19 Fla. L. Weekly Supp. 215b
Online Reference: FLWSUPP 1903MORRInsurance — Personal injury protection — Coverage — Reasonable charges — Evidence that insurer paid more than amount medical provider accepts from Medicare for like services by paying 200% of Medicare fee schedule as provided for in PIP statute is not sufficient to prove that amount charged by provider was unreasonable — Insurer improperly elected permissive fee schedule of PIP statute despite policy language requiring payment of 80% of reasonable charges and further reduced payments below even permissive fee schedule’s minimum reimbursement by improperly applying outpatient prospective payment system cap
WINDSOR IMAGING a/a/o Roneil Morris, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-010331 COCE 53. December 12, 2011. Honorable Robert W. Lee, Judge. Counsel: Marc Finkelstein, Mark Finkelstein, P.A., Fort Lauderdale, for Plaintiff. Mark Rose, Roig, Tutan, Rosenberg & Zlotnick, P.A., Deerfield Beach, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on November 21, 2011, for hearing on Plaintiff, OPEN MAGNETIC SCANNING LTD., d/b/a Windsor Imaging’s Motion for Final Summary Judgment pursuant to Rule 1.510, Fla.R.Civ.P. The Court having reviewed the motion and entire Court file; heard argument of counsel; reviewed relevant legal authorities and being sufficiently advised in the premises, finds as follows:
Background:
This lawsuit arises out of the reduction of Personal Injury Protection (“PIP”) benefits to WINDSOR IMAGING, as assignee of Roneil Morris, an insured of the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”) for diagnostic services rendered by the Plaintiff. The affirmative defense raised in Defendant’s Answer and Affirmative Defenses have been disposed of by prior Order. The only remaining is whether the diagnostic services provided by the Plaintiff was reasonable, necessary and related to the motor vehicle accident at issue.
In support of its motion, Plaintiff filed the affidavits of Susan Garrison and Dr. Darren Kreitman, D.C. Ms. Garrison attests that the Plaintiff’s charges were reasonable, usual and customary based upon her personal knowledge with respect to the amounts billed by other MRI providers in the Broward County Community, as well as the amounts paid by other PIP insurers for like services. Dr. Kreitman, Mr. Morris’ treating physician, attests in his affidavit that the diagnostic services at issue were necessary, were reasonable, and were related to the subject motor vehicle accident.
Conclusion of Law:
Under the holdings of existing case law, the affidavit of the medical provider stating that care given to the patient was reasonable, related and necessary is sufficient for the Plaintiff to meet its burden of proof as to this element of the claim. The Plaintiff may also establish the reasonableness of the charges without expert testimony. Derius v. Allstate, 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].
The party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c].
This Court finds that the affidavits filed in support of Plaintiff’s motion for final summary judgment are sufficient for Plaintiff to meet its burden of proof as to reasonable, related and necessary thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
In opposition to Plaintiff’s Motion, STATE FARM argued that it paid the appropriate and allowable amount of Plaintiff’s claim pursuant to Florida Statute 627.736 stating that the Plaintiff accepts payment from Medicare which is less than the amount State Farm paid, therefore the amount State Farm paid was reasonable. However, the issue before this Court is not whether State Farm paid a reasonable amount, rather whether the amount charged for the service at issue was reasonable. Defendant failed to present any evidence that the amount charged by the Plaintiff was unreasonable.
Even if this Court were to consider Defendant’s argument, irrespective of the policy language calling for 80% of reasonable charges, the amount State Farm paid was not in fact the appropriate and allowable amount reimbursement under Florida Statute 627.736(5)(a)2.f. and therefore said amount was unreasonable. Nationwide Mut. Fire Ins. Co. v. AFO Imaging, Inc., 71 So. 3d 134 (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D1463b].
The No-Fault Act set the floor with respect to the minimum reimbursement under Florida Statute 627.736(5)(a)2.f. which states: “. . . may not be less than [200% of] the allowable amount under the participating physicians schedule of Medicare Part B for 2007 . . .”. (emphasis added)
It is undisputed that not only did State Farm improperly elect the permissive fee schedule, it further reduced reimbursement by improperly applying the outpatient prospective payment system (OPPS) cap to the allowable reimbursement thereby paying less than the minimum reimbursement under Florida Statute 627.736.
Accordingly, Defendant failed to present any countervailing expert testimony or present any other competent and substantial record evidence to create a direct conflict with the proponent’s evidence, therefore Defendant failed to meet its burden, thus no genuine issue of material fact exist and judgment is proper for the Plaintiff.
Therefore, it is,
ORDERED AND ADJUDGED that Plaintiff, OPEN MAGNETIC SCANNING LTD., d/b/a Windsor Imaging’s a/a/o Roneil Morris, shall recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the principle sum of $844.50, plus prejudgment interest in the amount of $283.46 for a total sum of $1,127.96 that shall bear interest at the legal rate of 4.75% for all of which let execution issue.
It is further,
ORDERED AND ADJUDGED that Plaintiff is the prevailing party and therefore entitled to attorneys fees and costs which this Court retains jurisdiction to determine the amount of same.
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