19 Fla. L. Weekly Supp. 799a

Online Reference: FLWSUPP 1910BROCInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Peer review — Trial court properly excluded insurer’s expert’s peer review affidavit, offered in opposition to motion for summary judgment, based on failure of expert to maintain required medical and financial records involving PIP examinations for three years, and court properly required expert to produce business records under rule 1.280 since exceptional circumstances warranted production — However, because medical provider confessed error on this issue, appellate court reverses — Trial court correctly found that cutoff date for PIP benefits is date insurer sent written notice of suspension of benefits to insured, not date insurer obtained report of independent medical examination — No error in finding that treating physician is entitled to expert witness fee

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI NEUROLOGY REHABILITATION SPECIALISTS a/a/o MARIA BROCHE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-442 AP and 09-272 AP. L.C. Case No. 07-10335 CC 25 04. June 19, 2012. An appeal from the County Court of Miami-Dade County. Nuria Saenz, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Appellant. Arnold R. Ginsberg, Ginsberg & Schwartz, for Appellee.

(Before SCHUMACHER, ECHARTE, and CUETO, JJ.)

(CUETO, Judge.) THIS CAUSE is before this court upon an appeal of a County Court order which (1) granted summary judgment to Miami Neurology Rehabilitation Specialists (Miami Neurology) on the issue of the reasonableness, relatedness and necessity of the medical services provided, (2) required United Automobile Insurance Company (United Auto) to provide personal injury protection (PIP) benefits through the date of the benefit termination letter, as opposed to the date of the independent medical examination (IME) of the insured; and (3) required United Auto to pay the insured’s treating physician an expert witness fee in order to depose the treating physician. Based on a de novo review, this court is affirming the County’s Court’s order, in part, and reversing, in part, for the reasons set forth below.

Confession of Error: Production of Expert’s Business Records

In its appeal, United Auto contests the trial court’s decision which granted summary judgment in favor of Miami Neurology on the issue of reasonableness, relatedness and necessity of the medical services provided to the insured. United Auto contends the trial court erred in refusing to consider the peer review affidavit of Dr. Glatzer presented in opposition to Miami Neurology’s motion for summary judgment. Dr. Glatzer, an independent medical consultant, was hired by United Auto specifically to examine and review the treatment records prepared by Miami Neurology concerning the insured, and to give an opinion as to insured’s physical condition and damages. After conducting an evaluation of the insured’s medical records, Dr, Glatzer concluded the treatment fell below acceptable standards and was not reasonable, related or necessary.

The trial court, in weighing the admission of Dr Glatzer’s evaluation, determined that Dr. Glatzer failed to maintain a central filing system from which medical information could be readily retrieved, and was unable to assemble and produce information reflecting three years of payments received for peer reviews and IME reports as required under §627.736, Fla. Stat. of the PIP statute. The trial court concluded that Dr. Glatzer failed to meet the threshold requirements required to qualify as a competent medical expert under the PIP statute. Therefore, Dr. Glatzer was not qualified to express an opinion concerning the specific standard of medical care imposed on all physicians treating persons claiming PIP benefits. Consequently, the affidavit, which embodies Dr. Glatzer’s opinion on the acceptable standard of medical care, was not admitted by the trial court.

United Auto contends the trial court has abrogated Fla. R. Civ. P. 1.280 by requiring its expert witness to create and produce three years of protected and confidential medical and financial records that are not discoverable under Rule 1.280. In its objection, United Auto asserts that under Rule 1.280, the production of financial and business records, which contain sensitive patient data, may only be compelled under unusual or compelling circumstances such as evidence of fraudulent data or the manipulation of the data by the insurer. Additionally, United Auto posits that in the absence of HIPPA authorization, which regulates patients’ privacy rights, Dr. Glatzer may refuse to produce the reports.

