17 Fla. L. Weekly Supp. 522a

Online Reference: FLWSUPP 1707MILOInsurance — Personal injury protection — Withdrawal of benefits — Notice — Error to refuse to consider affidavit of physician who conducted independent medical examination due to insurer’s failure to send notice of suspension of benefits — Discovery — Depositions — Expert witness fee — Where insurer sought to depose treating physician regarding medical treatment and care of insured, trial court did not err in granting motion to compel payment of expert witness fee

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FLORIDA WELLNESS & REHABILITATION CENTER, INC., a/a/o Ricardo Milord, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-162 AP. L.C. Case No. 07-14128 SP 05. March 16, 2010. Counsel: Thomas Hunker, United Automobile Insurance Company, Office Of The General Counsel, for United Automobile Insurance Company, Appellant. Mark J. Feldman, for Florida Wellness & Rehabilitation Center, Inc., Appellee.

(Before GERSTEIN, FERNANDEZ, AND SCHLESINGER, JJ.)

(IVAN FERNANDEZ, J.) On January 20, 2007, the insured, Ricardo Milord, was involved in an automobile accident. On February 27, 2007, the insured executed an assignment of PIP benefits to the plaintiff/medical provider, Florida Wellness & Rehabilitation Center, Inc., (Florida Wellness). Thereafter, Florida Wellness submitted bills to the defendant/insurer, United Automobile Insurance Company (UAIC). On April 5, 2007, Ricardo Milord submitted to an independent medical examination (IME) performed by Dr. Marfisi, UAIC’s doctor. Dr. Marfisi concluded that further medical treatment would not be reasonable, related or necessary. On August 15, 2007, Florida Wellness filed a complaint seeking payment of $3,132 in unpaid bills. UAIC denied that the bills at issue were reasonable, related, or medically necessary (RRN).

Subsequently, Florida Wellness filed a motion for final summary judgment for the unpaid bills, clarifying that the bills were for treatment rendered from March 29, 2007, through May 30, 2007. Florida Wellness included the affidavit of the insured and his treating physician, Dr. Lafata, who attested that the treatment was RRN. In opposition, UAIC filed the affidavit of Dr. Marfisi, the IME doctor, who attested that the treatment rendered after April 5, 2007, was not RRN. Florida Wellness argued that Dr. Marfisi’s affidavit should not be considered by the trial court because UAIC failed to send a letter of suspension of benefits to the insured.

On February 29, 2008, a hearing was held on Florida Wellness’s motion for final summary judgment. The trial court held that UAIC breached the contract by not sending notice of suspension of benefits to the insured. As a result, the trial court concluded that Dr. Marfisi’s affidavit could not be considered in rebutting Florida Wellness’s evidence on the issue of RRN. The trial court granted summary judgment in favor of Florida Wellness.

Florida Wellness also moved to compel UAIC to pay an expert witness fee for the taking of the deposition of the insured’s treating physician. UAIC responded that the treating physician was deposed as a fact witness, not as an “expert.” Thus, argues UAIC, the treating physician was not entitled to an expert witness fee. After argument was heard, the trial court granted Florida Wellness’s motion to compel. This appeal ensued.

The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-movant. Sierra v. Shevin, 2000 WL 873292 [25 Fla. L. Weekly D1605a] (Fla. 3d DCA 2000). The movant for a summary judgment must conclusively establish the nonexistence of genuine issues of material fact. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the “slightest doubt” exists, then summary judgment must be reversed. Hancock v. Department of Corrections, 585 So.2d 1068 (Fla. 1st DCA 1991). (The burden for such a movant. . . . is extremely heavy in that (the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.((Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998), quoting Hodkin v. Ledbetter, 487 So. 2d 1214, 1217 (Fla. 4th DCA 1986)).

The primary question before this Court is whether the trial court erred in failing to consider UAIC’s expert affidavit submitted in opposition to Florida Wellness’s motion for summary judgment on the issue of reasonableness, related, and medically necessity. We find that the trial court erred for the reasons stated below.

Section 627.736(4)(b), Florida Statutes, requires that the medical provider notify the insurer, with reasonable proof, of the loss and the amount of expenses or loss incurred as a result of the insured’s injuries. Upon receipt of such notice, the insurer is required to pay the benefit to the provider or provide an itemized list of the charges it wishes to reduce, omit, or decline payment of Additionally, the insurer must obtain reasonable proof that it is not responsible for payment of the benefit within 30 days or such payment may be deemed “overdue.” See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (2002). However, this same section further 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 thirty day time period set forth in this paragraph.

It is well established that “[l]egislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law (“the Law”). Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law. ” Rodriguez, 808 So. 2d at 85 (wherein the court ruled that an automobile insurer’s failure to pay PIP benefits within thirty days after receiving written notice of a covered loss did not forever bar it from contesting the claim). Id. at 87. There is no dispute that the insurer failed to provide the insured or Florida Wellness with an itemized specification of each item that the insurer has reduced, omitted or declined to pay, as required under the statute. However, based on the plain language of the statute, such noncompliance does not preclude the insurer from asserting that the claim was not reasonable, related, or medically necessary. Since the statute permits the insurer to assert this claim at “any time,” this right is not waived by the insurer because it failed to notify the medical provider of its intentions. Therefore, Dr. Marfisi’s IME report should have been considered by the trial court prior to its finding of summary judgment in favor of Florida Wellness.¹

The next question before this Court is whether the trial court erred in granting Florida Wellness’s motion to compel payment of an expert witness fee for the treating physician’s deposition.

