20 Fla. L. Weekly Supp. 292b
Online Reference: FLWSUPP 2003WINNInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit stating that insurer “considers 80% of 200% of the 2008 Medicare Part B Fee Schedule to be the maximum reasonable charge for the service/treatment billed by the Plaintiff” was insufficient to demonstrate existence of genuine issue of material fact in the face of sworn affidavit submitted by plaintiff in which affiant testified that she was familiar with usual and customary charges in the community because she had reviewed thousands of explanations of benefits indicating reimbursable amounts for the CPT codes at issue in instant case and that the amounts charged in this case were reasonable and customary in the community
HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC f/k/a DAMADIAN MRI IN POMPANO BEACH, P.A., d/b/a STAND-UP MRI OF FORT LAUDERDALE, a/a/o John Winn, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO09-11903(73). December 3, 2012. Steven P. DeLuca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Reuven Herssein, Herssein & Herssein, North Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTAS TO REASONABLENESS AND DEFENDANT’S CROSSMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on April 24, 2012, on Plaintiff’s Motion for Summary Judgment as to Reasonableness and Defendant’s Cross Motion for Final Summary Judgment and the Court having considered the record, having heard counsel, and being otherwise advised in the Premises, it is hereupon, ORDERED AND ADJUDGED as follows:BACKGROUND:
1. This is a lawsuit for unpaid personal injury protection (“PIP”) benefits in the amount of $2,357.89.
2. In this case, the policy issue date,1 the insured’s accident date,2 and the date of service3 all occurred after the January 1, 2008, effective date of the amendment to the PIP statute.
3. This case involves two MRI scans performed by Plaintiff on John Winn.
4. Plaintiff timely submitted its claim, but Defendant chose not to pay the full amount billed.
5. On April 20, 2009, Plaintiff, through its attorney, mailed a demand letter to Defendant.
6. In response to Plaintiff’s demand letter, the Defendant denied payment claiming solely that the bills were submitted without the required Standard Disclosure and Acknowledgment Form.
7. Defendant later abandoned this defense and confessed judgment in the amount of $1,845.31 for PIP benefits, which represented the allowable amount pursuant to the Medicare Part B fee schedule.
8. In this Court’s Order dated June 21, 2011, the Defendant stipulated that the only remaining issue was the reasonableness of the charge and/or amount of payment issued.
9. Both parties have filed their respective motions for summary judgment as to the reasonableness of the charge.
ANALYSIS OF APPLICABLE LAW AND CONCLUSION
1. The law pertaining to summary judgment is well settled in Florida4: First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.5 Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.6 Third, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought.7 Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment cannot be granted.8 Fifth, once the moving party meets its burden of showing conclusively the complete absence of any genuine issue of material fact, the burden shifts to the non-moving party.9
2. Under Fla. Stat. §627.736(1)(a), the insurer must provide medical benefits to the insured so long as such benefits are for reasonable, related, and necessary remedial treatment.
3. Based on the stipulation of the parties, the only issue remaining in this case is the reasonableness of the charges.
4. The Plaintiff obtained a sworn affidavit from Kimberlee Mohr, in which she testified under oath that she is familiar with the usual and customary charges in the community because she has reviewed thousands of EOBs indicating reasonable reimbursable amounts for the same CPT codes that were charged by Plaintiff in this case. Ms. Mohr further testified that the amounts charged for the CPT codes in this case were reasonable, usual and customary in the Broward County community.
5. The Defendant obtained a sworn affidavit from its litigation adjuster, Kevin Demers, in which he testified under oath that Defendant considers 80% of 200% of the 2008 Medicare Part B fee schedule to be the maximum reasonable charge for the CPT codes at issue in this case. Mr. Demers further testified that Plaintiff’s charges were not reasonable since the amount Plaintiff is seeking in this case was more than 200% of the Medicare Part B fee schedule.
6. The Court finds that the affidavit filed in support of Plaintiff’s Motion for Summary Judgment is sufficient for Plaintiff to meet its burden of proof thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
7. In this case, the Defendant relied solely on the affidavit of Mr. Demers both in opposition to Plaintiff’s Motion for Summary Judgment and in support of Defendant’s Cross Motion for Summary Judgment. The Defendant failed to offer any other record evidence for this Court to consider.
8. Pertaining to the Affidavit of Mr. Demers, this Court finds that the Affidavit was legally insufficient. Normally this Court, in compliance with the current state of the law,10 would have allowed the Defendant to amend a legally insufficient affidavit, however, since the legal insufficiency was not the basis for this Court’s ruling, this Court finds that permitting Defendant to amend its legally insufficient affidavit in this case would be futile.
