17 Fla. L. Weekly Supp. 163d
Online Reference: FLWSUPP 1703IBARInsurance — Personal injury protection — Withdrawal of benefits — Valid medical report — Physician preparing report for purposes of withdrawal of benefits does not have to personally examine insured — Reporting physician can review another physician’s examination and treatment records of insured — Discovery — Depositions — Expert witness fee — Error to require insurer to pay expert witness fee for deposition of treating physician deposed for purpose of discovering his course of treatment of insured
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FLORIDA INSTITUTE FOR PAIN, INC. a/a/o MARGARITA IBARRA. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-553 AP. L.T. Case No. 07-003284 CC 25. December 9, 2009. An Appeal from the County Court for Miami-Dade County, Andrew S. Hague, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Jose R. Iglesias, Jose R. Iglesias and Associates, Inc. and Chelin V. Sampedro, Chelin V. Sampedro, P.A., for Appellee.
(Before LAWRENCE SCHWARTZ, SCOTT J. SILVERMAN and JOSE M. RODRIGUEZ, JJ.)
(RODRIGUEZ, J.) This is an appeal from a final judgment dated November 3, 2008, of the county court. In 2007, Appellee, Florida Institute for Pain, Inc., sued the Appellant, United Automobile Insurance Company, for personal injury protection (PIP) benefits arising out of a 2005 automobile accident. Appellant answered and asserted an affirmative defense that the medical bills were not reasonable, related or necessary. The issues on appeal are whether or not the trial court erred by 1) failing to consider the Affidavit and Peer Review Report of Dr. Richard L. Glatzer [medical report] and; 2) requiring the Appellant to pay expert witness fees to depose the treating physician, Dr. Raymond Ruszkowski. We find that the trial court erred as to both issues.
As to the first issue on appeal, at a hearing on Appellee’s motion for summary judgment, the trial court had granted the motion on the ground that the treatment was reasonable, related and necessary. But, the trial court had refused to consider in opposition, Dr. Glatzer’s medical report on the ground that it was not valid because it was not based on or factually supported by an independent medical examination (IME).
Appellee’s argument that the medical report of Dr. Glatzer was invalid as a “paper review” because it was not factually supported by an IME of the insured is without merit. In a withdrawal of PIP benefits case, the Third District Court of Appeal in United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213, 1215 (Fla. 3d DCA 2008) held that under section 627.736(7)(a), Florida Statutes, a valid medical report may be based upon the physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination. The physician preparing the report is not required to have personally conducted a physical examination. United Auto. Ins. Co. v. Metro Injury & Rehab Ctr. a/a/o Madga Davis, 16 So. 3d 897, 900 (Fla. 3d DCA 2009). The physician preparing the report can review another physician’s examination, whether an IME or treating physician’s, and the treatment records of the insured. Id. In other words, a medical report need not be predicated on an IME under Bermudez in order for it to be a valid report. Id.
Based on Bermudez and Metro Injury, we find that the trial court in this case erroneously held that under section 627.736(7)(a), a medical report to be valid for the withdrawal of PIP benefits must be based upon or factually supported by an IME. Dr. Glatzer’s report created a material issue of fact as he reviewed the insured’s medical records, treatment records and examination report of the treating physician.
As to the second issue on appeal, Appellee moved for a protective order as to the deposition of the treating physician, Dr. Ruszkowski, requesting the payment of an expert witness’ fee. The trial court granted Appellee’s motion and required the Appellant to pay an expert witness fee of $350/hour to depose Dr. Ruszkowski. We find that the trial court erred by requiring the Appellant to pay an expert witness fee to depose Dr. Ruszkowski.
The Appellee argues that Dr. Ruszkowski is unquestionably an expert under Fla. R. Civ. P. 1.390(a), and entitled to a fee for his deposition. However, the Appellant is correct in arguing that the trial court erred because Dr. Ruszkowski was an ordinary fact witness. His deposition was for the purpose of discovering his course of treatment of the insured.
Florida Rules of Civil Procedure 1.280(b)(4)(D) and 1.390(c) authorize expert witness fees for those witnesses who acquire or develop knowledge “in anticipation of litigation or for trial.” But, ordinarily treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. They are treated as ordinary fact witnesses and are not entitled to charge expert witness fees for depositions. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005);Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998)(treating physicians should not have been classified as expert witnesses but as ordinary fact witnesses); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981).
Fittipaldi recognizes that it is possible that the testimony of treating physicians “could cross the line into expert testimony.” 905 So. 2d at 186. n.1. The Appellee’s cases of Progressive Express Ins. Co. v. Professional Medical Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Oct. 14, 2003) and United Automobile Ins. Co. v. Cereceda & Associates a/a/o Onica Blaize, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Aug. 27, 2008) cross that line and are distinguishable from this case. In those cases, the treating physicians were deposed as expert witnesses entitling them to expert fees. Their depositions were developed as possible evidence at trial by the insurer and acted as conduits for specialized testimony. They were asked questions that an expert would have asked and answered and not questions as to what treating physicians do.
Therefore, we reverse the trial court below because it erred in 1) granting summary judgment to the Appellee and 2) granting expert witness fees to the treating physician for his deposition and remand this cause to the trial court for further proceedings consistent with this opinion. Appellee’s motion for appellate attorney’s fees pursuant to section 627.428(1), Florida Statutes (2007) is denied.
REVERSED AND REMANDED. (SCHWARTZ and SILVERMAN, JJ. concur.)
