19 Fla. L. Weekly Supp. 487b
Online Reference: FLWSUPP 1906CAMBInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Summary judgment — Medical provider’s motion for final summary judgment is granted where affidavit of treating physician is sufficient to demonstrate absence of any genuine issue of material fact as to reasonableness, relatedness and medical necessity of treatment and reasonableness of charges, and opposing affidavit of peer review physician does not render opinion as to reasonableness, relatedness or necessity of treatment or reasonableness of charges for dates of service at issue — Peer review affidavit is technically deficient where affidavit is not made on personal knowledge, affiant would not be able to set forth information in manner admissible in evidence, and affiant cannot show that he would be competent to testify on issue of reasonableness, relatedness and necessity of treatment
DR. KIM REDDICK, DC PA D/B/A COMPLETE WELLNESS CENTER OF ORANGE CITY, as assignee of Patricia Camblin, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit, in and for Volusia County. Case No. 2009 11928 CODL. February 20, 2012. Honorable Bryan A. Feigenbaum, Judge. Counsel: Wendelyn L. Gowen, Bradford Cederberg, P.A., Orlando, for Plaintiff. Matthew Corker, Conroy, Simberg, Ganon, et al, Orlando, for Defendant.
ORDER AND FINAL JUDGMENT ORDERGRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment, and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, finds and holds as follows:I.
FACTUAL BACKGROUND
The Plaintiff moves for Final Summary Judgment with respect to its claim for breach of contract against STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (hereinafter “STATE FARM”) as the treatment provided by Plaintiff was reasonable, related and medically necessary and the charges were reasonable. STATE FARM’ s insured was involved in a motor vehicle accident on April 13, 2006 and thereafter sought treatment from the Plaintiff STATE FARM paid for treatment rendered by the Plaintiff from May 9, 2006 through July 17, 2008. Then, while Ms. Camblin was treating with the Plaintiff, STATE FARM requested Ms. Camblin to be seen by Dr. Gary Weiss, D.C. for an Independent Medical Evaluation (hereinafter “IME”). At the conclusion of the IME Dr. Weiss opined that Ms. Camblin had reached an end point as to any further future expected positive benefits from continued care within his specialty. Dr. Weiss advised that in his opinion, any further diagnostic testing, massage therapy, or chiropractic care would not be reasonable, related or necessary from the accident at issue. Thus, on July 22, 2008, STATE FARM mailed a letter to Ms. Camblin advising that her chiropractic benefits, physical therapy and lost wages would be terminated after July 27, 2008. Ms. Camblin continued to treat with the Plaintiff and when her bills for dates of service July 31, 2008 through July 1, 2009 were not paid, the Plaintiff mailed STATE FARM a Notice of Intent to Initiate Litigation. In response to the Notice, STATE FARM advised that Ms. Camblin’s chiropractic benefits were terminated as of July 27, 2008 and therefore no payment would be made towards the dates of service at issue.
On October 7, 2009, the Plaintiff served the Complaint in this matter, wherein the Plaintiff is seeking payment of $1,036.48 plus the applicable interest for dates of service July 31, 2008 through July 1, 2009. During the litigation of this matter, on August 22, 2011, Plaintiff’s counsel advised Defense counsel that Dr. Weiss had passed. Thus in October of 2011, the Defendant properly obtained a Peer Review from Dr. Gene Jenkins. However, the Defendant failed to provide or file the Peer Review until it was hand-delivered to Plaintiff’s counsel on January 17, 2012, which was only three days before the hearing on Plaintiff’s Motion for Final Summary Judgment. The Court notes that Plaintiff’s Motion for Final Summary Judgment was filed with the Court on December 1, 2011, along with Plaintiff’s Notice of Filing Affidavit of Kim Reddick, D.C. in Support of Plaintiff’s Motion for Final Summary Judgment with the Affidavit of Kim Reddick, D.C. attached. Plaintiff’s Motion for Final Summary Judgment was scheduled to be heard by the Court on January 20, 2012.
