17 Fla. L. Weekly Supp. 1079a
Online Reference: FLWSUPP 1711MAURInsurance — Personal injury protection — Discovery — Depositions — Treating physicians are entitled to expert witness fee for attending deposition — Rule does not require finding that deposition occurred “in anticipation of litigation” before awarding fee to expert witness for attending deposition — Notice of claim — Provider did not fail to provide insurer with notice of loss by failing to have patient verify that medical provider rendered the treatment billed — Medical provider cured any defect in notice by submitting disclosure and acknowledgment form prior to litigation which included claimant’s and physician’s signature and substantially complied with requirements of statute — Summary judgment — Opposing affidavit — Trial court erroneously struck peer review because report was drafted after suit was filed or because it was not based on independent medical examination — Peer review affidavit presents factual dispute precluding summary judgment in favor of provider
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLAGLER MEDICAL CENTER, INC., a/a/o Mercedes Maura, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-535 AP. L.C. Case No. 07-3529 CC 05. July 22, 2010. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Teretha Lundy Thomas. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Marlene S. Reiss, the Law Offices of Marlene S. Reiss,P.A., for Appellee.
(Before FIRTEL, SIGLER, and ESPINOSA DENNIS, JJ.)
(PER CURIAM.) Flagler Medical Center, Inc. (“medical provider”) filed a complaint against United Automobile Insurance Company (“insurer”). The complaint alleged that the insurer breached the insurance contract by failing to pay benefits. As an affirmative defense, the insurer asserted that the disclosure and acknowledgment form “is insufficient in that not all treatments are properly listed in Line 1.” The insurer sought summary judgment regarding the medical provider’s purportedly insufficient disclosure and acknowledgment form. The trial court granted summary judgment for the medical provider on this issue.
During discovery, the insurer sought to depose the treating physician. The medical provider requested a protective order and asserted that the insurer pay the treating physician an expert witness fee for attending the deposition. The trial court ordered the insurer to pay the treating physician an expert witness fee for attending the deposition. The trial court also struck an affidavit and peer review report from summary judgment evidence and subsequently granted final summary judgment for the medical provider regarding reasonability, relatedness, and medical necessity. We obtain our appellate jurisdiction to review this post-judgment appeal from section 26.012(1), Florida Statutes.
The insurer argues that the trial court incorrectly required it to pay an expert witness fee to depose the insured’s treating physician. The insurer theorizes that treating physicians obtain information “in the course of making the patient well” and thus become fact witnesses. The medical provider asserts that Florida Rule of Civil Procedure 1.390 does not state that an expert witness acquires or develops knowledge in anticipation of litigation or for trial. The procedural rule defines an expert witness as:
a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject upon which called to testify.
Fla. R. Civ. P. 1.390(a). Interpreting a procedural rule requires de novo review on appeal. Barco v. Sch. Bd. of Pinellas County, 975 So. 2d 1116, 1121 (Fla. 2008). We consider the rule’s plain meaning. Stowe v. Universal Prop. & Cas. Ins. Co., 937 So. 2d 156, 158 (Fla. 4th DCA 2006). Here, the procedural rule’s plain language does not exclude “treating physicians” from the definition of expert witness. Therefore, we hold that Florida Rule of Civil Procedure 1.390(a) includes treating physicians within its definition of expert witness. Furthermore, we conclude that subsection c’s plain language does not require a finding that the deposition occurred “in anticipation of litigation” before awarding a fee to an expert witness for attending a deposition. We agree with the trial court’s order. We follow Florida Rule of Civil Procedure 1.390’s plain language and affirm this non-final order. United Auto. Ins. Co. v. Cereceda & Assocs., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. Aug. 27, 2008), pet. denied, 999 So. 2d 657 (Fla. 3d DCA 2008).
The insurer contends that the county court incorrectly granted summary judgment regarding the disclosure and acknowledgment form. Summary judgment becomes appropriate when the summary judgment evidence on file, “as would be admissible in evidence,” presents no genuine, material fact dispute and “the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The insurer contends that “by failing to have the patient [claimant] verify” that the medical provider rendered the treatment billed, the medical provider did not provide the insurer with notice regarding the “covered loss” as mandated by sections 627.736(4)(b) and (5)(e), Florida Statutes. We reject this argument. Florida Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So. 3d 329, 337 (Fla. 5th DCA 2010). “The 4(b) requirement of notice and the 5(e) requirement of a D & A form are two distinct statutory duties.” Id.