9. The Court further finds that Mr. Demers’ affidavit was factually insufficient because the entire basis for Defendant’s dispute as to the issue of reasonableness is that “USAA considers 80% of 200% of the 2008 Medicare Part B Fee Schedule to be the maximum reasonable charge for the service/treatment billed by the Plaintiff.” This Court finds Defendant’s opinion to be entirely without merit.11
10. The issue as it relates to the element of reasonableness in PIP cases is not whether the Defendant paid what it believes to be a reasonable amount. To the contrary, the issue is whether the amount charged by the medical provider is reasonable.12
11. To date, there is no binding authority that holds that 80% of 200% of the 2008 Medicare Part B fee schedule is the ceiling on what a medical provider may charge to be considered reasonable.13 To the contrary, Fla. Stat. § 627.736(5)(a)2.f., which states that “. . . may not be less than [200% of] the allowable amount under the participating physicians schedule of Medicare Part B for 2007. . .” sets the floor with respect to the minimum reimbursement.
12. If this Court were to agree with Defendant’s position — which it does not — that 80% of 200% of the 2008 Medicare Part B fee schedule is the maximum amount that a medical provider may charge, such a ruling would serve to erroneously circumvent the binding precedent that unequivocally states that an insurance company may not limit a medical providers reimbursement to 80% of any fee schedule set forth in Fla. Stat. § 627.736 unless the applicable insurance policy makes a specific election to do so.14
13. In addition to the affidavit of Ms. Mohr, this Court also considered Defendant’s responses to Plaintiff’s discovery.
a. In Defendant’s response to Plaintiff’s Request for Admissions #9, Defendant admitted that “Defendant has no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was “not reasonable” for the care and treatment of the Plaintiff.”
b. In Defendant’s Answer to Plaintiff’s Interrogatory #5, Defendant stated that “The reasonableness of the amount of the Plaintiff’s charge was not considered, as USAA did not receive a Standard Disclosure and Acknowledgment form, and as such determined that the Plaintiff’s bill was not compensable. Because it determined that the bill was not compensable, the reasonableness of the charges was not considered, as there was no reason to do so. However, pursuant to § 627.736(4)(b), the defense that the charges were not reasonable can be raised at any time.”
14. Based on the forgoing, this Court finds that there is no genuine issue of material fact and the Plaintiff is therefore entitled to a judgment in its favor as a matter of law. Plaintiff’s Motion for Summary Judgment as to Reasonableness is GRANTED and Defendant’s Cross Motion for Final Summary Judgment is DENIED.
15. In the alternative, this Court sua sponte invokes Fla. Sm. Cl. R. 7.135 and finds that there is no triable issue and hereby summarily enters judgment in favor of the Plaintiff.
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1Defendant issued a policy of insurance effective May 25, 2008 to October 28, 2008.
2May 25, 2008.
3June 02, 2008.
4See Albelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a].
5Fla. R. Civ. P. 1.510(c); See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
6See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1996).
7Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
8McDonald v. Florida Dep’t of Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1141a].
9See Holl, 191 So. 2d at 43-44.
10See Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968) (holding that a party should have been afforded at least one opportunity to amend or supplement the affidavit); United Auto. Ins. Co. v. Peter F. Merkle, M.D., P.A. a/ a/ o Terry Laray, 32 So. 3d 159 (Fla. 4th DCA 2012) [35 Fla. L. Weekly D620a].
11See North Broward Hospital District d/ b/ a Broward General Medical Ctr. v. Royster, 544 So. 2d 1131 (Fla. 4th DCA 1989) (finding that “a conclusory affidavit is insufficient to rebut specific allegations of medical negligence as contained in the plaintiff’s affidavit.”); Brooks v. Serrano, 209 So. 2d 279 (Fla. 4th DCA 1968) (finding that the affidavit was insufficient to make the conclusive showing required by Holl v. Talcott because “The affidavit provided only a conclusion of the defendant without any expert explanation as to the standard of care and its application to the facts of the present case.”).
12See Windsor Imaging a/ a/ o Roneil Moms v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Fla. Broward Cty. Ct. 2011) (stating that “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.”).
13See The Personal Injury Clinic (a/ a/ o Alexis Simo) v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 1174a (Fla. Miami-Dade Cty. Ct. 2011) (holding that “Medicare Fee Schedule pricing, including the Participating Physician’s Fee Schedule related to Medicare Part B, is not relevant to a determination of what is “reasonable” under the categories enumerated in Fla. Stat. 627.736(5)(a)(1).”).
14See Kingsway Amigo Ins. Co. v. Ocean Health Inc., No. 4D10-4887 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; Geico Indemnity Co. v. Virtual Imaging Services, Inc., No. 3D10-2595 (Fla. 3DCA 2011) [36 Fla. L. Weekly D2597a].
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