17 Fla. L. Weekly Supp. 1185a

Online Reference: FLWSUPP 1712RAYNInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Trial court erred in finding affidavit of insurer’s expert to be insufficient because it was not supported by independent medical examination — No merit to argument that despite this error appellate court can still affirm ruling on grounds that technical deficiencies in affidavit made it insufficient to create genuine issue of material fact where affidavit was sufficient to preclude summary judgment despite deficiencies, and insurer should have been afforded opportunity to correct deficient affidavit at summary judgment — Discovery — Depositions — Expert witness fees — In absence of transcript or stipulated record of hearing, trial court’s finding that treating physician testified as expert at deposition is affirmed — Explanation of benefits — Grant of summary judgment on claim that insurer did not provide EOB is reversed because there is no private right of action for failure to provide EOB

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLAGLER MEDICAL CENTER, INC. as assignee of Estrella Raynier, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-087 AP. L.C. Case No. 07-10089 CC 25. August 25, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Andrew S. Hague, J. Counsel: Michael J. Neimand and Lara Edelstein, the Office of the General Counsel, United Automobile Insurance Company Trial Division, for Appellant. Anthony L. Tolgyesi, De La Rosa-Tolgyesi, P.A., for Appellee.

(Before PINEIRO, HOGAN SCOLA, and JIMENEZ, JJ.)

(HOGAN SCOLA, J.) This is an appeal of a summary judgment order entered by the county court in Miami-Dade County in favor of the Appellee, Flagler Medical Center, Inc., a/a/o Estrella Raynier (“Flagler Medical”) on the issue of reasonableness, relatedness and necessity (“RRN”) on Count I of Flagler Medical’s Complaint, a breach of contract for PIP benefits. The second issue in the case is Appellant, United Automobile Insurance Company’s (“United Auto”) appeal of the award of expert witness fees to Flagler Medical, for the deposition of the insured’s treating physician, Jorge Alsina, M.D. (“Dr. Alsina”). Third, United Auto appeals the award of $1.00 in nominal damages and attorney’s fees and costs on Count II of the Complaint, an allegation that United Auto willfully and deliberately failed to provide an Explanation of Benefits (“EOB”) and Itemized Specifications as required by section 627.736(4)(b).

For the reasons set out herein, we reverse the trial court’s granting of summary judgment and affirm the granting of the expert witness fee. Because appellant has entered a confession of error as to the third issue, nominal damages, we accept the confession of error as providently entered and remand for the trial court to enter an order consistent with this opinion.

Procedural History

In the summer of 2008, Flagler Medical filed a motion for summary judgment on the grounds that all of Dr. Alsina’s treatment was “RRN”, and that United Auto failed to provide the “EOB”, in violation of Florida Statute §627.736. Flagler Medical filed the affidavit of Dr. Alsina, in support of its Motion. United Auto filed the affidavit of Peter Millheiser, M.D. (“Dr. Millheiser”), dated March 26, 2004, in opposition to the plaintiff’s motion. However, Dr. Millheiser’s affidavit was not based on a physical independent medical examination (“IME”), and further did not contain an attestation of the active practice and records keeping requirements of section 627.736(7)(a). The affidavit, also erroneously referred to the review, as that of a chiropractor, rather than that of a medical doctor. The appellant below, moved to amend the affidavit, having become aware of the error. The trial judge declined to consider an amendment.

At the summary judgment hearing on September 8, 2008, the trial court agreed with Flagler Medical that Dr. Millheiser’s affidavit was insufficient, and further found that United Auto had failed to provide an EOB. The trial court therefore, granted summary judgment and entered final judgment in favor of Flagler Medical. The trial court subsequently awarded attorney’s fees, costs and pre-judgment interest to Flagler Medical’s counsel. From these orders, appeal was taken.

In its appellate brief, Flagler Medical argues that, while the trial court may have erred in discounting Dr. Millheiser’s affidavit on the grounds that it was not premised on a physical IME, this Court can still affirm the trial court’s ruling on the grounds that the affidavit constitutes insufficient evidence to create a genuine issue of material fact, which precludes entry of summary judgment.