In an unusual move, Miami Neurology confessed error during this court’s oral arguments and, in effect, conceded this argument to United Auto.¹ However, in accepting the Appellee’s confession of error, the confession leaves unresolved fundamental issues such as (1) whether the failure to maintain records in an assembled usable form as required by the PIP statute renders a medical expert incompetent to qualify as an expert; and thus any opinion evidence submitted by the expert is patently inadequate; and (2) whether a party’s requests to obtain financial and medical records regarding an IME physician’s payments and reports violates Rule 1.280

Because the confession of error implicates important policy concerns which merit discussion, this court is compelled to address the issues alluded to, so as to prevent unintended consequences that may arise from a tacit approval, irrespective of opposing parties reaching an agreement on the basic subject.

At the outset, this court finds that §627.736(7), Fla. Stat., (2011)² entitled “Mental and Physical Examination of Injured Person; Reports,” has a material bearing on the witness’ competence to testify to the standard of medical care.

In 2003, the PIP laws were amended by requiring examining physicians, who prepare medical reports concerning PIP claimants, to maintain a comprehensive compilation of medical and financial records involving PIP examinations for at least 3 years. The requirement was intended to eliminate fraud and insurer tampering, or to ensure the expert is not concocting prior opinions or propositions solely for the purpose of being hired and compensated for future testimony.³ At the very least the requirement was arguably intended to conserve resources since much of the information that would otherwise be sought by deposition will now be automatically complete and available.

This court finds the requirement avoids a blind reliance and unsubstantiated assumption that the medical witness has specialized technical scientific knowledge in a particular field of expertise. The maintenance and disclosure also exposes faulty work and questionable hypotheses. Therefore, the requirement affects the competence of the examiner to testify as to the manner of treatment.

This court acknowledges that Rule 1.280 was modified to reflect the Florida Supreme Court’s decision in Elkins v Syken, 672 So. 2d 517 (Fla 1996) [21 Fla. L. Weekly S159a] which significantly restricted the discovery of a physician’s business records. However, the amendments to Rule 1.280 have restricted, but not eliminated, discovery of an expert’s records concerning medical opinions and compensation. The objective is to prevent burdensome discovery while still simultaneously allowing discovery of potentially relevant information in certain exceptional circumstances. Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) [24 Fla. L. Weekly S187a].

In Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1747a], the Fourth District Court of Appeal, in interpreting Rule 1.280, concluded that exceptional circumstances existed warranting discovery of the financial affairs of an expert witness, who was a non-party to the personal injury suit. In Katzman, the defendant believed that a large portion of the plaintiffs treating physician’s income was generated by a controversial surgical procedure, and the expert charged more for the procedure in litigation cases than in non-litigation cases. The Fourth District Court of Appeal affirmed the trial court’s order granting discovery of the expert’s medical and financial records. The appellate court considered the circumstances as an “unusual and compelling circumstances” exception to Rule 1.280 which warranted a “limited intrusion” into a physician expert’s financial affairs. The court reasoned the discovery sought was case-specific information relevant to the ultimate substantive issue in litigation, i.e., the reasonableness of the costs and the necessity of the procedure. That court “reject[ed] the petitioner’s attempt to create a per se rule that all financial discovery from any expert . . . is always limited strictly to those matters set forth in Rule 1.280(b)(4)(A).” Id., at 1065.

By analogy, this court finds the business records of the IME physician is discoverable since the ultimate substantive issue in litigation is the expert’s evaluation of the reasonableness, relatedness and necessity of the insured’s treatment, and whether the evaluation is reliable and credible.

In sum, this court would have ruled that the trial court appropriately considered the threshold issue of whether the expert witness qualified as a competent expert, capable of assisting the court in resolving medical care standards based on impartial, reliable and credible testimony. This court would have also ruled that the trial court correctly excluded the expert’s affidavit based on the failure to maintain required records; and that the trial court appropriately required the expert to produce his business records since exceptional circumstances warranted production. However, in yielding to the confession of error, this court will reverse the trial court’s order.

Termination of Benefits — Trigger Date

Conversely, this court affirms the trial court’s decision to extend insurance benefits through the date of the termination letter. The trigger date for suspending PIP benefits is the date of the carrier’s written notice to the insured, and not the date of the independent medical examiner’s IME examination.

Section 627.736(4)(b), titled “Benefits; When Due,” governs benefits and notice. The provision provides, in relevant part:

When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer has reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment . . . and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence. (emphasis added)

§627.736(4)(b), Fla. Stat. (2011).