A medical provider cures any defect by submitting the disclosure and acknowledgment form prior to the litigation. United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 26 So. 3d 21, 25 (Fla. 3d DCA 2009). Imperfections do not necessitate concluding that the forms did not satisfy the requirements in section 627.736(5)(e)(5), Florida Statutes. Reese King v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 430a (Fla. 11th Cir. Ct. Feb. 28, 2008), cert. denied, 3D08-2725 (Fla. 3d DCA 2009). Here, the disclosure and acknowledgment form includes the claimant’s signature and the physician’s signature, dated October 13, 2004, under the affirmation section. The form also indicates the services rendered for the initial accident visit: “PT.” The medical provider filed the complaint after the claimant and physician dated the form. We find that the disclosure and acknowledgment form substantially complies with section 627.736(5)(e), Florida Statutes. We conclude that the medical provider cured the form’s imperfections. We affirm the summary judgment.
The insurer also argues that the trial court erroneously struck Dr. Glatzer’s peer review because he drafted it after the medical provider filed this lawsuit or because he did not base it on an independent medical examination. The medical provider concedes that we cannot affirm the summary judgment “on the basis that Dr. Glatzer’s affidavit and so-called ‘peer review’ were not based on a review of an IME1 or obtained prior2 to United’s denial of Flagler’s bills” (footnotes added). We agree and reverse the non-final order excluding the peer review report and affidavit from summary judgment evidence.3
We consider whether the Glatzer affidavit presents a factual dispute precluding summary judgment. The complaint advanced a contractual breach claim. To prove a contractual breach action, a complainant must demonstrate 1) a valid contract, 2) a material breach, and 3) damages. United Auto. Ins. Co. v. Maria Tejada, 17 Fla. L. Weekly Supp. 78a (Fla. 11th Cir. Ct. Oct. 6, 2009), cert. denied, 3D09-3527 (Fla. 3d DCA 2010), cert. granted, 3D09-3410 (Fla. 3d DCA 2010) (remanding for “determination of the issues on the demand letter and attorney’s fees”). Reasonableness, relatedness, and medical necessity relate to the material breach factor. Tejada, 17 Fla. L. Weekly Supp. 78a. We compared the Alsina and Glatzer affidavits, de novo, and found opposing opinions. These opposing opinions present factual disputes regarding material breach. Material factual disputes preclude summary judgment. Fla. R. Civ. P. 1.510(c). We reverse the final summary judgment and the final judgment.
The medical provider seeks appellate attorney’s fees pursuant to section 627.428(1), Florida Statutes. The medical provider only prevails on appeal as to the discovery order. We award section 627.428, Florida Statutes, appellate attorney’s fees to the medical provider only regarding its appellate litigation for the discovery order. United Auto. Ins. Co. v. Florida Institute for Pain, Inc., 17 Fla. L. Weekly Supp. 419a (Fla. 11th Cir. Ct. Feb. 25, 2010).
Reversed in part, affirmed in part, and remanded.
__________________
1United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 900 (Fla. 3d DCA 2009); State Farm Mut. Auto. Ins. Co. v. Hyma Med. Center, Inc., 16 Fla. L. Weekly Supp. 1129a (Fla. 11th Cir. Ct. Oct. 29, 2009) (Leban, J.).
2United Auto. Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246 (Fla. 3d DCA 2009).
3Although the medical provider conceded that we must reverse the order excluding the peer review report and affidavit, it alternatively asserted that the trial court properly struck the affidavit since the affidavit attempts “to introduce inadmissible evidence, i.e., the accident report.” The September 18, 2008 motion for final summary judgment likely did not challenge the alleged hearsay contained in the Glatzer affidavit because the insurer filed the affidavit after the medical provider filed its motion for final summary judgment. Nonetheless, during the summary judgment hearing, the medical provider did not object to any purported hearsay statements in the Glatzer affidavit. See Hr. Tr. 3-11, October 16, 2008. The medical provider also did not direct us to an amended motion for final summary judgment asserting the hearsay argument. By not properly challenging the hearsay statements in the trial court, the medical provider failed to preserve this argument for our review. United Auto. Ins. Co. v. Open Magnetic Imaging, Inc., 15 Fla. L. Weekly Supp. 219a (Fla. 11th Cir. Ct. Jan. 2, 2008).
