17 Fla. L. Weekly Supp. 520a
Online Reference: FLWSUPP 1707MONT
NOT FINAL VERSION OF OPINION
Subsequent Changes at 18 Fla. L. Weekly Supp. 501aInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Although trial court erred in refusing to consider peer review affidavit because it was not obtained prior to denial of medical bills, grant of summary judgment in favor of medical provider is affirmed under tipsy coachman doctrine because affidavit is conclusory, is based on unauthenticated and unattached documents, and conflicts with report of independent medical examination performed by same physician VACATED. Revised Opinion at FLWSUPP 1806MONT.]
UNITED AUTOMOBILE INSURANCE COMPANY, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o YANSI MONTESINO. Circuit Court, 11th Judicial Circuit (Appellate) Court of Miami-Dade County. Case No. 08-296 AP & 08-375 AP. L.T. Case No. 06-20039 CC 05. March 11, 2010. On Appeal from a decision rendered by the Miami Dade County Court. Hague, Andrew. Counsel: Thomas Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia Best, Lopez & Best, Miami, for Appellee.
(Before Caballero, Cohen, and Glazer, JJ. Judge Glazer did not participate in oral argument.)
(CABALLERO, J.) This is an appeal from a summary judgment hearing involving the payment of Personal Injury Protection (PIP) benefits by United Automobile Insurance Company for services rendered from January 12, 2004 through March 25, 2004. The lower tribunal granted in part, and denied in part the part the Appellee/Plaintiff’s Motion for Summary judgment. The trial court granted payment of services provided to Plaintiff up to the IME suspension date.
In this particular case, the Appellee/Plaintiff filed a Motion for Summary Judgment as to the Reasonableness, Relation and Medical Necessity and the Appellant/Defendant filed in opposition to same an affidavit of Dr. Goldberg, along with his “peer review” and IME report. This court will not focus on whether the peer review filed by the doctor, Dr. Goldberg, in opposition to Plaintiff’s Motion for Summary Judgment is a valid report pursuant to F.S. 627.736(4)(b) since it was not obtained prior to the denial of the medical bills, since that issue has been decided by the Third DCA. However, this court must still consider if the evidence filed in opposition to the Plaintiff’s Motion for Summary Judgment is competent evidence.
A simple perusal of the Peer Review report that admits to not having records is conclusory. It does not authenticate or attach records referenced in the peer review. It does not show that Dr. Goldberg is an expert to be allowed to testify to reasonableness. This court finds that the trial court ruled correctly on tipsy coachman doctrine. In reviewing this case, it is clear that the Plaintiff met its prima facie burden and this was not challenged. Therefore, any grounds in the record to sustain the trial judge whose ruling comes clothed in a presumption of correctness should be sustained. This court is not affirming on the basis of either F.S. 627.736(4)(b)&(7)(a), but rather on the fact that the peer review affidavit does not meet the requirements of 1.510 so that there is no genuine issue of material fact raised by the defense. The case law as filed by the Appellee/Plaintiff support why tipsy coachman doctrine applies. The cases show that Appellee can always raise tipsy coachman if they meet their prima facie case and there are alternate grounds in the record to sustain the trial court’s decision. Clearly, the recent 3rd DCA opinions in Santa Fe in no way eviscerate the requirements of Rule 1.510.
In this particular case, the peer review filed by Dr. Goldberg does not create a question of fact. In Dr. Goldberg’s IME report, he opined that “My clinical evaluation reveals that further treatment would not be reasonable, related or necessary as it relates to the accident of 1/05/04.” The cutoff letter to the insured’s counsel stated the following:
On 02/17/04 the above noted client/patient was examined by Dr. DAVID B. GOLDBERG M.D. . The Independent Medical Examination (IME) physician has advised us that in his/her opinion, any further MEDICAL treatment would not be reasonable, related or medically necessary.
Please be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after 02/17/04.
It was not until December 27, 2004, nearly a year after Ms. Montesino was involved in the subject accident, and after all bills were long overdue, that United, for the first time, requested a “peer review”. As noted in the Peer Review Request, United requested that Dr. Goldberg be provided with the police report, medical bills, the EUO and the IME. Exactly one year after the date of the accident and nearly ten months after treatment concluded with Professional Medical, Dr. Goldberg performed the requested “peer review”. In reviewing Dr. Goldberg’s affidavit and report, it is clear that the “peer review” fails to meet the requirements of Rule 1.510 F.R.C.P. governing summary judgment, and also fails to meet the requirements of F.S. 627.736(7)(a) and is therefore not a valid report.
Dr. Goldberg’s “peer review” is conclusory and fails to contain a single factual basis for his conclusions. See Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3d DCA 1983) cited to by United Automobile Insurance Company v. Michael I. Rose M.D. a/a/o Velazquez, 11 Fla. L. Weekly Supp. 1042a (11th Circuit Appellate September 14, 2004).
The “peer review” reveals that it is not based upon competent summary judgment evidence but is based upon incomplete documentation, unattached and unauthenticated guidelines and unsupported conclusions. Before this Court can even look at whether there is a conflict between the “peer review” and the IME, it must first consider whether the peer review is competent evidence or not. This Court finds that the “peer review report” is not competent evidence, since it is conclusory, and therefore this Court affirms the trial court.