On the second issue, expert witness fees, Flagler Medical argues that under Florida Rule of Civil Procedure 1.390, the trial court correctly awarded expert witness fees for the deposition of Dr. Alsina. On the third issue however, Flagler Medical confesses error; regarding its argument that UAI’s failure to provide an EOB to the insured should warrant a summary judgment.

Deficiencies in Dr. Millheiser’s Affidavit

In a motion for summary judgment, all inferences which can be drawn from the evidence are to be taken in the light most favorable to the non-moving party and against the moving party in a motion for summary judgment. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). An overly strict reading of United Auto’s affidavit, as argued here by Flagler Medical, does not comport with the rule that all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966) (holding in review of summary judgment dealing with numerous expert opinion affidavits regarding the issue of negligence that “opposing party’s papers be liberally read and construed, as opposed to a strict reading of the movant’s paper” and that moving party must demonstrate complete lack of triable issues). The findings of Dr. Millheiser, despite the technical errors in his affidavit, would still be sufficient to create a genuine issue of material fact as to the RRN of Raynier’s treatment, and they would have precluded the granting of a summary judgment in Flagler Medical’s favor. See Smith v. Musso, 151 So. 2d 475, 477 (Fla. 2d DCA 1963) (reversing grant of summary judgment to defendant where sworn deposition relied on by defendant left numerous unresolved questions as to liability).

Flagler Medical’s argument that the trial court placed little weight on Dr. Millheiser’s affidavit based on the deficiencies of his affidavit fails. The provider cites as authority, the decision of the Seventeenth Judicial Circuit Appellate Division in United Auto. Ins. Co. v. Peter F. Merkle, MD., P.A., 16 Fla. L. Weekly Supp. 632a (Fla. 17th Cir. Ct. Apr. 21, 2009). However, that Merkle decision was subsequently quashed. United Auto. Ins. Co. v. Peter F. Merkle, MD., P.A., 32 So. 3d 159, 162 (Fla. 4th DCA 2010). The trial court here actually placed little weight on Dr. Millheiser’s affidavit, misinterpreting the applicability of section 627.736(7)(a).¹ The district court in Merkle specifically noted that the appellate division of the circuit court had affirmed the decision of the trial court because it was right, but for different reasons from those given. Id. at 160. The argument advanced by the provider was that United Auto’s affidavit, used to oppose its summary judgment on RRN, was legally insufficient. Id. The Fourth District held in Merkle that in spite of such a deficiency, the correct course of action would have been for the Court to allow United Auto to amend its response and affidavit to correct the insufficiencies. The Fourth District found that failing to do so constituted a departure from the “essential requirements of the law.” Id.

Given the similarities in the factual pattern between the instant case and the Merkle case, we reject the appellant’s suggestion that this Court apply the “Tipsy Coachman” doctrine. United Auto should have been afforded an opportunity to correct a deficient affidavit at summary judgment. Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla.1968) (holding that party should have been afforded at least one opportunity to amend or supplement the expert affidavit to correct technical deficiencies); McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983) (holding that non-moving party should have received an opportunity to correct the deficiency in an expert affidavit as “summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit”).

Flagler Medical also argues against Dr. Millheiser’s affidavit on the grounds that he failed to include an attestation of the active practice and records keeping requirements of section 627.736(7)(a). Numerous Third District cases have flatly rejected the requirement that reasonable proof to defend a claim under section 627.736(4)(b) which we have in the instant case, must be read to include requirements from section 627.736(7)(a). State Farm Mut. Auto. Ins. Co. v. Hyma Medical Center, Inc., 22 So. 3d 699 (Fla. 3d DCA 2009) (rejecting a “right-for-wrong-reason” argument by provider and concluding that the circuit court erred, when it accepted provider’s argument that section 627.736(7)(a) requirements applied in a denial case); Partners in Health Chiropractic a/a/o Neocles Lebrun v. United Auto. Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Metro Injury & Rehab Center a/a/o Magda Davis, 16 So. 3d 897 (Fla. 3d DCA 2009). United Auto should have been provided an opportunity to correct the technical deficiencies. Furthermore, its affidavit is sufficient to preclude the entry of summary judgment in favor of Flagler Medical on the RRN issue.

