20 Fla. L. Weekly Supp. 80a

Online Reference: FLWSUPP 2001GUERInsurance — Personal injury protection — Coverage — Medical expenses — Demand letter — Insurer waived defense that presuit demand letter did not comply with requirements of statute by failing to raise issue in its response to demand — Demand letter not defective for failing to attach copy of insurer’s notice withdrawing payment for further treatment where demand letter was not seeking payment for future treatment, but for services already rendered — Reasonableness of treatment — Conclusory and self-serving affidavit filed by insurer in response to provider’s affidavit was insufficient to create genuine issue of material fact regarding reasonableness of charges

B&D CHIROPRACTIC INC. d/b/a/ CHIROPRACTIC WORKS (a/a/o Ivan Guerrero), Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, Seventeenth Judicial Circuit in and for Broward County. Case No. 11-04381 COCE 51. August 24, 2012. Martin R. Dishowitz, Judge. Counsel: Sisy a. Mukerjee, Mukerjee Law Group, Coral Springs, for Plaintiff. Christopher W. Kellam, Green, Murphy & Murphy, P.A., Fort Lauderdale, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT IN PART

THIS CAUSE came before the court for hearing on July 25, 2012 on the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the motion, the court file, legal authorities, and having heard argument of counsel, and having been sufficiently advised in the premises, it is hereby,

ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows:

FACTUAL BACKGROUND

1. The Plaintiff moved for Final Summary Judgment with respect to its claim for breach of contract against Liberty Mutual Insurance Company, (hereinafter “Liberty Mutual”) as the treatment provided by Plaintiff was reasonable, related and medically necessary, the charges were reasonable and Plaintiff’s Demand Letters complied with Fla. Stat. 627.736(10).

2. Liberty Mutual’s insured was involved in a motor vehicle accident on September 1, 2010 and thereafter sought treatment from the Plaintiff from September 7, 2010 to February 1, 2011.

3. Plaintiff submitted its bills for service to the Defendant for dates of service 9/7/10 through 2/1/11.

4. Liberty Mutual impermissibly paid a reduced rate under the Medicare Fee Schedule for dates of service 9/7/10 through 11/9/10; Defendant suspended benefits pursuant to an Independent Medical Examination (“IME”) by Dr. Bruce Mark, D.C., effective November 16, 2010, and thus no further payments were made post 11/16/10.

5. Liberty Mutual in response to Plaintiff’s Demand Letters for dates of service after 11/16/10, denied payment based on the IME and maintained that any prior payments issued for dates of service 09/7/10 through 11/9/10, were reasonable under the Medicare Fee Schedule.

6. Defendant claimed these payments were reasonable payment amounts in accordance with the provisions of both the Florida No-Fault Statute and Defendant’s automobile policy contract, denying any further payment for these dates of service. In responding to the Plaintiff’s Pre-Suit Demand Letters, Defendant did not raise any purported deficiencies prior to filing suit.

7. The instant action was filed on or about January 23, 2012. In Liberty Mutual’s Answer, it raised three affirmative defenses, medical expenses were paid in accordance with Fla. Stat. 627.736, Plaintiff’s Demand Letter failed to comply with Fla. Stat. 627.736(10), and that the medical expenses were not reasonable, related or necessary.

8. Defendant concedes that all bills were medically necessary and related up to the IME Cutoff date of November 16, 2010.

9. In support of Plaintiff’s position that all of the subject treatment was reasonable, related and medically necessary, Plaintiff submitted the affidavit of Dr. William Gerwig, D.C., treating physician at B&D Chiropractic Inc.

10. In opposition to Plaintiff’s Motion for Summary Judgment, Defendant filed the affidavit of Nicole Bonaparte as to reasonableness and the deposition of the IME Dr. Bruce Marks, D.C., regarding medical necessity and relatedness post 11/16/10.

LEGAL CONCLUSIONS

11. Plaintiff has met its prima facie duty to put forth evidence that the charges for treatment were reasonable.

12. The Court finds that the affidavit of Dr. William Gerwig, D.C., the treating chiropractor, sets forth a factual basis for the reasonableness of the charges, and is sufficient to meet the Plaintiff’s burden of demonstrating the absence of any genuine issue of material fact regarding the reasonableness of the charges.

13. The Court does not find persuasive the Defendant’s argument that the Plaintiff did not meet its burden of proof as to reasonableness of the charges in this matter.