As an example of the conclusory nature of the “peer review”, as to the reasonableness of the charges, there is no evidence that Dr. Goldberg has any expertise or personal knowledge that allows him to testify to reasonableness of charges. His “peer review” report is completely devoid of any indication that he is competent to testify to reasonableness of the charges. In the “peer review”, Dr. Goldberg repeatedly claims that a bill is not RR&N because he does not have the records in his possession. He advises to deny payment because he does not have the documentation in his possession to review. He claims repeatedly that because he does not have office notes or documentation that a particular test has been performed, it translates into a service not being RR&N, claiming, by way of example that “Based upon the lack of documentation provided, these charges are not reasonable and should not be paid”. There is no indication that Dr. Goldberg ever requested additional documentation if he believed that he could not address the medical necessity, relatedness or reasonableness of a charge.
Furthermore, he bases his opinion on unauthenticated, and by his own admission, unattached documentation that has not been provided to him. His “peer review” therefore, cannot and does not constitute valid competent summary judgment evidence to preclude entry of the summary judgment.
Although this court finds that the peer review not be considered since it is conclusory, looking further into this matter, United should be bound and must be bound by the testimony of its own adjuster. Finally, the “peer review” conflicts with the testimony of the litigation adjuster, who is United’s representative by whose responses United is bound. In the deposition testimony of Serlo Methelier taken September 19, 2007 at page 33, lines 23-25; page 34, lines 1-9, the following questions were asked by the trial attorney and answered by Mr. Methelier:
QUESTION: Your counsel handed me here the IME report from Dr. David Goldberg, the actual IME, with the IME cutoff letter with March 1, 2004 cutoff.
ANSWER: That’s correct.
QUESTION: Looking at the IME cutoff written by Angela Kirkpatrick — says in the middle that United Automobile hereby suspends benefits under this licensing chapter for any services rendered after 2/17/04?
What does that mean? That United — does that mean that United will pay medical benefits up to 2/17/04?
ANSWER: That beyond that point United would be denying the claim.
It is clear from United’s litigation adjuster’s response that the IME cutoff letter confirms to the insured that all bills beyond the point of the cutoff in the letter would be denied. The insured is never advised that the bills prior to the IME cutoff letter are being denied.
For the reasons stated above and based on the tipsy coachmen doctrine, this court affirms the lower court.
Attorney’s fees are hereby awarded to the Appellee. (GLAZER, J. concurs. COHEN, J., dissents with written opinion.)
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(COHEN, J. dissenting.) I respectfully dissent for the reasons articulated in United Automobile Insurance Company v. C.M. Medical Center, Inc., A/A/0 Myra Carle, Appellate Case No.: 08-519AP.
I agree that a party met with a Motion for Summary Judgment should not be permitted to defeat the summary judgment with a subsequent affidavit submitted by himself/itself or by another which “baldly” repudiates previous testimony or affidavits of that same party. Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). See also, Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA 1994); Arnold v. Dollar General Corporation, 632 So. 2d 1144 (Fla. 5th DCA 1994); Kopacz v. Jack Eckerd Corporation, 542 So. 2d 469 (Fla. 5th DCA 1989); Willage v. Law Offices of Wallace and Breslow, PA., 415 So. 2d 767 (Fla. 3d DCA 1982). Nonetheless, where a party offers a credible explanation for the discrepancy, or where the court can not find that the discrepancy is “blatantly” and “baldly” contradictory, then summary judgment should not be granted. Arnold v. Dollar General Corporation, 632 So. 2d at 1145. When a subsequent affidavit or testimony “at least arguably” supplements a prior affidavit or testimony, a court should refrain from granting summary judgment. Bell v. Bailey, 639 So. 2d at 1064.
In this case United has provided an arguably credible explanation for the seeming discrepancy between Dr. Goldberg’s IME and Peer Review Report affidavits. The fact that Dr. Goldberg performed both the IME and the Peer Review is not determinative of the issue. The doctor’s two affidavits are not blatantly and baldly contradictory. United argues that the IME serves to evaluate the insured’s physical condition at a particular point in time, i.e., when the physical examination is conducted by the doctor. In contrast, a Peer Review Report is broader in scope and prepared after all of the medical records for the entire course of the insured’s treatment have been reviewed. Accordingly, the Peer Review Report broadens the basic analysis provided by the IME based on data obtained in the course of reviewing all treatment records.
In sum, the Peer Review Report served to supplement the IME with its corresponding evidence, not contradict it. See Bell v. Bailey, 639 So. 2d at 1064. And, Dr. Goldberg made no attempt in his Peer Review Report/Affidavit to repudiate his prior sworn testimony. Accordingly, I find that the trial court mistakenly failed to consider the Peer Review Report/Affidavit submitted by Appellant United to defend against the summary judgment motion seeking to enforce the payment of PIP benefits. The affidavit of Dr. Goldberg should have been considered adequate to create a material issue of fact to be submitted to the jury.
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[Editor’s note: Order on Attorney’s fees and costs, entered February 18, 2010.]
The Appellee’s Motion to Tax Attorney’s Fees and Costs is hereby:
Granted. The case is remanded to the lower court to determine the amount of a reasonable fee. (JERI B. COHEN, MINDY SUE GLAZER, and MARCIA B. CABALLERO, JJ. CONCUR.)
