17 Fla. L. Weekly Supp. 1057a

Online Reference: FLWSUPP 1711JONEInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Evidence — Error to exclude affidavit of insurer’s non-physician expert regarding correctness of CPT code on claim form where PIP statute does not require that insurer refute medical provider’s CPT code determination with physician’s affidavit — Where excluded affidavit and provider’s deposition present material factual dispute regarding treatment billed as disputed CPT code, summary judgment and final judgment are reversed

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. APPLE MEDICAL CENTER, LLC, a/a/o Dexter Jones, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-268 AP. L.C. Case No. 08-12953 SP 25. September 22, 2010. On appeal from a final summary judgment rendered by the Miami-Dade County Court, Hon. Lawrence D. King. Counsel: Lara J. Edelstein*, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Mark J. Feldman and Michael L. Feldman, Mark J. Feldman, P.A., for Appellee.

[Related opinion at 18 Fla. L. Weekly Supp. 336b.]

(Before TUNIS, THORNTON, and GLICK, S., JJ.)

(PER CURIAM.) Mr. Dexter Jones (“insured”) occupied a vehicle involved in an accident and insured by United Automobile Insurance Company (“insurer”). He sought medical care with Apple Medical Center, LLC (“medical provider”). He assigned his personal injury protection benefits to the medical provider. The medical provider filed a complaint alleging that the insurer breached the insurance contract by failing to pay the medical expenses ($950.00).

As an affirmative defense, the insurer asserted that the medical provider failed to comply with section 627.736(5)(d), Florida Statutes, by submitting a CMS 1500 form with an incorrect current procedural terminology (CPT) code; consequently, by not complying with section 627.736(5)(d), Florida Statutes, the medical provider failed to give the insurer “written notice of the fact of a covered loss.” The county court granted the medical provider’s motion for final summary judgment. The insurer appeals the final summary judgment. Section 26.012(1), Florida Statutes, grants us jurisdiction to review this post-judgment appeal.

I.

The insurer argues that the trial court incorrectly excluded its expert witness’s affidavit (the Bonaparte affidavit) from summary judgment evidence. The insurer posits that the trial court improperly concluded that only a doctor can present expert testimony regarding another physician’s current procedural terminology (CPT) code determination.

Section 627.736(5)(b)l.e., Florida Statutes (2007)¹, permits the insurer to change a CPT code when the insurer determines that the medical provider “improperly or incorrectly upcoded.” Subsection (5)(a)’s relevant portion states:

In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payment accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

§ 627.736(5)(a), Fla. Stat. (2007) (emphasis added). We construe a statute in accord with its plain language. Perez v. Rooms to Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008). We find that the plain language in section 627.736(5)(a), Florida Statutes, does not specifically require a physician from the same licensing chapter to challenge a physician’s current procedural terminology (CPT) code determination.

Section 627.736(7)(a), Florida Statutes (2007), requires an insurer to obtain a valid report from a physician, in the same licensing chapter as the treating physician, to withdraw payment for a treating physician’s services. Florida law distinguishes a withdrawal case from a denial case. “In a withdrawal case the insurer has made payments but then seeks to withdraw all future payments for the same injury.” State Farm Mutual Auto. Ins. Co. v. Hyma Med. Center, Inc., 22 So. 3d 699, 701 (Fla. 3d DCA 2009). In this matter, the medical provider’s complaint alleged that the insurer breached the insurance policy “by failing to pay the plaintiff’s medical expenses.” Furthermore, the insurer concedes that this appeal presents a denial action.² Therefore, the medical provider does not prosecute a withdrawal case but asserts a “denial case,” which “is governed by paragraph 627.736(4)(b), Florida Statutes.” Id. at 700 (emphasis added). We find that section 627.736(7)(a), Florida Statutes, does not apply to the medical provider’s contractual breach action or to this appeal; therefore, the trial court erroneously applied subsection (7)(a)’s same licensing chapter requirement in its summary judgment analysis for this denial case.

Here, the trial court excluded the Bonaparte affidavit from summary judgment evidence and reasoned that “Ms. Bonaparte is not a licensed physician in the state of Florida in the same licensing chapter” as Dr. Lehrman. We hold that the trial court improperly excluded the Bonaparte affidavit as section 627.736(5)(a) did not demand that the insurer refute a licensed physician’s CPT code determination with a physician’s affidavit, and section 627.736(7)(a) did not apply to this civil action.

II.

We consider whether the Bonaparte affidavit presents a material factual dispute precluding summary judgment. Summary judgment becomes appropriate when “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Here, the medical provider filed a contractual breach claim. To prove contractual breach, the medical provider must demonstrate (1) a valid contract, (2) material breach, and (3) damages. United Auto. Ins. Co. v. Florida Inst. for Pain, Inc., 17 Fla. L. Weekly Supp. 419a (Fla. 11th Cir. Ct. Feb. 25, 2010). On appeal, the parties dispute material breach. The alleged breach manifests as improper billing or upcoding.

The Bonaparte affidavit states: (1) “CPT code 99244 billed by the Plaintiff [medical provider] for dates of service 01/09/2008 and 02/06/2008 is not valid”; (2) the medical provider’s “medical documentation failed to meet the requirements of CPT code” because the medical provider “used a consultation code as opposed to a regular office visit” code 99201-99205; (3) the medical provider “failed to document a comprehensive examination” and instead documented an expanded problem focused examination; and (4) code 99244 “was incorrect and upcoded,” and the correct code “is 99202.”

During deposition, the medical provider’s examining physician described CPT code 99244 as “a complete examination, consultation, lasting somewhere, I believe, between 45 and. 60 minutes, that has a fairly comprehensive evaluation.” Regarding his justification for using CPT code 99244, he testified that he completes:

the entire examination and evaluation regardless of how much pain they’re [the patients] having. I test all the nerves and I go through all the procedures, though most of them are probably negative, but I put the time in to be sure, so I feel that’s basically the code and the pricing that I feel is justified.

He further testified that:

I don’t think every [CPT code] variable has to be met or can be met, but I think overall that that’s my judgment, that I felt that code was warranted based on the nature of the history and the areas of complaint and the time it takes me to evaluate it and to determine that there’s nothing serious going on here, so, you know, it’s a judgment call.

The Bonaparte affidavit and Lehrman deposition transcript present a material factual dispute regarding the treatment billed to the insurer as reflected in CPT code 99244. We reverse the final summary judgment and the final judgment.

III.

We deny the medical provider’s motion for section 627.428, Florida Statutes, appellate attorney’s fees since it does not prevail on appeal. United Auto. Ins. Co. v. Lopez, 7 So. 3d 583, 585 (Fla. 3d DCA 2009).

Reversed and remanded.

__________________

*Thomas Hunker appeared at oral argument for United Automobile Insurance Company, Inc.

¹Although the medical provider filed its complaint in 2008, the date when the insurer issues the insurance policy determines the substantive law governing the policy. Menendez v. Progressive Express Ins. Co., Inc., 35 So. 3d 873, 876 (Fla. 2010). Here, the insurance policy issued on September 11, 2007. Thus, the 2007 statute applies to our analysis.

²Initial Br. 20 & 21.