19 Fla. L. Weekly Supp. 779a
Online Reference: FLWSUPP 1910ORTEInsurance — Personal injury protection — Discovery — Depositions — Issue of whether treating physician is entitled to expert witness fee for deposition testimony is not ripe where insurer did not proceed with deposition after trial court required payment of fee — Independent medical examination — Trial court erred in finding that effective date of IME cutoff letter was date letter was sent rather than date IME was conducted — Further, since PIP statute does not require that insurer send IME cutoff letter to insured’s attorney, trial court erred in extending IME cutoff date due to failure to provide cutoff letter to attorney — Error to enter summary judgment in favor of provider on affirmative defense that expenses incurred after date of IME were not reasonable, related and necessary — Error to enter summary judgment in favor of provider on affirmative defense of late billing where there was conflict in evidence as to whether bills were actually sent and received
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC. a/a/o Mayler Ortega, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-091 AP & 09-397 AP. L.C. Case No. 07-17047 CC 25. July 16, 2012. Appeal from the County Count, Jacqueline Schwartz, Judge. Counsel: Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Victoria M. Best, Lopez & Best, for Appellee.
(Before: KORVICK, FARINA and SANCHEZ-LLORENS, JJ.)
(PER CURIAM.) On February 3, 2007, Mayler Ortega was involved in an automobile accident wherefrom he sustained injuries. At the time of the accident, Ortega was an insured under a policy of insurance for Personal Injury Protection (PIP) benefits provided by the Appellant, United Automobile Insurance Company (“United Auto”).
From February 27, 2007 through May 30, 2007, Ortega sought medical treatment from the Appellee, Professional Medical Group a/a/o Mayler Ortega (“Group”), and subsequently assigned his benefits under the policy to Group. When United Auto did not pay Group for certain of Ortega’s treatment, Group brought suit against United Auto seeking damages for no-fault benefits.
In answering Group’s complaint, United Auto filed certain affirmative defenses. In one defense, United Auto alleged that any services rendered to Ortega after March 21, 2007 were not reasonable, related or necessary (RRN), pursuant to an Independent Medical Examination (IME) conducted by Dr. Richard Glatzer, M.D. on that date. (Accordingly, on March 28, 2007, United Auto sent an “IME cutoff letter” notifying Ortega that it would be suspending benefits for further medical treatment based on Dr. Glatzer’s March 21, 2007 examination.) In a second affirmative defense, its “Late Billing” defense, United Auto alleged that it never received the required written notice of services rendered to Ortega from April 23, 2007 through May 9, 2007 prior to Group’s demand for payment for this time period.
During the course of the litigation, United Auto sought to depose Dr. Jose Luis Vasquez, Ortega’s treating physician. In response, Group filed a “Motion for Protective Order and for Attorney’s Fees and Costs.” Subsequently, the trial court granted Group’s motion, ordering that United Auto would have to pay an expert fee to Vasquez in order to depose him. As alleged here on appeal, because of this, United Auto eventually decided not to take the deposition.
Group moved for summary judgment on the issue of RRN, attaching to it the affidavit of Dr. Vasquez who attested that his bills were RRN. The trial court granted Group’s motion, finding that the bills from February 20, 2007 through March 28, 2007, the IME cutoff date, were RRN. Further, in the same order, the court found that the bills through May 9, 2007 were RRN because the IME cutoff letter was not provided to counsel for Ortega, as it had been originally requested in a representation letter sent to United Auto. Lastly, the court granted Group’s motion for summary judgment on United Auto’s Late Billing defense.
United Auto now appeals the summary judgments entered against it and in favor of Group. Preliminarily, however, United Auto asserts that the trial court committed error when it ordered United Auto to pay an expert fee to depose Dr. Vasquez, Ortega’s treating physician. Secondly, United Auto argues that the court erred by finding that the IME effective date was March 28, 2007, the date the notification was sent out, and not the date of the examination, March 21, 2007. Further, United Auto argues that the failure to send an IME cutoff letter cannot legally perforce a finding of RRN, positing that to hold otherwise would result in coverage being established or extended by the doctrines of waiver and estoppel. Lastly, United Auto argues that the court erred in granting summary judgment on the issue of Late Billing given the conflicting evidence surrounding whether the bills were in fact sent and received by the parties.