The Affidavit [of] Gene Jenkins, Jr., D.C. was an 11-page, single-spaced document that attached 392 pages. The Peer Review was performed in October 2011, but again not provided until days before the hearing on Plaintiff’s Motion for Final Summary Judgment. The Peer Review consisted of 11-pages, wherein the 1st page discussed the documents reviewed, pages 2, 3, 4, and 5 did not discuss dates of service at issue, pages 6, 7, 8 and 9 had only short statements as to the dates of service at issue, wherein the remainder of those pages concerned dates of service that are not at issue, the 10th page set forth Dr. Jenkins conclusion that being that the records fell below the minimal record keeping requirements and the 11th page was Dr. Jenkins sign off. The Peer Review also discussed services provided by medical providers other than the Plaintiff. Then, the Affidavit [of] Gene Jenkins, Jr., D.C. stated “[a]fter an in depth review of the medical records and attached documents, and for the reasons set forth in my report dated October 25, 2011 it is my opinion to a reasonable degree of medical certainty that the treatment provided by Kim Reddick, D.C. to Ms. Patricia Camblin on dates of service 7/31/08, 8/5/08, 8/28/08, 9/10/08, 10/1/08, 10/24/08, 11/19/08, 12/18/08, 1/4/09, 2/16/09, 3/5/09, 3/31/09, 4/17/09, 5/18/09, 6/23/09, and 7/1/09 is not reasonable, related, and/or necessary to the injuries sustained in the motor vehicle accident which is the subject of this litigation.” However, the Peer Review at no time stated that the treatment provided was not reasonable, related or necessary or that the amount charged was unreasonable.
At the time of the hearing on Plaintiff’s Motion for Final Summary Judgment, the Defendant had two (2) affirmative defenses raised, which stated as follows:
18. Defendant obtained a report from a physician licensed under the same Chapter of Florida Statutes as Plaintiff’s treating physician who determined that further chiropractic treatment and/or testing would not be reasonable, related or necessary as a result of the automobile accident. As such, Defendant has a reasonable basis to deny payment of the subject benefits. Dr. Gary Weiss performed examined Patricia Camblin on or about July 9, 2008. Dr. Weiss opined that Ms. Camblin had reached an end point with regard to any further chiropractic care, testing or treatment. She was noted to have preexisting degenerative disc disease. Therefore any chiropractic care, treatment or testing following July 27, 2008 was not paid by STATE FARM as being not reasonable, related or necessary as a result of the automobile accident which is the subject of the Complaint. Further, pursuant to the terms and conditions of the contract of insurance, the Medical Payments Coverage until the policy expired on 4/13/2008
19. Plaintiff failed to meet a statutory and/or contractual condition precedent to the filing of this lawsuit by failure to serve a compliant pre-suit demand letter as required under the Florida Rules of Civil Procedure and/or the terms and conditions or the applicable contract of insurance. As such, Plaintiff’s lawsuit is premature and subject to dismissal by this Court or in the alternative the Defendant is entitled to summary judgment as a matter of right and law.
The Defendant at no time sought leave of court to amend its affirmative defenses to include an affirmative defense asserting the treatment provided was not reasonable, related or necessary and the amount charged was unreasonable based upon Dr. Jenkins Peer Review.
However, on January 20, 2012, the Parties appeared in the courtroom at the scheduled hearing time to argue Plaintiff’s Motion for Final Summary Judgment, wherein Defense counsel handed Plaintiff’s counsel its Notice of Withdrawal of Defendant’s Second Affirmative Defenses dated 1/20/12 with the original signature, thus same had not yet been filed with the Clerk of Courts at that time. Defense counsel also handed Plaintiff’s counsel Defendant’s Opposition to Plaintiff’s Motion for Final Summary Judgment. The Court heard argument as to Defendant’s Notice of Withdrawal of Defendant’s Second Affirmative Defense and ruled that since the actual argument on the Final Summary Judgment had not begun that the withdrawal was timely. The Court, however, recognized that this affirmative defense was one of the matters argued in Plaintiff’s Motion for Final Summary Judgment and thus Plaintiff’s counsel would have time expended in preparing to argue same.II.
CONCLUSIONS OF LAW AND RULING
1. Plaintiff has met its prima facie duty to put forth evidence that the treatment provided was reasonable, related and medically necessary and that the charges are reasonable.
2. The Defendant asserts that the Affidavit of Kim Reddick, D.C. is conclusory and self-serving. The Court rejects the Defendant’s assertions and finds that the Affidavit of Kim Reddick, D.C. sets forth a factual basis for the opinions rendered as required in Progressive Express Insurance Company v. Francisco M. Gomez, M.D., P.A., 2006 WL 2616376 (Fla. Cir. Ct. 2006).
