18 Fla. L. Weekly Supp. 336b
Online Reference: FLWSUPP 1804APPL Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Evidence — Error to exclude affidavits of insurer’s non-physician expert regarding correctness of CPT code on claim forms — PIP statute does not require that insurer refute medical provider’s CPT code determination with physician’s affidavit — However, summary judgments in favor of provider are affirmed, as opposing affidavits asserting that provider’s documentation is deficient but offering nothing to attack claim that provider performed CPT code create no material issue of disputed fact
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. APPLE MEDICAL CENTER, LLC, a/a/o Jean Pierre Francoise, Deborah Clarke and Miriam Y. Cruz, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-226 AP, (Consolidated) 09-227 AP, 09-228 AP. L.T. Case Nos. 08-03096 SP 05, 08-03095 SP 05, 08-03094 SP 05. February 10, 2011. An appeal from a Final Judgment by the County Court in and for Miami-Dade County. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Mark J. Feldman, Mark J. Feldman, P.A., for Appellee.
[Related opinion at 17 Fla. L. Weekly Supp. 1057a.]
OPINION
(Before FREEMAN, FERNANDEZ and MILLER, JJ.)
(PER CURIAM.) This Court considers the appeal of three consolidated cases. In each case, the trial court granted summary judgment for Apple Medical after refusing to consider the counter-affidavit of United Automobile’s expert witness. United appeals to this Court on the ground that the trial court judge errantly refused to consider the material affidavit of its expert. We disagree and affirm.
This Court begins its analysis by looking to the very similar case of United Automobile Insurance Co. v. Apple Medical Center, a/a/o Dexter Jones, Case No. 09-268 AP (Fla. 11th Cir. Ct. Sept. 22, 2010). That case involved the same provider, insurer, and disputed affidavit of expert witness Bonaparte. Therein, the court found that section 627.736(5)(a), Florida Statues, does not require the insurer to refute a licensed physician’s CPT code determination with a physician’s affidavit. Accordingly, the court found it was error to exclude the Bonaparte affidavit on the ground that she was not a licensed physician. Having found the affidavit admissible, the Jones court inquired if it raised an issue of material factual dispute.
In the instant case, we reject United’s contention that Bonaparte’s affidavit creates a material issue of disputed fact. We reach this conclusion by looking first to the affidavits provided by the physician providers of Apple Medical. In each, the physician affirms he conducted a CPT code 99244. United Auto disputes each and contends that Bonaparte’s affidavit provides a sound, material basis for doing so.
Current Procedural Terminology (CPT) was ably described by the United States District Court for the North District of Georgia in Neotonus, Inc. v. American Medical Ass’n., 554 F.Supp.2d 1368, 1370-71 (N.D. Ga. 2007). Writing at length the Court observed:
Since 1966, the AMA has annually published a work of clinical nomenclature entitled “Current Procedural Terminology” (“CPT”). The purpose of the CPT is to provide a uniform terminology that accurately describes specific medical, surgical, and diagnostic services and procedures to facilitate efficient health care record keeping, information sharing, and efficient processing of claims for payment for services or procedures provided to patients. CPT has been adopted by both public and private health insurance programs . . . as the method by which physicians report the services and procedures they provide.
Neotonus, 554 F.Supp.2d at 1370; See Dubin Orthopaedic Center, P.S.C. v. Com., State Bd. of Physical Therapy, 294 S.W.3d 421, 422-23 (Ky. 2009); Neighborhood Health P’ship, Inc. v. Fischer, 913 So. 2d 703, 704 (Fla. 3d DCA 2005) [30 Fla .L. Weekly D2449b].
The April 2009 American Medical Association article “CPT Category III Codes: The First 10 Years” states in pertinent part:
Category I CPT codes describe a procedure or service identified with a five-digit numeric CPT code and descriptor nomenclature based on the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. Additionally, the Editorial Panel requires that all of the following be met:
· the service or procedure has received approval from the FDA for the specific use of devices or drugs (provided FDA approval would be required);
· the suggested procedure or service is a distinct service performed by many physicians or practitioners across the United States;
· the clinical efficacy of the service or procedure is well established and documented in US peer-reviewed literature;
· the suggested service or procedure is neither a fragmentation of an existing procedure or service, nor currently reportable by one or more existing codes; and
· the suggested service or procedure is not requested as a means to report extraordinary circumstances related to the performance of procedures or services that already have a specific CPT code.
CPT Category III Codes: The First 10 Years, American Medical Association, (2009) https://web.archive.org/web/20101117032333/http://www.ama-assn.org:80/ama1/pub/upload/mm/362/cat3-codes-first-10-yrs.pdf
With foregoing in mind (and turning to the matter in dispute), United contends that Apple Medical errantly employed the CPT code 99244 in its affidavit. As noted, use of CPT codes simply describes enumerated medical services. Hence, an affirmation that one performed a specific code number is an assertion that the services described by the code were provided and that they were necessary.
Returning to Jones, the court specifically cited to the deposition of the examining physician who testified he felt “the code was warranted based on the nature of the history and the areas of complaint and the time it takes me to evaluate it and to determine that there’s nothing serious going on here, so, you know, it’s a judgment call.” Such testimony stands contrary to the conclusion that the examining physician had, in fact, provided the described services. In Jones, the equivocal nature of the doctor’s deposition made relevant the testimony of an expert on the ‘justified’ use of a code 99244. Such facts are absent in the case before this Court.
In the instant case, United Auto presents nothing which attacks the basic proposition that the physician-provider performed a CPT code 99244. To whatever extent contrary evidence exists, United has failed to cite it. An examination of the disputed affidavit shows it contains little more than conclusory statements and creates no disputed issues of fact. See Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (expert’s conclusory affidavit creates no issue of material fact). The bald assertion that that the physician provider’s documentation is ‘deficient’ comes without citation to law, regulation or rule. Despite every indulgence on our part, the affidavit creates no material issue of disputed fact.
Based upon the foregoing, we AFFIRM.
