17 Fla. L. Weekly Supp. 419a

Online Reference: FLWSUPP 1706MORI

NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 806aInsurance — Personal injury protection — Summary judgment — Error to exclude peer review report and affidavit from summary judgment evidence where report was substantiated by insured’s treatment records and treating physician’s examination of insured — Affidavits present genuine factual dispute regarding unpaid medical bills that precludes summary judgment — Discovery — Depositions — No error in requiring insurer to pay expert witness fee to depose treating physician — Appellate court lacks jurisdiction to reverse purported attorney’s fees order not contained in appellate record — Medical provider is awarded partial appellate attorney’s fees for discovery issue on which it prevailed

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA INSTITUTE FOR PAIN, INC., a/a/o MIRTHA MORIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-425 AP & 08-566 AP. L.C. Case No. 06-10372 CC 25. February 25, 2010. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Jacqueline Schwartz. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Chelin V. Sampedro, Chelin V. Sampedro, P.A., for Appellee.

(Before PINEIRO, TRAWICK, and MURPHY, JJ.)

(PER CURIAM.) An automobile accident occurred involving Mirtha Morin (“insured”). The insured suffered medical injuries and received treatment from the Florida Institute for Pain, Inc. (“medical provider”). The insured assigned her insurance policy benefits to the medical provider. The medical provider submitted the medical bills to United Automobile Insurance Company (“insurer”) for payment. The insurer declined to pay the medical provider. The medical provider filed a complaint against the insurer and alleged that the insurer breached the insurance contract. During discovery, the county court ordered that the party deposing the medical provider’s physician pay the physician an “expert witness fee” at “$400 an hour for at least 2 hours.” The medical provider sought summary judgment regarding the medical care’s reasonability, relatedness, and necessity.

Trial courts may not grant summary judgment “unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively 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.” Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997). The trial court must view “every possible inference” in the non-moving party’s favor. Id.

The trial court excluded the insurer’s peer review report and affidavit from summary judgment evidence. The insurer argues that the county court erred by not considering the peer review report and the affidavit as summary judgment evidence because section 627.736, Florida Statute “does not require a physical examination by the doctor reviewing the medical records” or an independent medical examination “in order for a peer review report to be valid.”¹ The medical provider asserts that the “[peer review] report is not factually supported by a physical examination conducted by a licensed physician atthe request of United Automobile pursuant to 627.736(7)(a).”

The insurer’s medical expert does not need to personally examine the insured in order to provide a valid section 627.736(7)(a), Florida Statutes peer review report. United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 900 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 247 (Fla. 3d DCA 2009). Under section 627.736(7)(a), Florida Statute, a peer review report becomes valid when the peer review physician substantiates it with the insured’s treatment records and treating physician’s examination. Metro Injury, 16 So. 3d at 900. Here, the physician for the medical provider averred that she physically examined the insured; thus, the medical provider’s argument fails since a medical doctor examined the insured prior to the peer review physician conducting his section 627.736(7)(a), Florida Statute peer review. Therefore, the insurer presented a valid peer review report and affidavit to the county court. We conclude that the county court incorrectly excluded the Glatzer affidavit and peer review report from summary judgment evidence.

Having concluded that the trial court erred by excluding the insurer’s peer review report and affidavit from summary judgment evidence, we next consider whether the peer review report and affidavit preclude summary judgment for the medical provider. The medical provider’s complaint theorizes that the insurer breached the insurance contract by failing to pay the insured’s medical bills. A breach of contract action must establish the following elements: 1) a valid contract, 2) a material breach, and 3) damages. Sulkin, M.D. v. All Florida Pain Mgmt., Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006). Having reviewed de novo two affidavits submitted as summary judgment evidence, we find that the De La Portilla and Glatzer affidavits contradict regarding the medical care’s reasonability, relatedness, and necessity. This contradiction presents a genuine factual dispute regarding damages (the unpaid medical bills), which precludes summary judgment.