14. The Court finds that the Affidavit of Dr. William Gerwig, D.C., is made on personal knowledge, sets forth facts as would be admissible in evidence and shows affirmatively that Dr. Gerwig is competent to testify to the matters stated therein, in compliance with Fla. R. Civ. P. 510(e).

15. The Court finds that the Affidavit of Nicole Bonaparte, filed in opposition to Dr. Gerwig’s Affidavit, is conclusory and self-serving, and does not create a genuine issue of material fact to dispute the affidavit filed by Plaintiff of Dr. Gerwig, D.C.

16. The Court has reviewed and considered the affidavit of Nicole Bonaparte, filed in opposition to Plaintiff’s Motion for Summary Judgment. The Court finds that the Plaintiff correctly argued that the Affidavit of Nicole Bonaparte did not explain how she determined what was considered a high and low range to charge for services nor what is considered reasonable in the community for the charges set forth by Plaintiff. Rather, Ms. Bonaparte merely established herself as a code expert, by stating that she reviews AMA guidelines, and the Medicare Fee Schedule Resource Based Relative Value System (RBRVS) to determine the physician work value for services.

17. Thus, the Court finds that the affidavit of Nicole Bonaparte was insufficient as she did not set forth as having personal knowledge of what is considered to be usual and customary in the geographic area, nor how she opined what would be reasonable as to the services rendered.

18. The Court finds that the Defendant did not present countervailing expert testimony, severely impeaching the Plaintiff’s expert or present other evidence which created a direct conflict with the Plaintiff’s evidence. See 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).

19. The Court finds that the Plaintiff’s pre-suit demand letters sent on February 7, 2011, March 10, 2011, and November 22, 2011, were legally sufficient and complied with the statutory requirements of Fla. Stat. 627.736(10).

20. The Court rejects Defendant’s argument that Plaintiff’s Pre-Suit Demand Letters dated February 7, 2011 and March 10, 2011, were insufficient for failure to attach insurer’s notice of withdrawing authorization for further benefits pursuant to an IME suspension.

21. In Douglas Rapid Rehabilitation, Inc. v. United Automobile Insurance Company, 18 Fla. L. Weekly Supp. 312b, (Fla. 17th Jud. Cir. 2010) the Defendant responded to Plaintiff’s Pre-Suit Demand Letters failing to make mention of any issue regarding any alleged noncompliance of the letters with the requirements of Fla. Stat. 627.736(10), in which the Court found Defendant waived its right to assert any technical defects. Id.

22. Similarly, this Court finds that Plaintiff’s Pre-Suit Demand letters were not seeking payment for “future treatment not yet rendered” but demanding payment for services already provided by the Plaintiff, therefore Plaintiff was not required to attach copies of Defendant’s IME suspension letters.

23. Furthermore, the Defendant did not advise the Plaintiff of any alleged deficiencies in Plaintiff’s Pre-Suit Demand Letters prior to suit. Had Defendant done so, Plaintiff could have cured the defect prior to the filing of the instant suit. In reaching this conclusion, the Court follows Salcedo, in which the Salcedo Court held, “nowhere in the legislative history did the legislature contend that a minor defect invalidates the obligation to pay for the legitimately and lawfully rendered medical care. To allow a party to take advantage of an alleged mistake under circumstances rendered such as this encourages “gotcha” litigation condemned by the Courts. See Salcedo Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3rd DCA 1979) . Id.

24. Thus, the Court finds that Defendant waived any deficiency with respect to its alleged defective demand letter defense since it failed to raise the issue in its response to Plaintiff’s Pre-Suit Demand Letters.

25. See also Lake Worth Emergency Chiropractic, 15 Fla. L. Weekly Supp. 1227a (Fla. 17th Jud. Cir. 2008) in which the court pointed out subsection (4)(b) requires an insurer to notify a claimant if it considers a providers’ submission to be incomplete or defective and held that failure to do so and to afford the claimant an opportunity to correct any asserted defect estops the insurer from asserting any defect as a defense to payment. Id.

THEREFORE, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED IN PART as to the reasonableness of all charges, that all treatment prior to November 16, 2010, was medically necessary and related; and that Plaintiff’s Pre-Suit Demand Letters were compliant with Fla. Stat. 627.736(10); and DENIED IN PART as to the issue of medical necessity and relatedness after the IME cutoff of 11/16/10 as the issue remains.

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