Expert Witness Fees

As to the second issue on appeal, the expert witness fee issue, no transcript or stipulated statement has been provided of the hearing. In the absence of either, we must affirm the decision of the trial court’s finding Dr. Alsina to be an expert and the amount awarded as a fee, correct. Smith v. White, 816 So. 2d 209 (Fla. 3d DCA 2002); All American Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995); Hirsh v. Hirsh, 642 So. 2d 20 (Fla. 5th DCA 1994). As a result, our review is limited to determining whether there are any legal errors which appear on the face of the order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006); Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000); Katowitz v. Katowitz, 684 So. 2d 256, 257 n.1 (Fla. 3d DCA 1996).

Where there is no transcript of the lower court proceedings, a trial court’s rulings come 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 Appellant, United Auto. Ahmed v. Traveler’s 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.

Flagler Medical argues that Dr. Alsina serves as its expert under Rule 1.390(a).² That rule defines an expert 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 a subject upon which called to testify.” Fla. R. Civ. P. Rule 1.390(a). Flagler Medical argues that Florida Rule of Civil Procedure 1.390(c) entitles Dr. Alsina to an expert witness fee. Flagler Medical places its reliance upon Progressive Express Ins. Co. v. Professional Medical Group, Inc., which held that pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. 10 Fla. L. Weekly Supp. 973a (Fla. 1 lth Cir. Ct. Oct. 14, 2003).

On the other hand, United Auto argues that treating physicians are to be 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 expert 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).

Even considering the cases argued by both Flagler Medical and United Auto, without a transcript, we must presume that the trial court’s findings that Dr. Alsina’s testimony crosses into matters, which draw upon his expert opinion and that go towards litigation, rather than making the patient well, is correct. United Auto has failed to satisfy its burden, that the trial court made any erroneous findings in this regard, and in the absence of a hearing transcript, we will not disturb the ruling of the lower court. Therefore, we affirm the trial court’s non-final order requiring United Auto to pay expert witness fees prior to taking Dr. Alsina’s deposition.

United Auto’s Failure to Provide An Explanation of Benefits

Flagler Medical has confessed error as to the third issue on appeal, the trial court’s grant of summary judgment on the failure of United Auto to provide an EOB. In United Auto. Ins. Co. v. A 1st Choice Healthcare Systems a/a/o Turner, the trial court granted summary judgment to provider on its EOB claim, and awarded that provider $1.00 in nominal damages as well as $19,530.13 in attorney fees and costs, in a fashion similar to the instant case. United Auto. Ins. Co. v. A 1st Choice Healthcare Systems a/a/o Turner Plante, 21 So. 3d 124, 127 (Fla. 3d DCA 2009). The award was affirmed by the appellate division of the circuit court, but the Third District Court of Appeal reversed and concluded that no private right of action exists for a failure to provide an EOB to a claimant. Id. (rejecting the notion that an insurer must provide an EOB on demand within 30 days explaining its failure to pay a claim and reaffirming that an insurer can contest a claim relying on reasonable proof that treatment is not RRN even after a claim is long overdue). Therefore, Flagler Medical’s confession of error is well taken, in light of the A 1st Choice Healthcare Systems decision, and we reverse as to this issue.

Conclusion

This Appellate Court reverses and remands the summary judgment finding made below that the affidavit of Dr. Millheiser failed to create a genuine issue of material fact regarding the reasonableness, relatedness and necessity of the treatment provided. We affirm the lower court’s order granting expert witness fees as to the deposition of Dr. Alsina. We reverse as to the issue of the failure of United Auto to provide an EOB to Flagler Medical, as there is no right of action for such a violation.

Finally, this Appellate Court reverses the lower court’s order awarding Flagler Medical’s attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002); Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).

The Appellee’s Motion for Attorney’s Fees is denied, because Appellee is not the prevailing party in this appeal. Thus, appellate attorney’s fees are not attainable. § 627.428(1), Fla. Stat. (2009).

For these reasons, we direct the lower court to vacate the order granting final judgment in favor of Appellee, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED. (PINEIRO J., concurs. JIMENEZ, J, concurs in part and dissents in part with an opinion.)

