18 Fla. L. Weekly Supp. 493b
Online Reference: FLWSUPP 1805PINO
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review report offered in opposition to motion for summary judgment on issue of reasonableness, relatedness and medical necessity of treatment is not admissible under business records exception to hearsay rule — Even if peer review report were admissible, conclusions therein are insufficient to create genuine issue of material fact precluding summary judgment — Because peer review report is inadmissible, so is physician’s affidavit that incorporates inadmissible peer review as factual basis — Physician’s amended affidavit is also inadmissible where amended affidavit contains impermissible, unexplained material change in sworn testimony and departure from original peer review
HYMA MEDICAL CENTER, INC. as assignee of JORGE PINO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-4918 CC 05 08. October 14, 2010. Honorable Wendell M. Graham, Judge. Counsel: Jabari Prempeh, II, Ayala Prempeh, LLP, Miami, for Plaintiff. James P. Murphy, Green, Murphy & Murphy, P.A., Fort Lauderdale, for Defendant.
AFFIRMED. 20 Fla. L. Weekly Supp. 120a
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT RE: REASONABLENESS, RELATEDNESSAND MEDICAL NECESSITY
THIS CAUSE came before the Court on June 1, 2010, after due notice to the parties, on Plaintiff, HYMA MEDICAL CENTER, INC., a/a/o SADYS LOPEZ’s Motion for Summary Judgment, and this Court having heard argument of counsel and being otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED that:
1. It appearing there is no genuine issue of material fact, Plaintiff is entitled to summary judgment regarding the reasonableness, relatedness and medical necessity of the treatment at issue, as a matter of law.
2. This Court hereby finds that Plaintiff has met its burden of demonstrating the non-existence of any genuine issue of material fact regarding the reasonableness, relatedness and medical necessity of the treatment at issue in this matter. This finding is in keeping the previous trial court’s decision on this matter, which remains unaffected by the narrow issue(s) argued and decided by Defendant’s previous appeal. See, United Automobile Ins. Co. v. Professional Medical Group, Inc., a/a/o Yansi Montesino, 17 Fla. L. Weekly Supp. 520a (Fla. 11th Cir. App., 2010); State Farm v. HYMA Medical Center a/a/o/ Sadys Lopez, 22 So.3d 699 (Fla. 3rd DCA, 2009) [34 Fla. L. Weekly D2305a].
3. Defendant’s objections to Plaintiff’s affidavits of Dr. Stuart Sherman and Mr. Arturo Martinez are without merit. Said affidavits are in compliance with Florida Rule of Civil Procedure 1.510(e).
4. Binding law requires this Court to decline to consider Dr. Gentile’s peer review report as it is inadmissible as evidence pursuant to Fla. Stat. 90.803(6). See, McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA, 2000); Eric Friedman D.C. a/a/o Nemours Jean Baptiste v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp 100a (Fla. 11th Cir., 2008). See also,Fla. Stat. 90.801 (relevance); Fla. Stat. 90.804 (more prejudicial that probative).
5. Even if Dr. Gentile’s peer review report was admissible as evidence, his conclusions therein are insufficient to create a factual issue precluding summary judgment. See, United Automobile Ins. Co. v. Professional Medical Group, Inc., a/a/o Yansi Montesino, 17 Fla. L. Weekly Supp. 520a (Fla. 11th Cir. App., 2010).
6. Where this Court has found that Defendant’s peer review is inadmissible, so too is any affidavit of Dr. John J. Gentile which incorporates the inadmissible peer review as its factual basis. See, Fla. R. Civ. P. 1.510(e); Padavano, Florida Civil Practice § 13.2 (2006 Edition), citing to; D. Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA, 1986); Bifulco v. State Farm, 693 So.2d 707 (Fla. 4th DCA, 1997) [22 Fla. L. Weekly D1325a].
7. Dr. Gentile’s amended affidavit is equally inadmissible. See, Bruce J. Berman, Florida Civil Procedure § 501.7 at 630 (2003 ed.) citing, Ellison v. Anderson, 74 So.2d 680, 681 (Fla., 1954) See also, Ellison v. Goodman, 395 So.2d 1201, 1202 (Fla. 3rd DCA, 1981). This Court finds that Dr. Gentile’s changing of the one word, “documented,” in his original affidavit to “rendered,” in his amended affidavit represents an impermissible, unexplained, material change in his sworn testimony, and an unsupportable departure from the expert opinion contained in his attached peer review. Therefore this Court must decline to consider it in opposition to Plaintiff’s Motion for Final Summary Judgment. See, Brooks v. Serrano, 209 So.2d 279 (Fla. 4th DCA, 1968); Holl v. Talcott, 191 So.2d 40 (Fla., 1966). This finding is also in keeping with the prior trial court’s order dated June 13, 2007. For the same reasons, this Court must decline to grant Defendant’s Motion for Leave to file a third affidavit of Dr. Gentile.
8. Defendant’s opposition to this Court’s consideration of Plaintiff’s objections to the admission of Dr. Gentile’s peer review report and affidavits is unfounded. Specifically, Defendant suggests that the 3rd DCA’s decision in State Farm, supra., to reject HYMA’s “right for the wrong reason” analysis, necessarily means that the appellate Court reviewed all of Defendant’s affidavits in detail and determined their validity and sufficiency. Such assumptions are neither supported by the Third DCA’s opinion, nor the record.