3. The Court finds that the Affidavit of Kim Reddick, D.C., the treating physician, is not conclusory and is sufficient to meet the Plaintiff’s burden of demonstrating the absence of any genuine issue of material fact regarding the reasonableness, relatedness and medical necessity of the treatment provided, as well as the reasonable amounts charged. Progressive Express Insurance Company v. Quality Diagnostic Inc. as assignee of Elda Aviles, 13 Fla. L. Weekly Supp. 433a (Fla. 11th Jud. Cir. (App.) 2006).
4. The Court finds that the Affidavit of Kim Reddick, D.C. is made on personal knowledge, sets forth facts as would be admissible in evidence and shows affirmatively that Dr. Reddick is competent to testify to the matters stated therein, in compliance with Fla. R. Civ. P. 1.510(e).
5. The Court finds that the filings made by the Defendant (i.e. the Notice of Filing the Original Affidavit of Dr. Gene Jenkins, Jr. in Support of Defendant’s Opposition to Plaintiff’s Motion for [Final] Summary Judgment with the Peer Review, as well as Defendant’s Opposition to Plaintiff’s Motion for Final Summary Judgment) did not create a genuine issue of material fact.
6. The Affidavit [of] Gene Jenkins, Jr., D.C. addresses two conclusions regarding 1) minimal record keeping standards and 2) administrative violations. The Court finds that the Plaintiff correctly argued that neither of the conclusions are relevant to the issue of whether the treatment provided is reasonable, related or medically necessary or that the amount charged is reasonable. South Florida Pain & Rehabilitation, Inc. as assignee of Kirt Godfrey v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 981b (Fla. 17th Jud. Cir. 2009).
7. The Court also finds that the Plaintiff correctly argued that Gene Jenkins, Jr., D.C. did not offer any opinions in his Peer Review or Affidavit on the cost of the services provided and therefore Defendant failed to rebut the Plaintiff’s Affidavit in that regard.
8. The Court finds that Dr. Jenkins, as to the dates of service at issue, did not render an opinion in his Peer Review that the treatment provided was not reasonable, related and/or necessary or that the charges were not reasonable in amount.
9. The Court finds that the Defendant did not present countervailing expert testimony, severely impeach the Plaintiff’s expert or present other evidence which created a direct conflict with the Plaintiff’s evidence. South Florida Pain & Rehabilitation, Inc. as assignee of Kirt Godfrey v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 981b (Fla. 17th Jud. Cir. 2009).
10. The Court does not find persuasive the Defendant’s argument that the Plaintiff did not meet its burden of proof in this matter.
11. The Court finds that there are technical concerns with the Affidavit [of] Gene Jenkins, Jr., D.C. First, the Affidavit is not made on personal knowledge when Dr. Jenkins states “[a]fter an in depth review of the medical records and attached documents, and for the reasons set forth in my report dated October 25, 2011 it is my opinion to a reasonable degree of medical certainty that the treatment provided by Kim Reddick, D.C. to Ms. Patricia Camblin on dates of service 7/31/08, 8/5/08, 8/28/08, 9/10/08, 10/1/08, 10/24/08, 11/19/08, 12/18/08, 1/4/09, 2/16/09, 3/5/09, 3/31/09, 4/17/09, 5/18/09, 6/23/09, and 7/1/09 is not reasonable, related, and/or necessary to the injuries sustained in the motor vehicle accident which is the subject of this litigation” since the Peer Review, as to the dates of service at issue, does not opine that the treatment was not reasonable, related and/or necessary. Second, Dr. Jenkins then would not be able to set forth this information in a manner that would be admissible in evidence. Third, Dr. Jenkins can not show affirmatively that he would be competent to testify as to whether the treatment was reasonable, related and/or necessary.
12. The Court finds that the Defendant failed to rebut the treatment being reasonable, related and/or medically necessary and that the amount charged was reasonable for date of service 1/14/09 in its entirety, and as to CPT Code 97010 on dates of service July 31, 2008 and August 5, 2008, as well as CPT Code 99070 on date of service May 18, 2009 and finally CPT Code 98940 on date of service July 1, 2009.
13. For all of the reasons set forth above, the arguments presented and filings made by the Parties, Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
14. Final Judgment is hereby granted in favor of the Plaintiff, DR. KIM REDDICK, DC PA D/B/A COMPLETE WELLNESS CENTER OF ORANGE CITY, as assignee of Patricia Camblin, wherein Plaintiff shall recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $1,036.48 plus 11% interest in the amount of $396.70 for the total sum of $1,433.18 for which sum let execution issue forthwith.*
15. The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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*Post judgment interest of 4.75% per annum shall be due on this judgment pursuant to Fla. Stat. §55.03.
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