17 Fla. L. Weekly Supp. 739a
Online Reference: FLWSUPP 1709RICHInsurance — Personal injury protection — Coverage — Medical expenses — Denial — Peer review report which was not based on physical examination of patient was nonetheless sufficient to create material issue of fact precluding summary judgment in provider’s favor — Depositions — Trial court did not err in requiring insurer to pay expert witness fee for deposition of treating physician
Cert. Denied 35 Fla. L. Weekly 1131a
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP A/A/O PEDRO RICHETTI, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-624 AP. L.C. Case No. 2008 006475 CC 25. An Appeal from the County Court in and for Miami-Dade County. Lawrence D. King, Judge. March 30, 2010. Counsel: Michael J. Neimand for Appellant. Armando Brana and Virginia Best, for Appellee.
(Before DIANE WARD, JACQUELINE H. SCOLA, DARYL E. TRAWICK, JJ.)
(PER CURIAM.) Defendant/Appellant, United Automobile Insurance Company (“UAIC”) appeals an order of the trial court granting Plaintiff/Appellee, Professional Medical Group’s (“PMG”) Motion for Summary Judgment and corresponding award of attorney’s fees and costs. The Court, having read the briefs of the parties and considered the oral arguments, is fully advised in the premises. This Court adopts the following findings of fact and makes the following conclusions of law:
On September 28, 2007, Pedro Richetti, the insured, was involved in a motor vehicle accident wherein he sustained injuries to his lower back. Thereafter, in or around November, 2007, Mr. Richetti sought treatment for his back pain at PMG under the care of Dr. Francisco Vazquez, M.D. Mr. Richetti received treatment and underwent therapy throughout November, 2007 until February 4, 2008.
Due to the non-payment of benefits, PMG, as assignees of Mr. Richetti, filed a complaint against UAIC on May 12, 2008 for breach of contract. An answer was filed by UAIC wherein it averred that the claim was denied based on a finding that the treatment Mr. Richetti underwent was unreasonable, unrelated, and unnecessary supported by a peer-review conducted by Dr. Richard Glatzer, M.D.
PMG filed a motion for summary judgment which was granted by the trial judge based on the findings that: (1) the affidavit and supporting peer-review report of Dr. Glatzer did not constitute a valid medical report as it was not based upon a physical examination; (2) UAIC’s contentions of disputed genuine issues of material fact based upon the alleged substantial impeachment of Dr. Vasquez during his deposition were without merit; and (3) PMG had proven by substantial credible evidence that pursuant to Fla. R. Civ. P. 1.510 they were entitled to the relief sought. Final Judgment was entered on December 8, 2008 wherein the trial judge reserved jurisdiction on the issue of attorney’s fees and costs.
PMG filed a Motion for Protective Order and for Attorney’s Fees and Costs was filed on October 30, 2008 requesting an expert witness fee for the deposition of Dr. Francisco Vazquez pursuant to Fla. R. Civ. P. 1.390(a). The same was granted in an Agreed Order filed on November 14, 2008. A Motion to Determine Amount of Attorney’s Fees & Costs was filed by PMG on December 9, 2008. Final Judgment of Attorney’s Fees & Costs for Plaintiff, Professional Medical Group, Inc. was filed on March 25, 2009. This appeal followed.
At issue on appeal is: whether the trial court erred in granting summary judgment in favor of PMG where UAIC’s peer review created a genuine issue of disputed fact; whether the trial court erred in requiring UAIC to pay expert witness fees where the witness was the insured’s treating physician; and whether the reversal of the underlying judgment in favor of PMG requires reversal of the statutory fee award in its favor.
When a claim for benefits is subject to Florida’s No-Fault Statutes and may potentially implicate the above-referenced statutes, it must be distinguished whether the situation presents facts that reveal an initial outright denial of benefits or whether there is a withdrawal of future benefits. See, United Automobile Insurance Company v. Santa Fe Medical Center, a/ a/ o Telmo Lopez, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]; Partners in Health Chiropractic, a/ a/ o Neocles Lebrun v. United Automobile Insurance Company, 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. During oral arguments, both parties conceded that the facts established a denial case for the purposes of the proper application of §627.736, Fla. Stat. (2009).