UAIC argues that the lower court erred in ordering the insured’s treating physician to be paid an expert witness fee to attend his deposition because he was an ordinary fact witness whose information was not acquired in preparation for trial under Florida Rule of Civil Procedure 1.280(b)(4)(C). In contrast, Florida Wellness argues that the insured’s treating physician was entitled to an expert fee based on Florida Rule of Civil Procedure 1.390.

There are two interpretations of legal authority on whether a treating physician is entitled to an expert witness fee under the above Rules. First, based on an interpretation of Rule 1.390 in combination with Florida Rule of Civil Procedure 1.280(b)(4)(C), this Court, relying upon Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998) has held that a treating physician is not an expert witness but a fact witness when testifying whether the medical bills are reasonable, related, and necessary. As such, he or she is not entitled to receive an expert witness fee for giving a deposition. Olga Navarro Rodriguez, MD a/a/o Marcoly Gonzalez v. Allstate Indem. Co., 10 Fla. L. Weekly Supp. 429a (Fla. 11th Cir. Ct. Apr. 14, 2003).

In support of this interpretation, UAIC relies upon Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) and Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-91 (Fla. 3d DCA 1998). These medical malpractice and negligence cases address related issues under Florida Rule of Civil Procedure 1.280(b)(4)(C). Under these cases, which address the one expert per specialty rule, a treating physician is an expert witness, but is otherwise classified as an ordinary fact witness and not entitled to expert witness fees. Ryder, 715 So. 2d at 290-91. This is because treating physicians do not acquire their expert knowledge for the purpose of litigation but rather simply in the course of treatment. Id.

UAIC also relies upon Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005), a breach of contract action, which explained that the holdings in Frantz and Ryder address the categorization of treating physicians as ordinary witnesses but do not address the limits of such testimony. Id. Castroneves acknowledges, though, that it is possible for a treating physician’s testimony to cross the line into expert testimony. Id. at 186 n.1. This acknowledgment alludes to the second interpretation of legal authority concerning treating physicians to be treated as expert witnesses.

In utilizing this second interpretation, the trial court relied upon the PIP circuit court case of Progressive Express Ins. Co. v. Prof. Med. Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973 (Fla. 11th Cir. Ct. Oct. 14, 2003), which permitted an award of an expert witness fee for a deposition based on the plain language of Florida Rule of Civil Procedure 1.390. In Ugalde, the court found that a treating physician falls within the definition of an expert witness under to Florida Rule of Civil Procedure 1.390(a). Since the Rule’s language uses the word “shall”, a party deposing an expert witness must pay him or her a reasonable fee for his or her testimony. The Ugalde court relied upon the holding in Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA. 2003), which distinguished Ryder. The Lion Plumbing Court disagreed with the contention that the Third District Court of Appeal had established a “black letter rule” that testimony by a treating physician is never considered for purposes of the one expert per side limitation. Id. The Court held that when the testimony of a treating physician is based on specialists’ reports or serves as a conduit to place specialists’ testimony before the jury, the defense must be given the opportunity to present opposing testimony. Id. at 771.

Under this interpretation of Rule 1.280, it appears that it is the nature of the proffered testimony that determines whether a treating physician is an expert or ordinary fact witness for purposes of the one expert per specialty rule. Ugalde, 10 Fla. L. Weekly Supp. at 973. If an expert specifically retained for use at trial has expressed or will express opinions regarding the applicability of the professional standard of care, testimony given by treating physicians on the same issue will be precluded by the one expert per specialty rule. See The Florida Bar, Expert Witnesses, MALP FL-CLE 9-1 § 9.10 (2006). Thus, a treating physician can be considered an expert, restrict the number of expert witnesses available in a specialty, and may be entitled to an expert witness fee under the Florida Rules of Civil Procedure.

In light of the foregoing, this Court does not find that the trial court erred in finding that the treating physician would fall within the definition of an expert witness, thereby entitling him to an expert witness fee. UAIC allegedly sought to depose the insured’s treating physician regarding his medical treatment and care of the insured. However, since no such deposition was made part of record on appeal, this Court cannot determine the nature of the testimony proffered.

Additionally, this Court finds that Florida Wellness is entitled to an award of appellate attorney’s fees on the issue of the treating physician’s expert witness fee, contingent upon it being the prevailing party in the proceedings below.

REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion. (GERSTEIN and SCHLESINGER, JJ., concur.)

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¹Florida Wellness filed a “Confession of Error,” wherein it request this Court to grant partial summary judgment based on an alleged date that UAIC first received a copy of Dr. Marfisi’s IME report. However, the trial court did not make a factual finding as to the date that UAIC received Dr. Marfisi’s report. Therefore, this Court cannot consider this issue, nor make such a determination on appeal. “Appellate Courts are reviewing, not fact finding, courts.” Hall v. State, 541 So. 2d 1125,1128 (Fla. 1989).