judgment. The sole issue before the court was the reasonableness, relatedness and necessity of the treatment rendered to Mr. Gonzalez; however, having previously stricken Dr. Millheiser’s peer review report, there was no record evidence to support United Auto’s claim that the treatment provided was not reasonable, related or necessary.
Because the peer review report should not have been stricken, the Final Summary Judgment is reversed and remanded to the trial court for further proceedings. (Ivan F. Fernandez, Peter Adrien and William Thomas JJ., CONCUR.)
