18 Fla. L. Weekly Supp. 1195c
Online Reference: FLWSUPP 1811ALAV
Insurance — Personal injury protection — Coverage — Medical expenses — Partial summary judgment is entered in favor of medical provider where treating physician’s affidavit met burden to demonstrate that treatment and charge were reasonable, related and necessary and insurer did not file anything to controvert affidavit — No merit to claim that insured’s non-attendance at independent medical examinations prevented insurer from rebutting provider’s affidavit and, therefore, precludes summary judgment where insurer could have obtained expert’s review of records of treating physician without conducting examination of insured
STEVEN R. CANTOR D.C., P.A. D/B/A PALM BEACH PAIN & REHABILITATION, a Florida Corporation (assignee of Alavena, Juan), Plaintiff, v. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2008 CC 012261 XXXXSB RD. August 23, 2011. Reginald R. Corlew, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO ACCIDENT,REASONABLENESS OF CHARGES, MEDICALNECESSITY OF SERVICES, WHETHER INJURIES WERERELATED TO ACCIDENT, AND PRICING OF SERVICES
This cause having come before this court for hearing on September 17, 2010 on Plaintiff’s Motion For Partial Summary Judgment As To Accident, Reasonableness Of Charges, Medical Necessity Of Services, Whether Injuries Were Related To Accident, And Pricing Of Services and the court, having reviewed the file, motion, and having heard argument of counsel, it is hereby ordered and adjudged:
Factual Background: This is a P.I.P. case. Plaintiff moves for partial summary judgment as to accident, reasonableness of charges, medical necessity of services, whether injuries were related to accident, and pricing of services. Plaintiff filed the affidavit of the treating physician in support of its motion. Defendant did not file any countervailing evidence in opposition to the Plaintiff’s motion but argued that due to the patient’s non-attendance to two independent medical examinations (hereafter “IMEs”) scheduled by the Defendant, it could not rebut the Plaintiff’s motion and, therefore, summary judgment was precluded.
Conclusions of Law: The affidavit of the medical provider stating that the care given to the patient was reasonable, related, and necessary is enough for Plaintiff to meet its burden of proof as to this element of the claim. United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Jud. Cir. 2004).
Where the moving party offers evidence to support its claim of the nonexistence of a genuine issue of material fact, the nonmoving party “must demonstrate the existence of such an issue or issues either by countervailing facts or justifiable inferences from the facts presented.” Carbonell v. Bell South Telecommun., 675 So. 2d 705 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c].
The Court finds that the Plaintiff in this case has met its burden of proof on summary judgment to demonstrate that the treatment and charge were reasonable, related and necessary by virtue of the affidavit of the patient’s treating physician filed in support of the motion and that Defendant has not met its burden to demonstrate a fact question as it has not filed anything, to controvert the affidavit of the treating physician.
The Court further disagrees with the Defendant’s position that summary judgment in favor of Plaintiff is precluded because of the patient’s non-attendance at two IME’s as case law is well settled that a report challenging the reasonableness, relatedness, and medical necessity of the treatment and charges on summary judgment “does not have to be predicated on either a physical examination by the reporting physician or on a physical examination conducted on behalf of the insurer (an IME) but may be premised on review of the records of the insured’s treating physician.” Partners in Health Chiropractic v. United Automobile Insurance Co., 21 So.3d 858 (Fla. 3rd DCA 2009) [34 Fla. L. Weekly D2177a]; United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 So.3d 897 (Fla. 3rd DCA 2009) [34 Fla. L. Weekly D1516a]; United Automobile Insurance Co. v. Comprehensive Health Center, LLC, 26 So.3d 49 (Fla. 3rd DCA 2009) [35 Fla. L. Weekly D51b]; United Auto. Ins. Co. v. Hollywood Injury Rehab Ctr., 27 So.3d 743, 744 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D334a]; United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a], receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly D2051b (Fla. 3d DCA Oct. 7, 2009) (en banc); Cent. Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire & Cas. Ins. Co., 22 So.3d 782, 783 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2396a]; see also United Automobile Insurance Co. v. Millenium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-47 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c] (holding that the insurer may challenge the reasonableness, relatedness, and medical necessity of the treatment and charges on summary judgment at any time).
In other words, the Defendant in this case had every opportunity to obtain an expert’s review of the medical records to oppose summary judgment (despite the patient’s failure to attend the IME’s) but failed to so.
As Plaintiff has met its burden of proof on summary judgment and the Defendant has failed to rebut same, there is no question of material fact regarding the relatedness, reasonableness and medical necessity of the treatment and charges at issue and the Plaintiff is entitled to summary judgment.