In response, Group argues that, with respect to expert fee issue, the issue is moot because United Auto did not actually depose Dr. Vasquez. Secondarily, Group argues that United Auto has failed to supply a transcript of the hearing in which the trial court determined that Dr. Vasquez was entitled to a fee, which in such instance requires this court to affirm the order. However, irrespective of these two arguments, Group maintains that, in the end, the law supports the imposition of a fee. Lastly, with respect to the late billing defense, Group argues that United Auto did not present any competent evidence to rebut Group’s corporate representative’s statement that she placed the subject bills in question in the U.S. mail personally at a local post office.
We reverse the summary judgment on the issues of RRN and Late Billing, find that the expert fee issue is not ripe, and accept Group’s oral and belated confession of error on the issue of the IME cutoff date as proper.
While this court is imminently aware that there is divergent legal authority on whether a treating physician should be treated as an expert and thus entitled to a fee, we do not reach the issue here inasmuch as United Auto did not proceed with its deposition of Dr. Vasquez. In our view, this issue is not ripe. We find here that the controversy presented by the issue has not matured to the point that the decision of the lower tribunal will necessarily affect the rights of the parties. See e.g. J. Walters Const., Inc. v. Gilman Paper Co., 620 So. 2d 219 (Fla. 1st DCA 1993); D & M Jupiter, Inc. v. Friedopfer, 853 So. 2d 485 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1709a]; Jackson v. York Hannover Nursing Centers, Inc., 853 So. 2d 598 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2097a].
The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. As such, this court must conduct an “independent review of the record evidence” and determine whether there is a genuine issue of fact and whether the trial court applied the correct rule of law. See San Miguel v. City of Miami, 760 So. 2d 979, 980 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1306a].
With respect to United Auto’s RRN affirmative defense, it has been held that the effective date of an IME is the date on which the examination occurred and not the date the notification was sent out. See United Auto Ins. Co. v. Florida MRI. Inc. a/a/o Henry Salcedo, 15 Fla. L. Weekly Supp. 581a (Fla. 17th Cir. Ct. Mar. 7, 2008); United Auto Ins. Co. v. Professional Medical Group, Inc. a/a/o Mercedes Valientes, 16 Fla. L. Weekly Supp. 389a (Fla. 11th Cir. Ct. March 12, 2009). Applied here, the IME was conducted on March 21, 2007. Under Salcedo and Valientes, March 21, 2007 was the effective date, not March 28, 2007 as the court found.
Further, the PIP statute does not contain a requirement that the insurer send an IME cutoff letter to an insured’s attorney. Pursuant to Florida Statute section 627.736(7)(b), an “examinee” is entitled to the results of an IME if same is requested. The trial court erred when it effectively extended the IME cut off date to May 8, 2007 for failure to provide counsel with the report. United Auto should have been allowed to contest any treatment as RRN beyond March 21, 2007. United Auto should have been allowed to contest RRN with its IME, without the limitations placed on it by the trial court. To this end, the trial court’s grant of summary judgment to Group on United Auto’s RRN affirmative defense must be reversed. The trial court’s order is legally insupportable. Accordingly, we find Group’s confession of error proper.
Lastly, with respect to the summary judgment on the Late Billing affirmative defense, from perusal of the record, we find that there was contradicting evidence with respect to whether the subject bills were actually sent out and received. Group’s billing clerk was deposed, and she at once testified that Group only submitted one set of bills to United Auto. However, during the deposition, the clerk received a fax and after reviewing it, she changed her testimony, stating that there was a second set of bills reflecting Ortega’s treatment from April 23, 2007 through May 9, 2007. Nevertheless, United Auto presented the affidavit of an adjuster and she attested that United Auto did not receive any medical bills from Group reflecting this time period. This presented a genuine issue of material fact which should have precluded summary judgment. As such, the judgment should be reversed. See Speedway Superamerica, LLC v. Dupont, 933 So. 2d 75, 75 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1471c] (“To be entitled to a summary judgment, a party moving for summary judgment must conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw every possible, reasonable inference in favor of the party against whom the summary judgment is sought.”).
Reversed and remanded for further proceedings consistent herewith.
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