In construing the above statutory language based on the text’s ordinary and commonly accepted meaning, it is clear that in instances in which the insurer either denies or reduces PIP benefits, the insurer must provide written notice to the claimant of the decision contemporaneous in time with the date of the decision to deny or reduce the benefits. In view of the detailed, statutorily prescribed notice requirements set forth in subsection (4)(b), requiring an itemized statement, a claim number, a contact name and address of the insurance company’s representative, it appears that the intent of the provision is to ensure that an insurer — who intends to limit benefits — is aware of his notice obligations and properly informs a PIP recipient of the reduction in or denial of benefits.

Arguments advanced by United Auto raise certain practical questions and are not logical or consistent with the purpose of PIP. In particular, if, as United Auto proposes, benefits are to be suspended as of the date the insurer obtains a valid report from a Florida physician, then an insurer can readily withhold the issuance of its suspension notice to the insured on mere whim while the insured continues to accumulate and incur bills for medical treatment, unaware that PIP benefits have been terminated. The ultimate result would be patently unjust. This practice would also be in violation of the purpose of the PIP statute which is to conserve time and money by promptly settling PIP matters “so the insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a].

Therefore, based on a reading of the governing PIP provision, and for purposes of advancing the objectives of the PIP statute, the termination of PIP benefits should correspond with the date of the written notice of the decision, and not on the date the insurer obtained an IME report from a Florida physician.

Expert Witness Fees

This court also affirms the trial court’s decision, which regarded the treating physician as an expert witness entitled to expert witness fees.

In determining whether to reverse or affirm the trial court’s order, this court conducted an independent de novo review of the record to determine whether the trial court applied the correct rule of law or misconstrued governing authority regarding entitlement to fees. Davis v. Estate of Davis, 77 So. 3d 703 (Fla.3d DCA 2011) [36 Fla. L. Weekly D2435a] (legal entitlement to fees is reviewed de novo).

Research has disclosed that in certain cases, the Third District Court of Appeal has classified treating physicians as ordinary fact witnesses who are not entitled to an expert witness fee since their testimony is based on their personal knowledge of the treatment of the patient and not information acquired from outside sources for the purpose of giving an opinion at trial. Greenberg v. Schindler Elevator Corp., 47 So.3d 901 (Fla.3d DCA 2010) [35 Fla. L. Weekly D2396a]; Fittipaldi USA Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a]; Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a]; Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981).

Yet, notably, the Third District Court of Appeal has not provided a clear analytical framework for discerning experts from lay witnesses. This lack of clarity has led to a lack of uniformity among the decisions issued by this judicial circuit, in its appellate capacity. Because the law in this area is unsettled, there is no consensus within our own judicial circuit as to whether a treating physician is an expert witness entitled to an expert witness fee versus an ordinary fact witness not entitled to an expert witness fee.

For instance, some appellate panels have ruled that doctors should be universally classified as experts since the opinions that doctors provide are often derived from specialized knowledge. Thus, treating physicians, by virtue of their expertise in their respective fields, should never be categorized as fact witnesses, and should be paid as an expert for their time. See United Auto Ins. Co. v. Palm Rehab., Inc. a/a/o Jose Blanco, 17 Fla. L. Weekly Supp 929a (Fla. 11th Cir. Ct. May 12, 2010); United Auto Ins. Co. v. Fla. Inst. for Pain, Inc. a/a/o Mirtha Morin, 17 Fla. L. Weekly Supp 419a (Fla. 11 Cir. Ct. Feb 25 2010); United Auto Ins. Co. v. Eduardo Garrido, D.C., P.A. a/a/o Aurea Abreu, 17 Fla. L. Weekly Supp 10a (Fla. 11th Cir. Ct. Nov. 10 2009); Progressive Express Ins. Co. v. Prof’l Med. Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct 14, 2003).

