18 Fla. L. Weekly Supp. 500a
Online Reference: FLWSUPP 1806LOPE
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No abuse of discretion in denying admission of peer review affidavit which was submitted after summary judgment had been entered in favor of provider and which sought to cure “technical deficiency” in initial affidavit, which stated that “chiropractic treatment” was no longer reasonable, related, or medically necessary, although claim was one for medical treatment — No error in entering summary judgment in favor of provider where insurer did not present any countervailing evidence relating to claim for medical treatment — Discovery — Depositions — Trial court erred in awarding expert witness fees to treating physician for deposition testimony
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FLORIDA INSTITUTE FOR PAIN, INC., A/A/O RAUL LOPEZ-PADILLA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-053 AP. L.C. Case No. 07-5086 CC 25. March 11, 2011. On appeal from the County Court for Miami-Dade County, Andrew S. Hague, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, Trial Division, for Appellant. Chelin V. Sampedro, Chelin V. Sampedro, P.A., and Jose R. Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before RODRIGUEZ, and SOTO, JJ.)
(PER CURIAM.) Appellant United Automobile Insurance Company (“United Auto”) brings this appeal to reverse a final judgment based upon the trial court’s grant of a motion for summary judgment in favor of Appellee Florida Institute for Pain, Inc., (“Florida Institute for Pain”) assignee for Raul Lopez-Padilla (“Mr. Lopez-Padilla”).1 The Court has jurisdiction pursuant to the Florida Rules of Appellate Procedure 9.030(c)(1)(A).
On April 15, 2006, Mr. Lopez-Padilla was involved in an automobile accident, wherein he sustained injuries to his neck and back. From April 26, 2006 through August 16, 2006, Mr. Lopez-Padilla sought and received treatment for his injuries at Florida Institute for Pain. He assigned his rights to receive payment for treatment to Florida Institute for Pain. After Florida Institute for Pain’s demand for payment from United Auto went unanswered, it filed a complaint in county court.
In its answer and affirmative defenses, United Auto denied that the medical bills at issue were reasonable, related, or necessary. United Auto alleged that all further treatment after May 17, 2006 was not reasonable, related, or necessary based upon an independent medical examination performed by Dr. George Rovito, M.D. Dr. Rovito also performed a peer review of Mr. Lopez-Padilla. Thereafter, Florida Institute for Pain filed a Motion for Summary Judgment as to the reasonableness, relatedness, and necessity of the bills.
In response to Florida Institute for Pain’s Motion for Summary Judgment, United Auto provided a peer review affidavit from Dr. Rovito and the deposition testimony of Dr. Marianela de la Portilla, M.D., Mr. Lopez-Padilla’s treating physician.2 Dr. Rovito’s peer review affidavit stated in part that “[b]ased upon my independent medical examination, it is my professional opinion, that no further chiropractic treatment subsequent to May 17, 2006 is reasonable, related or medically necessary as it related to the motor vehicle accident on 4/15/06. RAUL LOPEZ-PADILLA had reached a medical end result.” (emphasis supplied, capitalization in original).
The trial court held a hearing on Florida Institute for Pain’s Motion for Summary Judgment. The bills at issue were medical bills. However, Dr. Rovito’s affidavit referred to “chiropractic treatment” instead of medical treatment. At the hearing, United Auto averred that there was a typographical error in Dr. Rovito’s affidavit. The trial court determined that the use of the term “chiropractic treatment” was not merely a typographical error. As such, the trial court struck United Auto’s affidavit, and granted Florida Institute for Pain’s Motion for Summary Judgment.
Thereafter, Florida Institute for Pain moved for Final Judgment. United Auto filed an Emergency Motion for Relief from the Order of Court Dated January 7, 2009 Granting Summary Judgment and/or in the Alternative, a Motion for a Rehearing on the Plaintiff’s Motion for Summary Judgment. United Auto submitted another affidavit from Dr. Rovito, which purportedly was executed on January 12, 2009 and filed with the clerk’s office on January 14, 2009.3 The trial court determined that United Auto could not create a genuine issue of material fact by filing a supplemental affidavit that conflicted with the initial affidavit. The trial court entered a Final Judgment in favor of Florida Institute for Pain, and United Auto filed an appeal.
United Auto asserts two grounds as the basis of its appeal: (1) the trial court erred in granting summary judgment as to reasonableness, relatedness, and necessity in favor of Florida Institute for Pain where United Auto should have been permitted to cure a “technical deficiency” in an affidavit, and (2) the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of the treating physician. We affirm the trial court’s grant of summary judgment in favor of Florida Institute for Pain, but reverse with regard to the award of expert witness fees to the treating physician.