In a denial case, a court should look to see whether the insurer has: declined payment, refused to pay any benefits, omitted payment, rejected payment, reduced payment, or denied a part of a claim. Id. When the court has determined that the facts presented establish a denial case, §627.736(4)(b), (2009) applies.
The court in Partners in Health Chiropractic explains: “If an insurer either denies a claim completely, that is refuses to make any payments whatsoever, or denies one or more discrete charges or claims (whether for a treating physician’s services or otherwise,) the insurer’s actions constitute a denial of benefits….” Partners in Health Chiropractic, 21 So. 3d at 860.
Once a case is classified as a §627.736(4)(b) denial case, a distinct set of rules apply. In a denial case, the court does not solely focus on the thirty (30) day limitation prescribed in the statute. Rather, the court emphasizes the portion of the statute which states:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph. (Emphasis added.)
§ 627.736(4)(b), Fla. Stat. (2009).
In focusing on this portion of the statute, case law explains that in a §627.736(4)(b) denial case,
[w]hile payment of a claim may be technically “overdue” if not paid within thirty days of receipt, the insurer may ‘at any time,’ reject such a claim on the grounds that it is neither reasonable, related, nor necessary. . . [T]o reject or deny a claim, all an insurer need do is provide an “itemized specification of each item that the insurer [has] reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge.” And where the insurer has “reasonable proof” to establish that it is not responsible for payment, payment will not be deemed overdue even if not made within thirty days of notice of the claim.
Partners in Health Chiropractic, 21 So. 3d 858 at 861.
Thus, the “reasonable proof” in a denial case may be the itemized list referenced above or it may come in the form of a medical report. The court in Partners in Health Chiropractic explains that, “while such proof may come in the form of a report described in §627.736(7)(a), such a report is not necessary to deny a claim under §627.736(4)(b). . .” Id. (Emphasis added.) Further, while “reasonable proof” is not defined in the statutes, the court explained, “it is clear that subsection (4)(b) does not require that a “valid report” be obtained to protect an insurer from being assessed statutory penalties when denying a claim. [Further, t]he statute does not require the insurer to obtain a report or proof under subsection (4)(b) before denying a claim.” Santa Fe Medical Center, 21 So. 3d at 65.
The court in Santa Fe Medical Center further clarifies,
§627.736(4)(b) imposes on the insurer a thirty-day time period in which to pay PIP benefits, if the claim is reasonable, related, and necessary. Under subsection (4)(b), a claim is due within the thirty-day period only if it is reasonable, related, and necessary. The statutory penalty for failing to pay a claim that is later determined to have been reasonable, related, and necessary, is an assessment of interest against the insurer . . . and potentially an award of attorney’s fees.”
Santa Fe Medical Center, 21 So. 3d at 64.
Thus, in reviewing denial cases, it is clear that pursuant to §627.736(4)(b) Fla. Stat. (2009) an insurance carrier has thirty (30) days to pay benefits on a claim that it determined is reasonable, related and necessary. Failure to pay benefits that are reasonable, related and necessary within this time limitation exposes the carrier to penalties in the form of interest and possibly attorney’s fees. However, when it is believed that benefits are not reasonable, related and necessary and the insurance carrier wishes to deny the claim, it may do so at any time. In that case, the carrier is only required to provide “reasonable proof” which may come in the form of an itemized list. The same may also come in the form of a §627.736(7)(a) medical report, however, the same is not a requirement under §627.736(4)(b).