Other appellate panels have concluded that it is the substance of the testimony that controls whether to characterize the witness as a lay person or an expert. In reaching this conclusion, those panels have noted that fact witnesses acquire their information by personal observations of critical events, and their own perceptions. Therefore, treating physicians, who are subpoenaed to testify as to their personal consultation with a patient, should be considered fact witnesses. United Auto Ins. Co. v. Flagler Med Ctr., Inc. a/a/o Mercedes Maura, 17 Fla. L. Weekly Supp 1079a (Fla. 11 Cir. Ct. July 22, 2010); United Auto Ins. Co. v. Tamara Duncan, 17 Fla. L. Weekly Supp. 329a (Fla. 11th Cir. Ct. Feb 11, 2010); United Auto Ins. Co. v. Fla. Inst. for Pain, Inc. a/a/o Margarita Ibarra, 17 Fla. L. Weekly Supp 163d (Fla. 11 Cir. Ct. Dec. 9 2009); United Auto Ins. Co. v. Comprehensive Health Ctr., Inc. a/a/o Erla Telusnor, 16 Fla. L. Weekly Supp. 1143a (Fla. 11 Cir. Ct. Oct. 21 2009).

This court finds Florida’s rules of civil procedure and Florida’s rules of evidence are decisive authority. These rules define “experts” by reference to their knowledge, skill, or training. Fla. R. Civ. P. Rule 1.390 and §90.702, Fla. Stat. (2011). The provisions do not exclude treating physicians from the definition of an expert witness; or support the proposition that a witness is only an expert if his or her knowledge of the case was acquired or developed in anticipation of litigation or for trial.

Under §90.701, Fla. Stat.(2011), governing lay witnesses’ testimony, the testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of §90.702, Fla. Stat.

When read together, these provisions implicitly distinguish expert witnesses from lay witnesses based on specialized knowledge. Therefore, in the instant case, the treating physician qualifies as an expert as contemplated by the rules of civil procedure and the rules of evidence.

Ruling

Thus, the trial court’s decision, regarding witness fees and termination of benefits, comports with the record and governing authority. Accordingly, this court affirms the trial court’s decision as to those matters. This court, however, in deference to the Appellee’s confession of error, reverses the trial court’s decision which excluded the peer review affidavit of Dr. Glatzer, and which granted summary judgment in favor of the Appellee on the issue of reasonableness, relatedness and necessity of the medical services provided. Accordingly, this case is remanded to the trial court for further proceedings consistent with this opinion.

Due to the posture of this case where this court is remanding this matter for further proceedings, Miami Neurology is not entitled to an award of appellate attorney’s fees. However, in the event Miami Neurology prevails on the merits of the proceeding on remand at the trial court level, this court grants a conditional appellate fee award, and directs the trial court to assess the appropriate amount contingent upon Miami Neurology ultimately prevailing. Johnson v. Maroone Ford, LLC, 944 So. 2d 1059 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2174a]; Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). (ECHARTE and SCHUMACHER, JJ., concur.)

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¹Miami Neurology referenced a Third District Court of Appeal case which allegedly resolved this issue in favor of United Auto. However, this court, after extensive research, was unable to confirm this.

²627.736(7) — Mental and Physical Examination of Injured Person; Reports

(a) . . . .The physician preparing a report at the request of an insurer . . . of persons claiming medical benefits of personal injury protection, shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments of the examinations and reports.

³A leading legal commentator on Florida’s PIP statute notes that §627.736(7)(a) addresses “a growing complaint by the plaintiff’s bar that many IME physicians were, in fact, not independent, and were a captive market issuing boilerplate, and often unsubstantiated, reports.” Russel Lazega, Motor Vehicle No-Fault Law Personal Injury Protection (PIP) — § 15:12 Discovery of Insurer’s File (2011-2012 ed) . . . “To help improve honest IME reporting, the legislature in 2003 added to the PIP statute requirements that IME doctors maintain all reports as medical records and maintain payment records for at least 3 years.” Lazega, Id., at §7:1 Examination of Persons — Generally.

The commentator further notes that the purpose of the law is to expose and eliminate financial bias of the examiner who may generally deny claims and not decide a claim on the individual merits of each claim. Lazega, Id., at § 15:12 Discovery of Insurer’s File. Logically, this affects the competency of the examiner to testify as to the manner of treatment.

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