As to the first issue,4 the trial court denied the admission of Dr. Rovito’s second affidavit, and denied United Auto’s motion for continuance. We review the trial court’s denial of the admission of the new affidavit under an abuse of discretion standard. Heath v. State, 648 So. 2d 660, 664-65 (Fla. 1994) (“[t]he trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.”) (citation omitted). We do not find that the trial court abused its discretion in excluding the second affidavit by Dr. Rovito. The trial court was correct in ruling that Dr. Rovito’s second affidavit could not be considered because it was untimely. See Coffman Realty, Inc. v. Tosohatchee Game Pres., Inc., 381 So. 2d 1164, 1167 (Fla. 5th DCA 1980). Also, the record reflects that United Automobile did not present countervailing evidence since the initial affidavit referred to chiropractic treatment and the issue at hand related to medical bills.5 Thus, we affirm the trial court’s grant of summary judgment in favor of Florida Institute for Pain.
As to the second issue, we find merit in United Auto’s contention that the trial court erred in granting expert witness fees to Dr. de la Portilla, the treating physician. “Treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well.” United Auto. Ins. Co. v. Comprehensive Health Ctr., Inc., a/a/o Erla Telusnor, 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Cir. Ct. Oct. 21, 2009); see also United Auto. Ins. Co. v. Dade Injury Rehab Ctr., Inc., a/a/o Denis Diaz-Matamoro, 17 Fla. L. Weekly Supp. 82a (Fla. 11th Cir. Ct. Dec. 23, 2009) (holding that “the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of the treating physician.”); Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a] (noting that “treating physicians are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make their patients well”); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 291 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a] (injured motorist’s treating physicians should not have been classified as expert witnesses, but as ordinary fact witnesses); Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (noting that a treating doctor does not acquire his expert knowledge for the purpose of litigation but rather in the course of making his patient well). In the instant case, the trial court erred in awarding expert witness fees for deposing the treating physician. We therefore reverse the award of expert witness fees to Dr. de la Portilla.
Affirmed in part, reversed in part, and remanded.
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1Oral arguments were held before Judges Pineiro, Rodriguez, and Soto. Judge Pineiro, the presiding judge, passed away prior to the issuance of the opinion.
2United Auto sought to depose Dr. de la Portilla. Florida Institute for Pain filed a Motion for Protective Order, seeking an expert witness fee to be paid to Dr. de la Portilla. United Auto filed a Notice of Objection to the award of an expert witness fee to Dr. de la Portilla, on the grounds that she was Mr. Lopez-Padilla’s “treating physician and a fact witness.” The trial court granted Florida Institute for Pain’s Motion for Protective Order, and adjudged that the doctor would be paid $350 an hour for her deposition.
3Dr. Rovito’s second affidavit provides in part that “[t]his sentence with the word ‘chiropractic treatment’ was a clerical or administrative mistake. I intended to sign an affidavit on August 12, 2008 that intended to base its opinion upon my training, experience and licensure as a medical doctor. The first sentence of paragraph 4 should have said: ‘based upon my independent medical examination, it is my professional opinion that no further medical treatment subsequent to May 17, 2006 is reasonable, related or medically necessary as it relates to the motor vehicle accident on April 15, 2006. Raul Lopez Padilla had reached a medical end result.’ I used the words ‘reached a medical end result’ because I am a medical doctor and I am giving a medical opinion.”
4As to the first issue, Florida Institute for Pain concedes in its answer brief that “the trial court’s reasoning with regards to the inadmissibility of the peer review report” has been reversed by United Auto. Ins. Co. v. Eduardo Garrido, a/a/o Joseph Alarcon, 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b], and United Auto. Ins. Co. v. Santa Fe Medical Ctr., a/a/o Telmo Lopez, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. However, the record reflects that there is an alternative basis to justify the trial court’s decision. Under the tipsy coachman doctrine, an appellate court can affirm a decision of the lower court as long as there is a basis to justify affirming the decision. Malu v. Sec. Nat’l Ins. Co., 898 So. 2d 69, 73 (Fla. 2005) [30 Fla. L. Weekly S172d]; Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) [27 Fla. L. Weekly S829a].
5The change in language in Dr. Rovito’s second affidavit from “chiropractic treatment” to “medical treatment” amounted to more than a mere correction of a typographical error. See Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069, 1070 (Fla. 3d DCA 1977) (“[a] party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”).