Turning to the case at bar, since the parties concede that the facts herein establish a denial case, §627.736(4)(b) applies and only “reasonable proof” was required for UAIC to deny benefits. Thus, we find that the peer-review report submitted by Dr. Glatzer should have been considered and, contrary to the trial court’s finding, the report did not have to be based on a separate physical examination. As such, the admissibility of the peer review report creates a genuine issue of disputed fact making the grant of summary judgment inappropriate. We therefore reverse.
Also at issue on appeal is the grant of expert witness fees to Dr. Vazquez. Dr. Vazquez provided medical treatment for the insured, from November, 2007 through February, 2008. A Motion for Protective Order and for Attorney’s Fees and Costs was filed with the court on October 30, 2008 by Plaintiff/Appellees. Therein, it was asserted that Dr. Vazquez was an expert witness entitled to an expert witness fee pursuant to Fla. R. Civ. P. 1.390(a). Dr. Vazquez was deposed on November 11, 2008 by Defendant/Appellant. Therein, Dr. Vazquez was questioned extensively regarding the treatment he provided to the insured, Mr. Richetti.
Plaintiff/Appellees argue that Defendant/Appellant failed to provide a transcript of the hearing reflecting what arguments, if any, it made to the trial court or what reasons the trial court may have considered in granting Dr. Vazquez an expert witness fee. As support for their argument Plaintiff/Appellees cite Smith v. White which holds that “[i]n the absence of a transcript or a stipulated statement of the proceedings below, we are compelled to affirm the order under review.” Smith v. White, 816 So. 2d 209 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1128c]. In their statement of the rule, Plaintiff/Appellees are correct. Generally, “the decision of the trial court comes…clothed in a presumption of correctness… [T]he burden is on appellant to demonstrate reversible error… [T]he failure to provide either a transcript or proper substitute for one, such as a reconciliation of the facts by the parties and trial court judge, is usually fatal.” Cassella v. Cassella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990).
However, Plaintiff/Appellees fail to recognize that failure to attach a transcript is not fatal to Defendant/Appellant if the appellate court, in their review of the record, observes errors which appear on the face of the judgment. See, Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]. Therefore, although a transcript of the proceedings below is not included in the record, this Court may review this issue to determine whether reversible error is apparent on the face of the judgment.
Thus, in considering whether Dr. Vazquez may be considered an expert entitled to fees under Fla. R. Civ. P. 1.390(a), it has been held that in order to determine whether a witness is an expert or not depends on the nature of the testimony elicited by that witness. See, Progressive Express Insurance Company v. Professional Medical Group, Inc., 10 Fla. L. Weekly Supp. 973a, (Fla. 11th Cir. Ct. 2003). The court in Progressive awarded expert witness fees to the treating physician reasoning that the treating physician fell within the definition of an expert witness pursuant to Fla. R. Civ. P. 1.390 and finding that “if petitioner [was] only seeking to elicit factual testimony regarding the medical care and treatment provided to its insured, it has the option of deposing the physician’s medical records custodian, in conjunction with subpoenaing any and all medical records relating to the patient’s treatment and condition for its review.” Id.
We are inclined to agree and therefore find that there was no error on the face of the judgment as contemplated in Porteous. The trial court properly granted Plaintff/Appellees Motion for Protective Order and for Attorney’s Fees and Costs with regard to the expert fees1.
Accordingly, we find the statutory fee award, granted to counsel for Plaintiff/Appellees, should be reversed. See, Dooley & Mack Constructors, Inc. v. Buildtec Construction Group, Inc., 983 So.2d 1243 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1657a].
Therefore, it is hereby ORDERED and ADJUDGED the Motion for Summary Judgment is REVERSED and REMANDED for entry consistent with this opinion.
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1Alternatively, this issue is rendered moot pursuant to the grant of an Agreed Order filed on November 14, 2008 regarding the expert witness fees. Dept. of Health and Rehabilitative Services v. G&J Investments Corp., 541 So. 2d 1197 (Fla. 3d DCA 1988) (holding that one cannot participate in an inducement of error and then urge error in same as a basis for recovery.)
