18 Fla. L. Weekly Supp. 340a
Online Reference: FLWSUPP 1804ORTI
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Abuse of discretion to exclude affidavit and peer review report filed by insurer in opposition to partial summary judgment on ground that expert’s opinion was not based on independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. INJURY PAIN RELEASE CENTER, INC. a/a/o LESLIE ORTIZ-REYES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-316 AP. L.T. Case No. 07-22891 CC 05. February 10, 2011. An Appeal from a decision rendered by the Miami-Dade County Court, Teretha Lundy Thomas, J. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellant. Michael J. Neimand and Lara Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before FARINA, BAGLEY, and DRESNICK, JJ.)
(PER CURIAM.) This is an appeal from a summary judgment entered in favor of Appellee Injury Pain Release Center (“Injury Pain Release”). Injury Pain Release, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. United Auto argues a single issue on appeal and maintains the trial court erred with respect to this issue.
On June 25, 2007, Leslie Ortiz-Reyes (“Ortiz”) was involved in a motor vehicle accident and subsequently thereafter sought treatment with chiropractic physician William A. Hall, D.C. (“Dr. Hall”). Ortiz executed an assignment of benefits, assigning her rights to pursue any PIP claims for Dr. Hall’s treatment to Injury Pain Release. On October 18, 2007, United’s expert physician Brad I. Simon, D.C. (“Dr. Simon”), performed a peer review evaluation of Injury Pain Release’s records, and determined that certain charges were not customary, and that certain procedures were not reasonable, related, and necessary. Pursuant to its assignment of benefits, and based on nonpayment of the bills, Injury Pain Release filed suit against United on December 26, 2007.
The issue on appeal is the trial court’s grant of Injury Pain Release’s motion to strike Dr. Simon’s peer review. On May 19, 2008, Injury Pain Release filed a motion for partial summary judgment as to the reasonableness, relatedness, and necessity (“RRN”) of the treatment rendered by Dr. Hall. Injury Pain Release filed the supporting affidavit of Dr. Hall on the same date, establishing the bills and reports as his records, and additionally establishing his qualifications and medical expertise. Dr. Hall described the statements and information given to him about Ortiz’s accident for the purpose of medical diagnosis, the examinations he conducted on Ortiz, and her treatment. Dr. Hall’s affidavit concluded that the treatment and bills were RRN as related to the injuries Ortiz sustained in the accident.
United replied to Injury Pain Release’s partial summary judgment motion by filing the affidavit of Dr. Simon on August 13, 2008, and an amended version of it on October 14, 2008. Dr. Simon’s affidavit contained his qualifications and medical expertise, and referred to his review of the medical records pertaining to Ortiz’s treatment and bills. In response, Injury Pain Release filed a motion to strike Dr. Simon’s peer review on October 14, 2008. In the motion, Injury Pain Release argued that based on United Automobile Insurance Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a] that the peer review was not a “valid report,” because it was not supported by a physical examination of the insured by the physician preparing the report, or another physician’s examination.
The trial court conducted its hearing on June 5, 2009. The trial court granted Injury Pain Release’s motion to strike Dr. Simon’s peer review, but United has not produced the transcript of the hearing. However, the trial court reduced its findings to writing, in an order dated June 8, 2009. The trial court based its rulings on Bermudez, as well as the circuit court opinion of United Automobile Insurance Co. v. Metro Injury and Rehab a/a/o Magda Davis, 16 Fla. L. Weekly Supp. 22a (Fla. 11th Cir. Ct., Nov. 13, 2008). In striking the opinion of United’s expert Dr. Simon, the trial court found that “[t]he peer review performed by Dr. Simon does not constitute a ‘valid report’ pursuant to 627.736(7)(a), Florida Statute (2005) because it was neither based upon, nor factually supported by, an examination by Dr. Simon or on any physician selected by United Automobile Insurance Company to perform a compulsory examination.”
This Court will review the record to determine whether the trial court abused its discretion in excluding the affidavit and peer review of Dr. Simon. Davis v. Caterpillar, Inc., 787 So. 2d 894, 899 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1141b]; Hosbein v. Silverstein, 358 So. 2d 43 (Fla. 4th DCA 1978) (reviewing for abuse of discretion, the trial court’s exclusion of expert witness testimony). In the absence of a hearing transcript, our review is limited to determining whether there are any legal errors which appear on the face of the trial court’s order. Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]; Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D711a]; Katowitz v. Katowitz, 684 So. 2d 256, 257 n.1 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D2558b].
The Third District Court of Appeal has receded from the portion of its holding in Bermudez concerning the mandatory application of section 627.736(7)(a) to denial or partial reduction cases. United Auto. Ins. Co. v. Santa Fe Medical Ctr., 21 So. 3d 60, 67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. The district court acknowledged that “in an en banc decision [it] receded” from the “language in Bermudez”requiring “a 627.736(7)(a) report as a condition precedent to either the complete denial or partial reduction of an insured’s bills or claims.” Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So. 3d 858, 862-63 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a] (finding that a denial or partial reduction is based on section 627.736(4)(b)).1
More importantly, the Third District also reversed the decision of the Metro Injury Court relied on by the trial court. United Auto. Ins. Co. v. Metro Injury & Rehab Ctr. a/a/o Magda Davis, 16 So. 3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a]. The district court specifically held:
[w]e follow our prior holding in Bermudez, and hold that, in order to constitute a “valid report” under section 627.736(7)(a), the physician who issues the report must be a physician who examines the insured or, excluding the treating physician, a physician who reviews the examination and treatment records of the insured. The reporting physician does not have to have personally conducted a physical examination of the insured. We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, an IME had been performed, Bermudez does not stand for the proposition that an IME is required in order for a report to be a “valid report.”
Id. at 900.
We reverse on the authority of the district court’s decision in Metro Injury, finding that the trial court abused its discretion in striking Dr. Simon’s peer review and affidavit.2
We reverse the order on the motion to strike Dr. Simon’s peer review. As a result, we also reverse the partial summary judgment as to the issue of RRN. For these reasons, the order granting final judgment in favor of Appellee is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
Because Injury Pain Release is not the prevailing party on appeal, Injury Pain Release’s motion for appellate attorney’s fees is denied.
REVERSED AND REMANDED.
__________________
1No payments were made to Injury Pain Release during the time Ortiz treated with Dr. Hall.
2“[A] section 627.736(7)(a) report . . . may be premised on review of the records of the insured’s treating physician.” Partners in Health Chiropractic, 21 So. 3d at 864.