The insurer contends that the county court erred by requiring the insurer to pay an expert witness fee to depose the treating physician where the treating physician acquired her knowledge during the course of making her patient well and not for litigious purposes. A “treating physician participates [in a deposition] as an expert witness entitling him or her to an expert witness fee.” United Auto. Ins. Co. v. Cereceda & Assocs., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. Aug. 27, 2008), cert. denied, 3D08-2307 (Fla. 3d DCA 2008). See Progressive Express Ins. Co. v. Prof’l Med. Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003) (“Under Fla. R. Civ. P. 1.390, the treating physician clearly falls within the definition of an expert witness, thereby entitling him to receive an expert witness fee”); contra United Auto. Ins. Co. v. Comprehensive Health Ctr., Inc., 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Cir. Ct. Oct. 21, 2009) (concluding that the trial court erred “by requiring the insurer to pay expert witness fees to depose the two treating physicians”), petition for cert. filed, 3D09-3370 (Fla. 3d DCA). Here, the expert witness’ deposition testimony and affidavit indicate that she possesses a medical degree, practices her profession, and possesses experience in treating motor vehicle accident patients; thus, she meets the expert witness requirements established in Florida Rule of Civil Procedure 1.390(a). An expert “whose deposition is taken shall be allowed a witness fee.” Fla. R. Civ. P. 1.390(c). A procedural rule “should be interpreted wherever possible to give effect to every subdivision and clause in it, in order to accord meaning and harmony to all of its parts.” Alonso v. State, 17 So. 3d 806, 808 (Fla. 3d DCA 2009). Competent substantial evidence in the expert witness’ deposition testimony and affidavit justify the county court’s ruling. The county court correctly followed the law as expressed by Rule 1.390 and Cereceda. We affirm the county court’s non-final discovery order granting expert witness fees.

The insurer argues that if we reverse the final summary judgment for the insured, this reversal will require us to also reverse the statutory fee award in the insured’s favor. Appellate courts limit their review to the record on appeal. Carrillo v. Optimo, Inc., 3 Fla. L. Weekly Supp. 571a (Fla. 11th Cir. Ct. Dec. 29, 1995). Appellate courts lack jurisdiction to review orders which the lower tribunal did not render. Morgan v. State, 994 So. 2d 454 (Fla. 3d DCA 2008); Rivera v. Dade County, 485 So. 2d 17 (Fla. 3d DCA 1986). Here, the appellate record does not contain a trial court order awarding trial court attorney’s fees to the insured. Also, the insurer did not direct us to this purported order’s location by citing to the appellate record. We lack an attorney’s fee order to review on appeal and consequently lack jurisdiction to reverse a purported attorney’s fee order.

The medical provider seeks appellate attorney’s fees pursuant to section 627.428, Florida Statute. Here, we reverse the final judgment and summary judgment but affirm the county court’s non-final order awarding the expert witness deposition fee. Because the insurer prevails regarding the summary judgment appeal but the medical provider prevails regarding the non-final discovery order, we partially grant the medical provider’s motion for appellate attorney’s fees for legal work performed in defending the non-final discovery order. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398, 400 (Fla. 1st DCA 1984).

We reverse the final judgment and summary judgment order. We affirm the county court’s non-final discovery order awarding expert witness deposition fees. We lack jurisdiction to review the purported county court order awarding the medical provider trial court attorney’s fees since the insurer failed to place this challenged order in the appellate record. We grant in part and deny in part the medical provider’s motion for appellate attorney’s fees and remand for the trial court to award the insured appellate attorney’s fees only in connection with the non-final discovery order.

Reversed in part, affirmed in part, and remanded.

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(Trawick, J. Concurring in Part and Dissenting in Part.) I am in agreement with all aspects of the majority opinion except for the award of expert witness fees. I would reverse the lower court on this issue. A treating physician is not an expert witness, whether it is for purposes of deposition or trial. I am in agreement with the decision reached by our colleagues in United Auto. Ins. Co. v. Comprehensive Health Ctr. Inc., 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Cir. Ct. Oct. 21, 2009). For the reasons expressed in that opinion, I respectfully dissent.

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¹The medical provider conceded that the peer review physician “did not need to personally conduct an independent physical examination of the insured in order for his peer review report to be valid based on United Automobile Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008)” (Answer Br. 16, n.2) (emphasis in original).