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(JIMENEZ, J., concurring in part, dissenting in part.) I agree with the trial court’s affirmance of the second issue, the award of expert witness fees to Dr. Alsina.

I also agree with the reversal on the third issue, the trial court’s grant of summary judgment on the failure of United Auto to provide an EOB. Flagler Medical has confessed error as to this issue, and the confession of error is deemed well taken.

However, I disagree with the reversal on the first issue on appeal, the trial court’s grant of summary judgment to Flagler Medical as to the RRN of Dr. Alsina’s treatment, and would instead affirm. Flagler Medical properly argued before the trial court that Dr. Millheiser’s affidavit, relied on inadmissible hearsay, and has preserved this issue on appeal. Flagler Medical argues that the trial court properly held that Dr. Millheiser’s affidavit suffered from numerous technical and substantive deficiencies.

As Flagler Medical points out, the affidavit of Dr. Millheiser was incompetent under Florida Rule of Civil Procedure 1.510(e). Part of that rule requires that Dr. Millheiser be able to set forth facts as would be admissible in evidence. While it is true, that an expert like Dr. Millheiser under § 90.704, Florida Statutes (2009), may rely on inadmissible documents to form an expert opinion, he cannot abuse the rule in the fashion that he has, using it as a conduit to admit inadmissible evidence. Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006).

Dr. Millheiser attached numerous documents to his affidavit, which he could not authenticate; additionally, no exception existed to make these documents admissible. Even had the trial court allowed Dr. Millheiser to prepare an amended affidavit, that would not cure the problem, because he cannot formulate an opinion without making reference to statements from Dr. Alsina, which are inadmissible to United Auto. See Gerber v. Iyengar, 725 So. 2d 1181, 1185 (Fla. 3d DCA 1998) (concluding that by offering an expert’s testimony regarding the expert’s conversation with an author of a treatise, the defendant sought to use the expert’s testimony to introduce inadmissible testimony).

When an expert’s testimony allows him or her to make constant references to inadmissible hearsay, the evidence is presented in a manner that defeats the rules of evidence. See Fried v. State Farm Mut. Auto. Ins. Co., 904 So. 2d 566 (Fla. 3d DCA 2005) (holding it was error for counsel to ask an expert about photographs which had been ruled inadmissible, because to do so, placed information about the inadmissible photographs in front of the jury). An expert may testify as to items which are hearsay, so long as the testimony is not based entirely on inadmissible hearsay. Maklakiewicz v. Berton, 652 So. 2d 1208, 1209 (Fla. 3d DCA 1995) (“The record demonstrates that Officer Delano’s testimony served solely as a conduit for inadmissible hearsay: the officer physically inspected the accident scene but testified that he would be unable to render an opinion with finality without relying on the hearsay statements.”)

Because Dr. Millheiser’s opinion was based exclusively on inadmissible facts, his opinion served as an improper conduit for hearsay. Id. When this type of reliance occurs, and such inadmissible evidence is relied upon, then the danger of prejudice outweighs the probative value of the opinion evidence. Id. The matter of qualifications of an expert witness falls within the sound discretion of the trial court. Bisque Associates of Florida, Inc. v. Towers of Quayside No. 2 Condominium Inc. et. al, 639 So. 2d 997 (Fla. 3d DCA 1994); Estate of Horowitz v. City of Miami Beach, 420 So. 2d 936 (Fla. 3d DCA 1982).

As Flagler Medical pointed out during the hearing:

MR. TOLGYESI: And our position on the motion for summary judgment, the court can only rely on admissible evidence. If we were going to trial in five minutes from now, Dr. Millheiser’s peer review report would not be admissible.

The trial court opined that Dr. Millheiser’s affidavit “falls short” and there were “close to a half dozen reasons why the affidavit should be stricken, both technical and substantive.”

Because the trial court did not abuse its discretion, respectfully I would AFFIRM.

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¹The actual reason given by the trial court in Merkle, in granting summary judgment to the medical provider, was that the peer review was not supported by a section 627.736(7)(a) report based on a physical IME, and that the peer review was legally insufficient to dispute RRN.

²In so doing, Flagler Medical, has chosen Dr. Alsina, as its expert for the M.D. specialty for trial purposes.